Private Law Theory

Abstract:
The counterfeit medicines discussion is an example of how the use of a turbid rationale for greater intellectual property protections serves sophisticated private interests, while potentially harming the public interest. Counterfeit medicines provide a compelling counter-narrative to the access to medicines’ critique of intellectual property rights. Intellectual property advocates and the pharmaceutical industry have portrayed poor global enforcement of intellectual property rights as contributing to the proliferation of dangerous counterfeit medications. Yet, the deliberate linkage in the literature between weak intellectual property rights and the harms caused by counterfeit medicines serves to justify international treaties, like the recent Anti-Counterfeiting Trade Agreement, that require increased government enforcement of intellectual property rights, even when the public interest justifications seem relatively weak. The counterfeit medicines narrative provides industry with a public interest rationale instead of a profit-oriented rationale for demanding government enforcement of private intellectual property rights. This article advocates a public interest test in order to determine when, and to what extent, government monitoring and enforcement of intellectual property rights is warranted.

Osei Tutu, J. Janewa, Private Rights for the Public Good? (May 17, 2013). Southern Methodist University Law Review, Forthcoming.

First posted 2013-05-19 07:08:05