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Intellectual Property and the Right of Necessity

photograph of favella next to skyscrapers

Ever since the United States came out in support of waiving intellectual property protections for the COVID vaccines, we have seen renewed interest in the ethics of intellectual property over life-saving medication.

Currently, member nations of the World Trade Organization are bound by the TRIPS agreement to respect and enforce international medical patents. If a U.S. company develops a new drug and gets a patent for that drug approved by the United States, then other nations are bound by international law to also respect intellectual property rights to that invention.

There are numerous flexibilities built into the TRIPS agreement to try and ensure international access to medicine. For example, countries can issue compulsory licenses for intellectual property. These licenses allow a country to legally compel a company to make its patent available to domestic producers for a fee set by the government. For example, Canada could, under the TRIPS agreement, issue a compulsory license for the Johnson & Johnson vaccine, and force Johnson & Johnson to provide their patent to Canadian vaccine producers.

However, many have argued these flexibilities are insufficient to deal with the current pandemic and so have called for an international waiver to TRIPS protections for COVID-related medications. Such a waiver would allow anyone to produce COVID vaccines or medications without violating international property law.

There are legitimate worries about such a waiver. Critics argue that current production bottlenecks are not the result of intellectual property protection, that there are better and safer ways to increase vaccine production, and that such a waiver creates a precedent that could discourage future research and development.

This back and forth has been covered in a previous Prindle post, and so I won’t tackle the ethics of a COVID waiver here. Rather, I want to take a step back and look more broadly at intellectual property rights over life-saving medications. In particular, I want to consider such property rights in light of the ethical ‘right of necessity.’

Introducing The Right of Necessity

Most agree that it is permissible for a starving man to ‘steal’ a loaf of bread in order to save his own life. However, there are two very different explanations that one can give of that permissibility.

On the one hand, you might think that while taking the bread is indeed an act of theft, that act of theft can be justified since it is necessary for the man to save his own life. On this view, the starving man violates the property rights of the baker, but such right violations are justified in order to save a life.

On the other hand, you might think that the man is justified in taking the bread because, to use Aquinas’s language, it is not even “properly speaking theft.” According to this view, it is not that you are justified in violating someone’s property rights. Rather, the other person does not have a property right over the bread in the first place. If the baker has a surplus and there are others in true need, then the baker does not have a property right against them. Philosophers who take this second view, including Thomas Aquinas, Hugo Grotius, Samuel Puffendorf, and Alejandra Mancilla, believe in a right of necessity, a right to that which is necessary to survive.

There are many different arguments that one can give for a right of necessity. One argument, inspired by Puffendorf, is that you cannot justify to everyone a system of property that allows some to starve. What justification could you give to the starving man for why they should consent to, or accept, a system of property in which they die? Being dead, they will not receive any benefits of the system.

Another argument, this one inspired by Aquinas, is that we create systems of private property so that everyone can more efficiently acquire those goods necessary for their well-being. Nature originally belongs equally to everyone, and we divide it up into private property because it enables everyone to secure their well-being more easily. However, since private property is created to enable everyone to more easily secure that natural right, private property cannot contradict the natural right of people to that which they need to survive.

The Right of Necessity and Intellectual Property

If there is a right of necessity, what implication would that have for intellectual property rights over life-saving medication?

Life-saving medication, almost by definition, is often necessary for survival. Thus, if the right to necessity justifies stealing bread from those who have extra, so too it would seem to justify stealing a vial of unaffordable medication. Similarly, if I can steal an unaffordable vial of life-saving medication to save a life, then it would be strange to think I cannot violate an international patent to create that life-saving vial.

It seems, then, that if we accept the old doctrine that there exists a right of necessity, it would have profound implications for the justice of intellectual property law. Nations, according to such reasoning, possess a natural right to break patents if it is necessary to produce life-saving medication for those who could otherwise not afford them.

(The affordability qualification is an important one. Just as it would be theft for me, who can afford to buy food, to steal a loaf of bread. So too it would be unjust to violate international patents for patients who can otherwise afford to buy the medication.)

But even with the affordability qualification in place, there is currently a huge problem of access to life-saving medications by the global poor. As such, the right of necessity suggests a standing right to break many international medical patents.

A Looming Market Problem

There is a problem, however, with using the right of necessity to break patents on life-saving medications. If we can violate patent rights for life-saving medications, but not for relatively unimportant patents, it creates a systematic market incentive for firms to invest in relatively trivial research.

Let’s first consider this worry in the context of ordinary property. A starving man can take bread if he cannot afford to pay for it. But I cannot take a Rolex just because I cannot afford to pay for it. While the starving man needs bread, I do not need a watch, and so the right of necessity only applies in the starving man’s case.

But this raises a worry. If we, as a society, recognized a right to steal necessities, then that would seem to incentivize people to only produce luxuries. If you bake bread, then your wares can sometimes be taken without payment. But if you make luxury watches, then your property rights are totally safe. So why become a baker?

We can extend the worry to the pharmaceutical case. If a drug company invents a new life-saving medication, then, the company’s intellectual property rights will be systematically limited. There will be a standing right for others to violate their intellectual property protections if it is necessary to save lives. In contrast, if a drug company invents a non-life-saving medication, say a new form of Viagra, then there are no similar limitations on intellectual property protections. Since no one needs Viagra, companies can be secure in their property rights.

But the whole point of IP protections is to encourage innovation. We give companies patents in order to encourage them to invest in research and development of new, useful goods. If the patent protections on life-saving medications are systematically weaker, then it creates a perverse incentive for companies to divert R&D funding towards relatively unimportant medical research.

A Possible Solution

If we accept the right of necessity, it suggests a broad moral power to redistribute goods to those in need. However, we’ve also seen that the straightforward application of that moral power could have harmful long-term consequences.

One possibility is just that there is a conflict between justice and market efficiency. And indeed, I think defenders of the right of necessity must admit that it would justify inefficient market behavior. A starving man can steal bread, even if that creates a market disincentive to go into baking, which in turn drives up the price of bread even more.

However, I think there is another way we might try and reconcile these two.

The right of necessity is often illustrated with the permissibility of a starving man stealing bread. But, in principle, there is no reason why what’s taken must be directly related to the need. Suppose that the man was unable to steal a loaf of bread but could steal an expensive watch. Just as the man has a right to steal bread, so too he seems to have a right to steal the watch if it is required to be able to buy a loaf of bread.

This suggests a possible solution to the problem we have identified. While the right of necessity would justify a country in breaking international patents over life-saving medications. It would also, for instance, justify them in breaking other patents in order to raise the funds to purchase life-saving medications.

If this is right, then as long as there are any who remain in desperate and undeserved need, it provides a wide-ranging potential justification for breaking apparent property rights. Put another way, certain types of injustice, such as life-threatening poverty, might be so unjust as to render most of the property claims of our entire international system of justice merely provisional.

A Question of Motivation: Moral Reasons and Market Change

image of beached whale with human onlookers

For thousands of years, the practice of hunting whales was exceptionally common. The animals were killed for meat, and, later, for blubber that could be converted into oil—an increasingly valued commodity during the industrial revolution. While whaling provided tremendous benefits to human beings, the practice was, of course, devastating to whale populations and to individual whales. Arguments against the practice were ready at hand. A number of species, such as grays and humpbacks, were being hunted into near extinction. The reduction of the whale population led to changes in aquatic ecosystems. What’s more, the practice was cruel—whaling equipment was crude and violent. Whales under attack often died slowly and painfully and plenty of harpooned whales were seriously injured rather than killed, causing them pain and diminishing the quality of their lives. To complicate matters, whales have enormous brains and live complex social lives. There is much that we don’t know about whale cognition, but there is at least a compelling case to be made that they are very intelligent.

Most countries have banned the practice of whaling, though some native tribes are allowed to continue the practice on a subsistence basis. One might think that we came to see the error of our ways. Surely, the true, unwavering light of reason guided us toward mercy toward our Cetacean friends? After all, the case in question raises fundamental philosophical questions. In virtue of what features is a being deserving of moral consideration? How should we balance human comfort and well-being against the suffering of non-human animals harmed in its attainment? How much collateral damage is too much collateral damage?

Alas, as Paul Shapiro points out in his book, Clean Meat, it was market forces rather than philosophical arguments that led to the slow decline of whaling practices. When alternative sources of energy, such as kerosene, became cheaper and more readily available than whale oil, consumers quickly changed their consumption habits. So, it was only after a viable alternative became available that people were finally willing to listen to the ethical arguments against the practice.

The way in which the practice of whaling fell into disrepute is a key case study for reflection on an interesting and important set of questions, some empirical and some philosophical. Is it common for people to be motivated by the sheer strength of moral reasons? Are moral considerations hopelessly secondary to concerns related to convenience? If we assume that desirable moral outcomes exist (the reduction of suffering is a plausible candidate), are we justified in changing moral attitudes by manipulating markets? How much time and effort should we spend persuading people to change their consumption habits for moral reasons?

These questions are increasingly salient. In years past, our species had the power to usher in the end of days for countless species. Indeed, technological advances have made it possible for our species to usher in the end of days for life on earth, full stop. We have created products and procedures that pollute our oceans and fundamentally change our atmosphere. What should we do in response?

One might think that the severity of the problem should give rise to a paradigm shift—a move, once and for all, away from the anthropocentric worldview that put us where we are. This would involve seeing our actions and ourselves as part of a larger biosphere. Once we adopted this view, we would recognize that resources are global, and we are just a small, albeit fulminant, part of that larger system. The fact that our actions have consequences for others may also lead to a shift in the way we think about our moral spheres of influence. Rather than thinking of moral obligation as a local matter, we may start to think about the consequences our actions have for populations in locations more impacted by climate change. We may also think about the impact our behavior has on the non-human life occupying the global ecosystem.

Or…not. It may be that such a shift fails to take root. Admittedly, this is philosophically dissatisfying. There seems to be something noble and admirable about living a Socratic life—about knowing oneself and living an examined life. This entails a willingness to reflect on one’s own biases, a disposition to reflect on what is good, all things considered, and to pursue that good.

For change to happen in the way I’ve just described requires change to happen from within. In this case, our behavior would change by way of what philosopher John Stuart Mill would call an “internal sanction”—we would be motivated to do what is good out of sheer recognition that the thing in question is good. In the absence of internal sanctions, however, external sanctions may be not just appropriate, but crucial. A change in market forces eventually led to conditions under which people could be convinced that whaling was a moral atrocity that needed to be outlawed. Perhaps similar market changes can make the difference with regard to crucial moral issues today. Perhaps if there are viable alternatives to the consumption of flesh, people will open their eyes to the horrors of factory farms. If there are compostable or reusable alternatives to single use plastics, perhaps that will open the door to a change in attitude about the way our consumption habits affect the planet.

The problem with this approach is that important moral change becomes dependent on non-moral features of the market. The alternative options must be affordable, marketable, and, ultimately, popular. What’s more, though the market might be useful for transmitting values, there is nothing inherently moral about it—it can make popular corrosive, ugly change just as easily as it can promote moral progress. In the end, if the market change doesn’t stick, neither does the moral change.