All That Glitters is Not Gold: Intellectual Property or Intellectual Liberty? Part 1
A two-part expose on the critical overlaps between intellectual property and ethics, and how the effects of such overlaps have resonated in the real world. Abundantly apt, amid the chaos that the Covid-19 pandemic has plunged mankind into.
All that glisters is not gold;
Often have you heard that told:
Many a man his life hath sold
But my outside to behold:
Gilded tombs do worms enfold.
The Merchant of Venice¹
Choosing the golden casket, The Prince of Morocco had expected to be granted Portia’s hand in marriage. He retrieved the quoted inscription instead,² and left empty-handed.
Choosing from gold, silver, and lead, the Prince’s dilemma deserves empathy: superficial allure can prove to be a disappointing distraction. Today’s “invisible gold”,³ intellectual property (“IP”), is increasingly viewed as an attractive and valuable asset. But is this justifiably so?
Like the Prince, stakeholders pay great attention to the constructive aspects of IP rights (“IPRs”), while other incongruous facets are inadvertently swept under the carpet.
Peeking into Pandora’s box, this two-part expose serves as a critical commentary on a particularly sensitive, but frequently overlooked feature — the tensions between IP and ethics. Lessons will be gleaned from the exploration of parallel ethical issues that plague copyright, and patent protection. Even though “worms enfold”, such an evaluation is timely for there is a need to learn from, and avoid, the Prince’s mistakes.
Recognising the unavoidable intersection between ethics and intellectual property
Glistering intellectual property: Basic justifications
Intangible and non-rivalrous,⁴ the exclusive legal rights granted over all forms of intellectual output⁵ are collectively known as IP.⁶ As a “legal means to appropriate knowledge,”⁷ IPRs are a “vital and growing part of the global economy.”⁸ The very concept of IP finds itself positioned awkwardly with ethics. For one, IPRs “distort the efficient allocation of resources,”⁹ and require some fundamental justification.¹⁰
The proliferation of IP is emphatically rooted in utilitarianism:¹¹ to benefit society as a whole, certain activities are limited to a select few.¹² This incentive system¹³ rewards creativity economically,¹⁴ securing the delicate balance between legal exclusivity and the existence of a healthy public domain.¹⁵ Additionally, the Lockean-based mixed-labour theory guarantees a person proprietary interest in a work for which he has expanded labour and thought in.¹⁶ Other deontological foundations focus on specific interests:¹⁷ natural rights advocates proclaim the classical inseparability of creator and creation,¹⁸ while consequentialists argue for justifications based on the regime’s effects.¹⁹
Though not theoretically perpetual,²⁰ IPRs effectively restrict intellectual liberty — the complete freedom from interference in gaining knowledge. The mottled attempts in justification foreshadow other haphazard attempts at legitimizing “the most valuable [asset] of the twenty-first century.”²¹
Not a mere golden casket
IP structures are driven forcefully by commercial and economic aspirations.²² Its golden casket appeal is bolstered by the perception that these rights are a “central resource for creating wealth.”²³ This is only natural given the marketability of IP, and its lucrative nature of producing income through royalties, licensing fees, and franchise fees. Further, IP is today recognized as viable loan collateral.²⁴
Beneath its economic façade lurk ethical tensions. The human rights approach²⁵ of access and not restrictions²⁶ belie the exclusivity and control festered by IP regimes. An almost schizophrenic identity is conceived, symbolic of its many conflicting interests.
At the first level, the very acknowledgement of IP clashes with intellectual liberty as a human right.²⁷ At the second, more specific level, IPRs that raise “substantial impediments to access” clash with other human rights.²⁸ These are displayed structurally as follows:
IP structures affect more than creators’ interests. Yet, these consequences are often ignored.²⁹ Therefore, to truly rationalise IP protection,³⁰ meaningful analysis is required. By employing an ad hoc micro-perspective, the theoretical foundations of patents and copyrights will be explored.³¹
Lessons in IP: Beyond the superficial glean
Pharmaceutical patents — the perennial golden goose
Patents in modern healthcare: The “what”, “why”, and “how”
Inventors are awarded patents — exclusive, government-granted, negative rights³² — that provide patentees with a monopoly over their creation,³³ in exchange for enabling disclosure.³⁴ From a human rights perspective, patents correct market failure,³⁵ because they provide incentives to invent, innovate, and disclose the means of such innovation.³⁶
Patents are a necessary evil. They help recoup the high costs of innovation, especially for the pharmaceutical industry,³⁷ which bears considerable risks.³⁸
The temporary monopoly granted allows firms to charge higher prices,³⁹ boosting competition for the discovery of new drugs.⁴⁰ This consequentialist tendency is not without difficulties⁴¹ — patents inevitably result in “the loss of some degree of access and desirable competition.”⁴²
In the pharmaceutical industry, patents tend to exacerbate inaccessibility to protected drugs,⁴³ much to the grievances of developing countries, especially in relation to the Acquired Immunodeficiency Syndrome (“AIDS”) epidemic, where tensions between IP and morality are the greatest.⁴⁴
Access to medicines: Patient welfare versus patent warfare
Alluding to utilitarianism, patent systems benefit society by encouraging incentivised output while adding to a growing pool of knowledge.⁴⁵ International treaties, such as the Agreement on Trade Related Aspects of Intellectual Property Rights, strengthen this causal connection.⁴⁶
Conversely, the “consumption of medicines is sensitive to price,”⁴⁷ and maintaining the “highest attainable standard”⁴⁸ of health is a socio-economic right involving the state,⁴⁹ international law,⁵⁰ and transnational pharmaceutical corporations, all of which “have a responsibility to promote access to medicines.”⁵¹ Secured by the Universal Declaration of Human Rights (“UDHR”),⁵² patient welfare centres on the right to healthcare,⁵³ of which access to essential medicines is related.⁵⁴
Patent rights oppose the right of access to medicines, which cannot be “fully and simultaneously enforced within the current regime”.⁵⁵ The deep tensions point towards some form of moral illegitimacy.⁵⁶ The controversy is most stark in the AIDS epidemic,⁵⁷ where IP regimes continue to “affect [developing countries’] efforts to improve public health”⁵⁸ by “frustrating public health programs”.⁵⁹ 95% of AIDS sufferers reside in developing sub-Saharan African countries⁶⁰ plagued by poverty.⁶¹
While each patient’s required access to patented anti-retroviral drugs costs US$10,000 annually,⁶² he has on average US$8 per year to spend on medication.⁶³ Healthcare infrastructure further limits access, aggravating the situation.⁶⁴
Evidently, there is an urgent need to resolve the conflict between recouping research and development costs and social costs.⁶⁵ On its own, innovation is “a cruel taunt,”⁶⁶ when prices are simply unaffordable. Yet, there is also a real need to prevent free-riding.⁶⁷
To be continued in part 2.
- William Shakespeare, The Merchant of Venice (Washington Square Press, 2003) Act II, Scene VII, lines 69–73.
- Incomplete verse; for full verse, see ibid, at lines 69–78.
- See David Llewelyn, Invisible Gold in Asia: Creating Wealth Through Intellectual Property (Marshall Cavendish, 2010).Steven Horowitz, “Rethinking Lockean Copyright and Fair Use” 10 Deakin LR 209 (2005) at 211.
- Steven Horowitz, “Rethinking Lockean Copyright and Fair Use” 10 Deakin LR 209 (2005) at 211.
- Susanna Leong, Intellectual Law of Singapore (Academy Publishing, 2013) at para 01.003.
- James and Wells, Intellectual Property Law in New Zealand (Brookers, 2007) at 1.
- Laurence Helfer and Greame Austin, Human Rights and Intellectual Property: Mapping the Global Interface (Cambridge University Press, 2011) at 20.
- Scott Kieff & Tony Paredes, Perspectives On Commercializing Innovation (Cambridge University Press, 2012) at 1.
- Leong, supra n 6.
- Chidi Oguamanam, “Beyond Theories: Intellectual Property Dynamics in the Global Knowledge Economy” 9 Wake Forest IP LJ 104 (2009) at 117.
- Robin Feldman, “Intellectual Property Wrongs” 18 Stan. JL Bus. & Fin. 250 (2013) at 252.
- William Robinson, Law of Patents for Useful Inventions (1890) at 101.
- See Edith Penrose, The Economics of the International Patent System (1951).
- Ikechi Mgbeoji, Global Biopiracy: Patents, Plants, and Indigenous Knowledge (2006) at 21.
- See William Landes & Richard Posner, The Economic Structure of Intellectual Property Law (2003).
- See John Locke, Second Treatise of Government (Macpherson, 1980).
- Shubha Ghosh, “Duty, Consequences, and Intellectual Property” 10 U. St. Thomas LJ 801 (2013) at 818–819.
- Carys Craig, “Locke, Labour and Limiting the Author’s Right: A Warning Against a Lockean Approach to Copyright,” 28 Queens LJ 1 (2002) at 9–10.
- Ghosh, supra n 17.
- Art 1(2) of the Agreement of Trade Related Aspects of Intellectual Property Rights (1994) (“TRIPS”).
- Bruce Schaeffer & Susan Robins, “Valuation of Intangible Assets in Franchise Companies and Multinational Groups: A Current Issue” 27 Franchise LJ 185 (2008) at 185.
- Mgbeoji, supra n 14, at 23–25.
- Gordon Smith & Russell Parr, Intellectual Property: Valuation, Exploitation, and Infringement Damages (Wiley & Sons, 2005) at 3.
- Tan Weizhen, “Singapore firms can now use IP as collateral for bank loans” Today Online (9 April 2014) <http://www.todayonline.com/business/singapore-firms-can-now-use-ip-assets-collateral-bank-loans> (accessed 10 Oct 2014).
- Helfer and Austin, supra n 7, at 77.
- Kristen Osenga, “Get the Balance Right!: Squaring Access with Patent Protection” 25 Pac. McGeorge Global Bus. & Dev LJ 309 (2012) at 309–310.
- Hugh Breaky, Intellectual Liberty: Natural Rights and Intellectual Property (Ashgate Publishing, 2012) at 135.
- Ghosh, supra n 17, at 802.
- Leong, supra n 6.
- Horowitz, supra n 4, at 209.
- See Cynthia Ho, “Patent Breaking or Balancing?: Separating Strands of Fact from Fiction under TRIPS” 34 NCJ Int’l L & Com Reg 371 (2009) at 381.
- Helfer and Austin, supra n 7, at 17.
- Article 28, TRIPS.
- Annabelle Lever, New Frontiers in the Philosophy of Intellectual Property (Cambridge University Press, 2012) at 111.
- See David S. Olson, Taking the Utilitarian Basis for Patent Law Seriously: The Case for Restricting Patentable Subject Matter, 82 Temple LR 181 (2009) at 195–196.
- Michele Boldrin and David Levin, Against Intellectual Monopoly (Cambridge University Press, 2008) at 212, where it was mentioned that bringing a single new drug to market costs as high as $800 million.
- Elizabeth Ng, “Evolving Landscape of Patent Remedies in a Changing Marketplace”  SAcLJ 27 at 637.
- Shanker Singham, “Competition Policy and the Stimulation of Innovation: TRIPS and the Interface Between Competition and Patent Protection in the Pharmaceutical Industry, 26 Brooklyn J Int’l L 363 (2000) at 373.
- Andrew Pollack, “F.D.A approves a new drug for advanced breast cancer”, The New York Times (22 February 2013).
- See Alan Story, The Oxfam “Access to Essential Medicines” Project: Some patent and research and development issues (Oxfam International, Oxford UK 2000).
- Ng, supra n 38.
- Annex IC of the Marrakesh Agreement Establishing the WTO, signed 15th April 1994, entered into force 1 January 1995.
- Sarah Joseph, “Pharmaceutical Corporations and Access to Drugs: The “Fourth Wave” of Corporate Human Rights Scrutiny” 25 Hum Rts Q 425 (2003) at 428.
- Thomas Pogge, Matthew Rimmer & Kim Rubenstein, Incentives for Global Public Health: Patent Law and Access to Essential Medicines (Cambridge University Press, 2010) at 101–132.
- Art 27, TRIPS. See Cynthia Ho, “A New World Order for Addressing Patent Rights and Public Health” 82 Chi-Kent L. Rev. 1469 at 1476.
- Xiao Peng, “TRIPS Agreement and public health crisis in developing countries: Problems and solutions” 6 US-China Law Review 32 (2009) at 43.
- African Commission on Human and Peoples’ Rights, Resolution on Access to Health and Needed Medicines in Africa, ACHPR/Res.141 (XXXXIIII)08 (November 24, 2008), <http://www.achpr.org/english/resolutions/resolutionl4len.htm> (accessed 10 Oct 2014).
- Nitya Nanda & Ritu Lodha, “Making Essential Medicines Affordable to the Poor” 20(3) Wis. Int’l LJ 581 (2002) at 581.
- Lissett Ferreira, “Access to Affordable HIV/AIDS Drugs: The Human Rights Obligations of Multinational Pharmaceutical Corporations” 71(3) Fordham LR 113 (2002) at 1148–1159.
- Heinz Kug, “Politics, and Access to Essential Medicines in Developing Countries”, 36 Pol & Soc’y 207(2008) at 239.
- Art. 25, UDHR.
- The Hon Michael Kirby AC CMG, “Healthcare and Global Justice” 2010 SAcLJ 38 at 800
- Brigit Toebes, The Right to Health as a Human Right in International Law (1999) at 259.
- Siddartha Rao, “Closing the Global Drug Gap: A Pragmatic Approach to the Problem of Access to Medicines” 3 J. Legal Tech. Risk Mgmt. 1 (2008) at 5.
- Michael Ilg, “Market Competition in Aid of Humanitarian Concern: Reconsidering Pharmaceutical Competition in Aid of Humanitarian Concern” 9 Chi.-Kent J. Intell. Prop. 149 (2010) at 150–151.
- Elizabeth Ng, “Balancing Patents and Access to Medicines” (2009) 21 SAcLJ 47 at 458.
- CIPR, Integrating Intellectual Property Rights and Development Policy (2002) at 29 <http://www.ipr commission.org/> (accessed 12 Oct 2014).
- See WIPO Patent Agenda: Options for Development of the International Patent System.
- David Barnard, “In the High Court of South Africa, Case №4138/98”, 12 Kennedy Inst. Of Ethics 159 (2002) at 159.
- Gregor Adams, Consensus Statement on Anti-retroviral Treatment for AIDS in Poor Countries (March 2001) at 3 <http://www.hsph.harvard.edu/hai/conferencesevents/2001/consensus_aids therapy.pdf> (accessed 12 Oct 2014).
- See BC Mercurio, “Resolving the Public Health Crisis in the Developing World: Problems and Barriers of Access to Essential Medicines” 5 Northwestern U J Int’l HR 1.
- CIPR, supra n 58.
- See Ellen Hoen, “TRIPS, Pharmaceutical Patents, and Access to Essential Medicines: A Long Way from Seattle to Doha” 3 CHI.J. INT’L L. 27 (2002) at 29–30.
- Bently L and Sherman B, Intellectual Property Law (Oxford University Press, 2009).