Promoting health or securing the market? The right to health and intellectual property between radical contestation and accommodation

The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) firmly enshrined a legal framework guaranteeing enforceable minimum intellectual property (IP) standards at the international level. But it also resulted in a greater inclusion of intellectual property rights (IPRs) in wider political debates between developing and industrialised countries – for instance on questions of global health and development. This paper argues that the increasing reach and efficacy of the IP regime has given rise to wider challenges to the IP system needing urgent conceptual analysis. The focus here is on IP’s increasing confrontation with the right to health, which is analysed not as an encounter of radically opposed legal systems, but as an ambivalent process in which the right to health operates as a challenge to the IP system – and, paradoxically, as an argument for its extension. To account for this ambivalence, the analysis develops a Foucauldian understanding of the right to health’s potential challenge, re-evaluating the right to health’s role as a part of a process of incremental realisation of governmental priorities, which negotiates tensions between guaranteeing the function of the economy and improving the health of populations. While this incremental process draws attention to the limitations of the right to health’s potential to challenge the IP regime, it also highlights this regime’s difficulty in accommodating a wider range of active entrepreneurial subjects.