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. The risk of harm created by counterfeit medicines provides 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 provides a justification for new international treaties, such as the recent Anti-Counterfeiting Trade Agreement, that require increased government enforcement of intellectual property rights, even where the public interest justifications are relatively weak.
The counterfeit medicines narrative gives private industry 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 to determine when, and to what extent, government monitoring and enforcement of intellectual property rights is warranted.
J. Janewa OseiTutu, Private Rights For The Public Good?, 66 SMU L. Rev. 767 (2013)