“Imagine there’s no countries. It isn’t hard to do. Nothing to kill, or die for. And no religion too” – John Lennon, most certainly a dreamer, proposes a romanticised reality where a brotherhood of man shares the world equally in the year 1971. Today, Lennon’s dream has still yet to blossom.
Imagining is hard to do when country borders define your odds of survival based on monotheism of intellectual property (“IP”) rights. The rate at which innovation in health care has developed is undeniably impressive, yet the dispersion of its fruit is anything but. A recent social justice project from São Paulo seized my attention to the subject, as it advocated for a prejudice-free society on behalf of human immunodeficiency virus (“HIV”) positive people. Posters with HIV positive blood samples were placed throughout the city in order to humanize the animosity associated with the virus. “If prejudice is an illness, information is the cure”, preach the non-governmental organizations Life Support Group and Ogilvy Brazil, the agencies behind the HIV Positive Poster movement. An upsurge of support towards the posters circulated headlines far past the municipality of São Paulo; the limelight on the steps taken to battle the social prejudice issue, however, led to retrospect of the lacking lustre shone on medical access inequality across the globe.
The globally acclaimed documentary, Fire in the Blood (2013), demonstrates the way that IP law interacts with issues of profound importance – particularly, human rights. The film explores the problematic proprietary control over medicine and its consequences on lives in the global South. The HIV Positive Poster campaign highlights the contrast of opportunity for people living with the virus: the “powerful ad aims to show that just like the posters, HIV positive people can be productive members of society”. How can they, though, when not given the right to treatment? Property can be described as a bundle of rights that are institutionally enforceable. Thomas W. Merrill argues that the right to exclude is the ultimate stick in this bundle: “Deny someone the exclusion right and they do not have property”. This scheme of gate-keeping medication and other crucial resources is what drives the long-standing Western method for profitability. One exemplar of this was the price hike controversy featuring Martin Shkreli, scorned CEO of Turing Pharmaceuticals, who surged Daraprim (AIDS medication) prices of by 5000% over just one night.
Antiretroviral drugs (“ARVs”), which maximally suppress the HIV virus and stop the progression of the disease, linger in the briefcases of Western companies with price tags beyond the means of many – demonstrating the relationship between property rights and power. This effect can be observed in Michael A. Heller’s theory of Tragedy of the Anti-commons: the state of a gridlock economy, one in which too many property rights allow individuals to exclude beyond efficient means. Realistic costs of ARVs lead to the conclusion that they are not a scarce resource, and thus the mass underuse of them is unjustified. The more common that this IP becomes, the more benefit to humanity. The foundation of property and IP law is at a crossroads between moral and fiscal duty. It would be morally just to distribute lifesaving medication to people of lesser means and promote the social policy that comes with it, yet it is also the financial duty of the companies to generate profit for money spent on developing IP.
That said, maintaining IP value can be possible together with fulfilling the moral duty of treating people that lack financial resources. Firstly, pharmaceutical companies can uphold patent rights and propose a sale to international organisations commonly associated with foreign aid such as the World Health Organization, the International Monetary Fund, and the Médecins Sans Frontières/Doctors Without Borders. The host government may then subsidize the costs of the drug as part of its foreign aid policy. However, selling the drug by unit at a fraction of the original cost will not allow for profitable margins; the companies should sell the ARVs in bulk and settle on a package price for the overall service which can be liquidated as funds or tax breaks.
The needs of every country can often be reflected in the patent laws that it makes. If these laws are appropriately designed, they promote innovation – if not, suppression. Property law at its core is about the distribution of wealth and access to resources. It is reasonable to acknowledge that the pharmaceutical industry was villainized in the documentary; the IP lesson learnt is to not kill the goose that laid the golden egg. IP turns ideas into something transferrable and marketable, yielding virtue if designed judiciously.
. John Lennon, Imagine. Apple, 1971. www.youtube.com/watch?v=DVg2EJvvlF8.
. Minda Smiley, (2015) Ad of the Day: NGO Life Support Group (GIV) – The HIV Positive Poster. Thedrum.com. http://www.thedrum.com/news/2015/05/01/ad-day-ngo-life-support-group-giv-hiv-positive-poster.
. Fire in the Blood. Directed by Dylan Mohan Gray. Sparkwater India, 2013. DVD.
. Supra note 3.
. Bruce Ziff and Jeremy De Beer, (2012). A Property Law Reader: Cases, Questions, and Commentary. 3:6. 978-0-7798-7246-6. Print.
. Matthew Herper, (2015). Martin Shkreli Won’t Suffer Because Of That $1-A-Pill Competitor. Here’s Why. Forbes. http://www.forbes.com/sites/matthewherper/2015/10/23/suckers-that-1-a-pill-competitor-wont-hurt-martin-shkreli-one-bit/.
. World Health Organization. (2016). Treatment and care. http://www.who.int/hiv/topics/treatment/en/