The Flexibilization of Intellectual Property Rights During Health Crises: A Case Study of Brazil's Response to AIDS and COVID Sanitary Crises

Abstract

Intellectual property law is traditionally seen as a rigid law with little room for maneuver in cases of crisis. In this article, through three case studies, we seek to discuss how health crises have affected intellectual property rights, especially in Brazil and the relationship of Brazilian decision-making with internationally accepted legal frameworks. In the first case, on the AIDS crisis, we discuss the initiatives of compulsory licenses in Brazil and the debate on the Doha Declaration on public health, in which the international community recognized the national margin of appreciation of TRIPs in specific cases, making the Brazilian government's action viable. In the second case, on COVID, we discuss some proposals for waiver of intellectual property rights that, although not effectively implemented, were important to pressure economic players to find solutions to transfer technology and expand the production of newly discovered vaccines, with the transfer of technology and expansion of Brazilian vaccine factories. In the third case, also on COVID, we discuss how the health crisis induced the Brazilian Judiciary, Executive and Legislative branches to change different points of the intellectual property law that had been under discussion for many years and reduced the extent of these rights, to increase access to medicines, but limited by international minimum standards. We conclude that intellectual property law is important for the development of new medicines to deal with health crises, while at the same time these crises are important for the construction of law that prevents abuses by dominant economic actors.

Keywords: Intellectual Property Flexibilities, Health crises, Innovation, Brazil

JEL Classification: k32, k33