Lucia Vitale
Department of Politics, University of California, Santa Cruz
Amy Kapczynski defines intellectual property rights as an “…alchemy that turns immaterial expressions and ideas into tradable commodities…” and, more specifically, the “…legal entitlements that give their holders the ability to prevent others from copying or deploying the covered information in specific ways” (2010, 23). As described by Nichols (2018), intellectual property is the idea that knowledge might be captured as a unit of property and then kept from others who might benefit from its use. It is often justified with the assertion that protecting the processes of research and development has bigger, generalizable benefits to society. “In this way, the interests of the industries benefiting from the expansion of intellectual property rights are articulated as synonymous with those of the general interest…” (247). ‘Intellectual property rights’ as a term may be broken into two constitutive elements: that of ‘property’, and that of ‘rights’. In order for pharmaceutical companies to claim ownership over an immaterial object, each of these components must undergo important permutations.
As enshrined in the World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), intellectual property comes in three main forms, patents, copyrights, and trademarks. In order for a patent to be granted, an invention must be new, useful and ‘nonobvious,’ and once granted, an inventor can prevent others from making, using or selling their invention for twenty years. Once a copyright is granted, which are principally used for expressive or literary works, authors or artists can prevent others from copying or performing ‘derivatives’ of their original work for upwards of 100 years. The trademark is used to protect a distinctive trade name in commerce, thereby permitting the holder to place protections around its use so as to “…ensure that consumers are not confused about the origin of the good” (Kapczynski 2010, 23). Heywood (2002) calls the TRIPS agreement “the most refined institutional attack on health” for the ways it not only expanded Western intellectual property law, but also the way TRIPS suddenly invoked rights language to defend intellectual property ‘rights’ (221). Patent protections have arguably had some of the most explicit consequences for global wellbeing and carry with them a constellation of institutions which uphold and protect these ‘immaterial expressions.’
Marx’s Capital (1867) considers property an indispensable part of the capitalist production cycle. Without landed property and rent, a capitalist will be unable to accumulate from the commons. Harvey (2018) writes that while Marx was attentive to the distinctive capitalist forms of property, he was unable to predict the extension of market logics into the immaterial realm:
What [Marx] did not anticipate was that new forms of capitalist rent might also evolve within the evolutionary structures of capitalism and that rent-seeking might go well beyond that which he found both necessary and functional as well as politically tolerable for a mature form of capitalist development…what are we to make of rent-seeking through ownership of intellectual property rights? (Harvey 2018, 37)
Just as capitalist economies developed institutions to protect the landed property of the bourgeois class in Marx’s time, so too have contemporary capitalist economies developed institutions to protect the immaterial intellectual property of actors such as multinational corporations. If we see new, useful and ‘nonobvious’ ideas as a part of the commons just as landed property was, in Marx’s eyes, a part of the commons, then the notion of who is able to claim these rights becomes an important one.
In a 1949 essay critiquing the Universal Declaration of Human Rights (UDHR), Hannah Arendt provocatively asks her reader “who has a right to claim rights?” (Arendt 1949a). Centering the individual, Arendt asserts that the ‘universal’ and ‘inalienable’ nature of the rights put forth by the UDHR cannot exist outside of a political community which can guarantee these rights. The Declaration therefore embodies a paradox, how can the rights of man be inalienable if they require a state and a corresponding legal apparatus to uphold them? Without the protection of a political community, an individual is therefore alienated from her rights. Agamben (1995) calls this figure cast out of the Bios (and therefore political life) and reduced to bare life, homo sacer, a figure that can be sacrificed with impunity. If an individual can only be endowed with the full rights of man when a legal apparatus is present, how might we explain non-person entities claiming rights? The landmark 2008 US Supreme Court decision in Citizens United v. Federal Election Commission (FEC) asserted that conservative non-profit Citizens United had, just as individuals, the right to free speech under the First Amendment and could therefore not have its expenditures on political communications be restricted by the government. In this way, the US Supreme Court extended the ‘right to claim rights’ to a non-person. Taking two important permutations of the components of “property” (claims on material goods become claims on immaterial goods) and of “rights” (an individual’s rights claim becomes a non-human’s rights claim) in the term intellectual property rights allows entities such as pharmaceutical companies to protect ‘property’ such as lifesaving vaccine formulas. In this way, intellectual property law can be said to “regulate life itself” (Kapczynski 2010, 24).
The notion of intellectual property rights carries with it an institutional legacy that has legitimated claims of exclusion on the grounds of ownership for several decades. Refined over eight rounds of negotiations, twenty-three countries signed onto The General Agreement on Tariffs and Trade (GATT) in 1948 during the post-WWII years. It was not until the United Nation’s (UN) World Intellectual Property Organization (WIPO) was established in 1967 that ‘intellectual property’ had a more central role in global governance. WIPO promised “…to promote the protection of intellectual property throughout the world through cooperation among States and, where appropriate, in collaboration with any other international organization” (Convention Establishing the WIPO 1967). While intellectual property rights became more formally acknowledged as ‘property’, WIPO did not contain in its articles any formal punitive measure for countries not in compliance with the protections. The World Trade Organization (WTO) replaced the GATT in 1995 as the central organizing institution of trade at the global scale. In the same year that the WTO was established, WTO member countries signed the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) to ensure “…minimum standards of protection and enforcement that each government has to give to the intellectual property held by nationals of fellow WTO members” (WTO 2021). The TRIPS Agreement contained within it a dispute settlement system, and the authority to sanction countries who did not comply (Birn, Pillay, and Holtz 2017, 312, 392).
While the patents protected by intellectual property laws have arguably been the most consequential to the distribution of global wellbeing (over, for example, copyrights or trademarks), medical patents by pharmaceutical industries have received a bulk of the attention from activists over the last decades. In 2001, after years of coordinated protest actions, AIDS activists around the world were successful in pressuring global intellectual property legal apparatuses in amending the original TRIPS Agreement with the Doha Declaration. When scientists identified the HIV/AIDS virus in the 80s, the epidemic was already spreading around the globe. In 1996 antiretroviral therapy (ART), an effective treatment for the management of the HIV/AIDS virus, emerged as an answer to stopping the epidemic spread of HIV/AIDS. The patent for ART treatment was protected under TRIPS for a period of twenty years at the time of its invention, sparking activist groups in South Africa, notably the South African Treatment Action Campaign (TAC), and in the United States, notably the AIDS Coalition to Unleash Power (ACT UP), to pressure national and supranational legal institutions that protected the intellectual property rights of ART treatments. In 1999, the Pharmaceutical Manufacturers’ Association (PMA) v. The President of the Republic of South Africa case was brought to the South African supreme court. The PMA argued that manufacturing generic drugs while still under patent was a violation of the South African government’s ratification of the 1994 TRIPS Agreement and was therefore a violation of their rights to intellectual property. Also employing rights language, TAC framed their argument in terms of “the rights to ‘life, dignity and access to health care services’ as enshrined in the South African Constitution and numerous international human rights agreements” (George 2011, 184). Ultimately, PMA’s withdrawal of the lawsuit helped to form “…a strong normative foundation upon which to build further protection for the right to health” (George 2011, 197).
In 2001, just weeks after an anthrax scare in the United States, 140 trade ministers gathered in Doha, Qatar and enshrined the following protections in the “Declaration on the TRIPS Agreement and Public Health”, also known as the Doha Declaration,
…the TRIPS Agreement does not and should not prevent members from taking measures to protect public health. Accordingly, while reiterating our commitment to the TRIPS Agreement, we affirm that the Agreement can and should be interpreted and implemented in a manner supportive of WTO members’ right to protect public health and, in particular, to promote access to medicines for all. (Doha WTO Ministerial 2001)
Motivated by the anthrax scare and its efforts to stockpile generic Cipro, an antibiotic that could be used to treat anthrax exposure in the case of a large-scale bioterrorist attack, the US signed the declaration (Sun 2004). Two legal mechanisms, compulsory licensing[1] and parallel imports[2], comprised the legal base upon which the TRIPS Agreement was modified. Klug (2005) argues that even these modifications were not capable of ensuring equitable access to life-saving medicines. Since compulsory licensing, the more easily accessible of the Doha Declaration’s legal mechanisms, required countries to have access to their own manufacturing, it inherently excluded countries without the capacity to produce their own pharmaceuticals. The 2003 pre-Cancún agreement laid out a pathway for countries without manufacturing capabilities to claim compulsory licensing rights to protect the public health of their populations, although it “…has since been criticized for placing so many preconditions on its implementation as to make it unworkable” (135).
Sociologist Deborah Gould (2004) considers the role of emotion in the ACT UP protests of the 1980s and 1990s, specifically focusing on the idea of the ‘public funeral’ as a social movement tactic. In it, AIDS activists would perform funeral services for their comrades lost to the AIDS virus in front of government buildings. Figure 1 calls attention to the similar political nature, i.e. that both diseases have excluded the deployment of life-saving medication using claims at intellectual property rights, of both the HIV/AIDS and COVID-19 viruses (ACT UP 2021).
Despite these criticisms, the Doha Declaration has nonetheless provided an important legal infrastructure to bypass intellectual property rights in the name of public health, leaving many in the midst of the COVID-19 vaccine roll-out pushing for a special TRIPS waiver to, as one particular activist campaign terms it, “free the vaccine” from exclusionary intellectual property protections (“Free The Vaccine” 2021). South Africa and India called for a TRIPS waiver on the intellectual property contained in the COVID-19 vaccine in October of 2020, and the United States followed on May 5, 2021. Just three days after the United States’ statement, biotechnology company and one inventor of the MRNA vaccine against COVID, Moderna Therapeutics, Inc., released a statement asserting that it would not enforce its intellectual property rights during or after the pandemic (Moderna 2020). In a response to the statement, James Love, director of non-profit Knowledge Ecology International (KEI), called for “every manufacturer of a vaccine, drug or diagnostic [to] follow suit and publish the patents relevant to the technology, waive or license rights in those patents, and provide constructive transfer of manufacturing know-how and access to cell lines and data when necessary” (Love 2020). Vocal opponents of sharing the vaccine’s “recipe” with other manufacturers include Bill Gates, a major influencer of global public health policy. During an interview on Britain’s Sky News, Gates cited safety standards in manufacturing, and explicitly not intellectual property constraints, to explain why a TRIPS waiver will ultimately fail to bring the world closer to equitable vaccine access (Savage 2021; Kapczynski and Ravinthiran 2021). Sparke (2017) categorizes global patent protections as one way that economic neoliberalization keeps lifesaving medical technologies and drugs out of reach to the world’s poor. It is through the legal apparatuses of institutions like the WTO, and through our legal understanding of what it is to claim a “right” that immaterial objects, such as the recipe to produce lifesaving COVID-19 vaccines, are taken out of the commons and claimed as property.
[1] “Compulsory licensing enables a competent government authority to license the use of a patented invention to a third party or government agency without the consent of the patent-holder” (“Intellectual Property: Protection and Enforcement” 2021).
[2] “Parallel importation is importation without the consent of the patent-holder of a patented product marketed in another country either by the patent holder or with the patent-holder’s consent” (“Intellectual Property: Protection and Enforcement” 2021).
(See Accumulation, Free Trade)
Bibliography
ACT UP. “ACT UP NY Face Backlash Over Equating COVID-19 Pandemic with AIDS Crisis.” Attitude. 2021. https://attitude.co.uk/article/act-up-ny-faces-backlash-over-face-mask-equating-covid-19-pandemic-with-aids-crisis/23089/.
Agamben, Giorgio. Homo Sacer. Stanford, California: Stanford University Press, 1995.
Arendt, Hannah. “The Rights of Man: What Are They?” Die Wandlung, 1949a, 4th edition.
Birn, Anne-Emanuelle, Yogan Pillay, and Timothy H. Holtz. “Health Equity and the Societal Determinants of Health.” In Textbook of Global Health. Oxford University Press, 2017. https://doi.org/10.1093/acprof:oso/9780199392285.001.0001.
Convention Establishing the World Intellectual Property Organization. 1967. https://wipolex.wipo.int/en/text/283854.
Doha WTO Ministerial. “Declaration on the TRIPS Agreement and Public Health.” TRIPS WT/MIN(01)/DEC/2. 2001. https://www.wto.org/english/thewto_e/minist_e/min01_e/mindecl_trips_e.htm.
“Free The Vaccine.” Campaign website. Free The Vaccine for COVID-19. 2021. https://freethevaccine.org/about/.
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