Ethics and IP policy

HIV and Big Pharma

Economic rationale for strong IP policies
• Knowledge is a public good that can be put to multiple uses.

• Trade-off between disclosure and diffusion ( Arrow paradox)

• Patents offer a monopoly right in return for diffusion of new

technological knowledge
Ethical rationale for IPR
• Naturalist view: a creator has a right to their creations and rewards
from their creations (Locke, Nozick)
-- Traditional medicines where knowledge was collectively produced and
reproduced have created problems here as ownership hard to define
• Utilitarian view: Broader social welfare can be improved by legalising
IP. (Maitland, Rosenberg)
-- Modern medicines where drugs are produced after years of R&D find access to
medicines without higher prices very difficult and here the utilitarian vew breaks
down
 Policy context
• Scholars worry that the costs of monopoly rights enshrined in IPR may
outweigh the benefits of diffusion because of reduced access
• Reduced access can be due to higher (monopoly) prices
• Reduced access may also be due to cumulativeness of inventions
• Increasing attention to the competition policy implications of IPR
regimes, especially in digital contexts where the second aspect more
important
 Policy context
• National or international economy
• In a national context, access issues are reflected as the tension
between rights of producers and rights of consumers (Indian patent
Act, 1974)
• But in an international context, the tensions are between the rights of
innovators who are exporters versus innovators who are importers
(TRIPS was a result of US exporter concerns)
• International context produces a more acute access problem because
technologies are “known to exist” ( mRNA, TB drugs)
• Humanitarian solutions are seen to be impeded by IP law
 HIV and retroviral drugs
• HIV deaths in Africa created the first major crisis for the TRIPS
mandated IPR system
• Drugs were available but unaffordable
• Access to medicine groups began a campaign challenging the moral
position of Drug companies
• CIPLA, produced a much cheaper (generic) retroviral drug
• CIPLA was sued for patent infringement but alliance with access to
medicine groups led to a creative policy solution
• The Medicines Patent Pool used compulsory licensing provisions to
provide royalty based access to essential technologies for those drugs
Ethical arguments can cut both ways
• Indian widely admired for its generic industry and its ethical stance in
taking on Big pharma

• But overtime attention to quality has lapsed

• Examples:
-- falsification of data for FDA approvals at Ranbaxy
--Cough syrup deaths ( in Gambia and Ukraine)

• No oversight of drug quality comparable to that in the West

Issues of access important for other public
goods
• Environment and green transition

• Moral outrage is limited and Ethics are not moving the policy needle
politically as happened in drugs

• Why??

• Suffering not sharp and acute?

Useful further reading
• Susan Kell and Aseem Prakash (2004) Using Ideas Strategically: The Contest
Between Business and NGO Networks in Intellectual Property Rights,
International Studies Quarterly, Volume 48, Issue 1, March 2004, Pages 143–175,
https://doi.org/10.1111/j.0020-8833.2004.00295.x
• Jorn Sonderholm (2010), Ethical Issues Surrounding Intellectual Property Rights,
Philosophy Compass 5/12 (2010): 1107–1115, https://doi.org/10.1111/j.1747-
9991.2010.00358.x
• Taubman, Antony, ‘Nothing for Us, Without Us'. Growth and Diversity in
Observers' Participation in WIPO (January 3, 2020). Research Handbook on the
World Intellectual Property Organization: The First 50 Years and Beyond (Sam
Ricketson ed., Edward Elgar Publishing, 2020 Forthcoming), Available at SSRN:
https://ssrn.com/abstract=3530858 or http://dx.doi.org/10.2139/ssrn.3530858