Moral Values v. Intellectual Property: This is a Tough One

Change. Radical change; a different point of view. Rebellious people not fully socialized and tamed to follow ‘the system” are clawing at the establishment: corporations, brand-names, franchises, patents, lobbyists, laws, lawyers, moneyed interests and the powerful. This is the establishment in America, and America is the establishment to the rest of the world.

A serious challenge, or more like the threat of a serious challenge materialized a few years ago. Not the terrorist attack. That is a threat to our lives and our way of life. Instead we saw the beginning of a real radical revolution challenging the system America helped create. A country, the nation of Brazil, announced (and then withdrew) the threat to no longer respect the international system which ensures and protects patents. They did this because thousands of their fellow citizens were dying of AIDS and the government was unable to adequately treat them if it paid anywhere near the market price for the pharmaceutical companies’ drugs. Twenty million people in the developing world have HIV/AIDS.

The industrialized world adheres to patent protections, even reluctantly allowing people to die to protect an international system that protects private property and capital. This system has brought both affluence and very sophisticated drugs and medical treatments to the industrialized world (the U.S., Western Europe and Japan), and is very slowly, yet increasingly, bringing affluence to other parts of the world such as Eastern Europe, Asia and Latin America.

Brazil, a country from “the developing world” threatened to become the first country to publicly announce it would break international trade laws and to allow production of a generic replication of a patented anti-AIDS drug. This is big news, and a real challenge on many fronts.

For us in America, debate is related to prescription drugs debate about whether we should (a) immediately allow importation of drugs from Canada or (b) regulate the price of prescription drugs ourselves. Our question is how to keep the price of prescription drugs down so they are affordable in a system where the prices paid for newer drugs are astronomically high. Further disconcerting is the fact that many experts agree that drug companies have much larger profit margins on their products than most other businesses.

Worst yet, the pharmaceutical companies have recently reached beyond their usual practice of marketing their drugs to doctors, who then decide which drugs to prescribe, and started advertising their drugs to the mass market the same way Proctor and Gamble sells soap – directly to the consumer. Talk about “pushing drugs”. When lawyers advertise like this – trying to create demand – they’re called sleazy.

The pharmaceutical companies, like the music and video recording and software industries, claim that patent and trademark protections are required to protect the value of the creative process, human ingenuity and the creation of new and better drugs for that benefit us all. The pharmaceuticals also argue that the high cost of F.D.A approval of the new drugs require multi-year long payback periods as reimbursement for the cost of developing the drug (and to compensate for the development of the other pharmaceutical products which never made it to market). It is undoubtedly true that bringing new drugs to market necessitates a very high risk and cost to the companies. Further, if we make an exception and allow anti-AIDS drugs to break international patent protections system to save lives – what’s next, other drugs not intended for life or death treatment? And after this, what’s next, computer software protections, copyrights on music, books, and plays? How will we protect, not only property, but the value of one’s creative ideas and the cost of developing them? We cannot minimize the fact that people with diseases who can only be treated with new advanced drug treatments are very, very thankful they exist (and implicitly for the system that encourages their creation).

Increasingly, concerned people around the world are questioning global integration and globalization. Here, one country, Brazil – probably speaking for others as well – said the globally integrated system is not working, (at least, in this context). It threatened that it could and should copy the chemical formulas of international drug companies to make drugs that will save the lives of its people. The Brazilian government spoke loud and clear: if you the drug company will not lower your price to make the drug available to dying people we will imitate them ourselves. Your international system isn’t working for us. Eventually, the drug companies backed down and sold anti HIV infection drugs at a cut-rate price, nearer to the price it sells the drug in Africa.

The issue itself however should not go away. The heartfelt appeal of Brazil was real. The people it spoke for are truly needy and the drug companies profits are immense. But the integrity of the international patent and trade system is also vitally important. If
Brazil were to violate the patent protection part of the international trade system would it then still have the right to complain about European governments giving price supports to their farmers, and thus keeping Brazilian farmers poor, because they cannot compete with government subsidized farmers from other countries? Further, can there be a system wherein a country has the right to pick and chose which international agreements it will adhere to. Isn’t this like you or me withholding a percentage of our taxes for government programs we do not support? Wouldn’t the whole system then break down?
Or is Brazil encouraging us to make an intelligent exception to free market and private intellectual property protections due to the basic value of people’s health? After all, due to the value of education, we do not ask students in school who attain less than a B average to resign and stop wasting the system’s resources for the sake of efficiency. The point is that our economic system, though generally controlled by the free market, appropriately has other values placed upon it besides just the freedom and efficiency of the market. There are some values which we have concluded are more important than economic efficiency. Doesn’t a country have the right to reject a system, which allows its citizens to die? These are hard issues, just the kind of issues an integrated world forces us to decide. In the end the Swiss drug company Roche, came to a price agreement with Brazil, which settled the matter for now.

Are we in America ready to regulate drug prices so that many people can get good drug treatment, even at the cost perhaps of lessening the creation of new and even better drugs? I would be, I don’t know about you?