Intellectual property rights are the rights given to individuals over the creations of their minds. They generally give the inventor an exclusive right over the use of their creation for a given period to limit the risk of their ideas being exploited by others. Intellectual property rights are used because they incentivize entrepreneurs to continue to make advances in the face of adversity. Intellectual property rights facilitate the free flow of information by sharing the protected know-how critical to the original invention, leading to innovations and improvements on existing ones. Intellectual Property rights help reduce other risks by creating and supports high-paying jobs, driving economic growth, competitiveness, and protecting consumers. Intellectual property rights reduce risk and increase business confidence. Thus, by protecting intellectual property (IP), you are protecting a wide range of interests.
Intellectual property is by no means a new concept. The idea of intellectual property was first seen in Ancient Greece. Many notable references to intellectual property in ancient times are cited in The Genesis of American Patent and Copyright Law (Bugbee 1967). Here the first example of intellectual property was described when Vitruvius (80 BC), a judge at a literary contest in Alexandria, exposed poets who had stolen the works of other writers. These people were tried, convicted, and disgraced for using other people’s words. Examples such as this demonstrate how long our idea of property has been the status quo.
But more recently our rooted ideas of intellectual property have been challenged once more in the face of morality. The coronavirus pandemic has raised questions as to whether our idea of property prevents ethical decision-making surrounding public access to medicines and covid-19 vaccinations, as well as whether some IP protections should be provisionally overridden to deal with the coronavirus pandemic. It is ultimately a question of risk.
Currently, the IP and patent laws allow pharmaceutical companies to protect their investment and profits from developing new products. The process of drug and treatment development can take years and therefore enforceable legal rights are crucial. Without the confidence of protection, companies may not invest in life-saving pharmaceuticals, which in turn would create significant risks to society. However, some governments have recently called for special measures to be used during the pandemic to allow compulsory licensing over patents related to technologies used against coronavirus. This will enable governments to license the use of patented inventions to third parties without the consent of the IP rights holder. Other groups have called for companies to make IP, relevant to Covid-19, free of charge until the pandemic is over. All of these efforts to alter IP rights are for the sake of making life-saving coronavirus treatments and vaccinations more readily available whilst still acknowledging that property rights have been an integral part of society and its development.
There are extensive discussions of property in many philosophical texts throughout history where they discuss whether property is justified. These discussions help us appreciate the philosophical arguments which centre the current IP right discussions as presented by intellectual owners and governments/consumers.
Firstly, let us explore the history of property as a concept. Hobbes and Hume believed that there is no natural ‘mine’ and instead property must be understood as the creation of the sovereign state, an artificial product of an agreement that we as members of the society grant on the possession of external goods and leave everyone in the peaceable enjoyment of what he may acquire by his fortune and industry.
Whereas, Locke, on the other hand, was adamant that property could have been instituted in a state of nature without any special conventions or political decisions. Locke believed that you’re born with natural rights that cannot be infringed upon by other people. These rights include self-ownership rights- a property right over your own body. This right can be extended to anything that you work using your body. For example, if you grow an apple tree you have a property right over the fruits of your labour because it is an extension of your natural rights. The same applies to using your creativity and intellectual ability to make something previously useless into something useful. For example, turning horsehair into a violin bow – he describes this as labour mixing. Although Locke does not explicitly speak of theoretical ideas, the conditions and reasoning can be applied in the same way.
However, to appreciate the ethical arguments in favour of and against property rights, we must look to philosophers such as Plato. Plato attempted to answer whether private property is justified to evaluate its ethical grounding. Plato maintained that collective ownership is favourable to promote common interests and to avoid social discord that could arise if some were to suffer, and others were to rejoice at the outcome’s property rights insight. This account, in modern terms, is more socialist and similarities can be seen between Plato’s argument and the argument presented by governments wanting the IP relaxed during the pandemic.
In contrast, pharmaceutical companies are more likely to align with Aristotle’s account of property. Aristotle believed, in opposition to Plato, that private ownership promotes virtues like prudence and responsibility, for when everyone has different interests, no one will complain about someone fulfilling their own interest and everyone will make more progress because they will have their own interests to tend to.
There are risks associated with both arguments. If pharmaceutical companies do not maintain their IP rights, they lose the financial incentives which drive innovation. Furthermore, if IP rights are given to companies that are too immature to produce the covid-19 vaccinations reliably and consistently, essential resources could be wasted and poor-quality vaccinations could be manufactured, risking consumer health and trust. On the other hand, if IP rights remain during a period of urgent medical need, vaccination prices could be inflated reducing accessibility to treatment, this will often disproportionally affect minority groups- this raises several human right concerns. Moreover, without a comprehensive effort to guarantee access to a vaccine for everyone who needs it, we risk giving certain groups priority access. This will be given based on one’s ability to pay, nationality, country of residence and class rather than need. This risks long term distrust and strained international relations. Furthermore, without consideration of the global interests, we quickly risk a further economic decline, resulting in more poverty and a decline in mental health.
Ultimately, like many moral philosophies, this is a discussion of minimising harm and risk to many. Since it is not certain in any case whether IP right relaxation or enforcement will minimise harm, we cannot definitively choose one or the other. However, we can continue to explore philosophies, understand the situation and create measures that minimise the risks to both companies and our communities alike.
