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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.

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How Many Children Must We Save?

photograph of boys filling water jugs from a ditch in Kenya

The economic slowdown from the coronavirus pandemic is likely to reverse a global trend of poverty reduction. This crisis should renew interest in our moral obligations to the poor. And there is no better place to begin thinking about those obligations than the work of Peter Singer. He argues we are morally required to give a lot more expendable income to the poor:

“On your way to work, you pass a small pond. … [You] are surprised to see a child splashing about in the pond […] it is a very young child, just a toddler, who is flailing about, unable to stay upright or walk out of the pond. […] The child is unable to keep his head above the water for more than a few seconds at a time. If you don’t wade in and pull him out, he seems likely to drown. Wading in is easy and safe, but you will ruin the new shoes you bought only a few days ago, and get your suit wet and muddy.”

Clearly, we should save the child. And we could save many people from sickness and death from lack of food, medicine, and shelter by donating a lot more of our expendable income to the poor: you could live a happy life, visit Starbucks less often, and donate the money instead to the poor. Singer argues not donating is morally no different than letting the child drown. Much of our spending on goodies doesn’t contribute to our well-being: we would likely be as happy, going to fewer movies, and buying fewer fancy coffees (and perhaps none). The goods and services we buy with our expendable income don’t compare morally to the lives we could save.

Up to this point, Singer makes a good case. But it doesn’t end there: Singer argues that we are morally required to give substantially more than we (likely) do:

“Suppose you have just sent $200 to an agency that can, for that amount, save the life of a child in a developing country who would otherwise have died. […] But don’t celebrate your good deed by opening a bottle of champagne, or even going to a movie. […] You must keep cutting back on unnecessary spending, and donating what you save, until you have reduced yourself to the point where if you give any more, you will be sacrificing something nearly as important as a child’s life.”

Here Singer is stressing the extent of our moral obligations to the poor: when we decide to go to a movie, or buy a fancy coffee, we could have instead donated that money to save the life of a poor person dying from lack of food, medicine, and shelter. When comparing something trivial, like a caramel macchiato, to a life we could save, we should part with the money. But this line of thinking may lead to overly demanding moral requirements.

We should take a step back to think about moral overdemandingness. Moral requirements can be hard — admitting we lied to a friend may be hard, but morally required — but they can’t be too demanding. Suppose Nathan has a few beers during Monday night football. He does nothing obviously wrong. Any moral theory that says otherwise is too demanding; we should be leery of any moral theory or view that demands too much. Unfortunately, it looks like Singer’s argument may do that. We can explore this with a sorites paradox.

We should first introduce sorites paradoxes. And like with most philosophical ideas, they sound more complicated than they are. An example of a sorites paradox would help. Consider a heap of sand. Taking one grain of sand won’t destroy a heap. And that’s true of every individual grain of sand. If we apply this rule over and over, we will eventually destroy the heap. But if taking a single grain of sand doesn’t destroy the heap, we could take a single grain of sand, over and over, and on this rule, and we would still have a heap — but we know taking one grain at a time, over and over, will eventually destroy the heap. We can formulate this paradox as follows:

(1) A pile of one trillion grains of sand is a heap.

(2) A single grain of sand isn’t a heap.

(3) Taking one single grain of sand won’t create/destroy a heap.

This is a paradox: a set of individual statements that seem right, but taken together cannot be true. If we took a single grain of sand from a heap over and over, according to (3) we wouldn’t destroy the heap. But we intuitively know that isn’t right: if we took enough individual grains of sand, over and over, until a single grain remained, it wouldn’t be a heap.

We can frame Singer’s argument as a sorites paradox:

(4) Saving an innocent person, with a modest donation, isn’t morally too demanding.

(5) There are millions of people we could save with a modest donation.

(6) A moral requirement to save everyone we can with a modest donation is too demanding.

Consider a defense of (4): a cup of coffee or a new pair of shoes doesn’t morally compare to the life of an innocent person; if we could save them, by not buying goodies, and instead donating the money, then we’re morally required to do that. This isn’t morally too demanding: it is as reasonable as saving a child drowning in a shallow pond. However, there are millions of poor folks who need saving, and could be saved by a few modest donations. And individually, these acts of sacrifice wouldn’t rise to the level of overdemandingness; in each case, we could argue the life of a child is morally more important than watching a football game buzzed.

However, if we apply this line of argument over and over, there will eventually come a point where we won’t be able to watch a football game with a few beers because it would be wrong. We could work overtime instead and donate that money to charity. This isn’t to say Singer thinks we should never rest and recover, or earn money to pay our bills. We can still do those things, but only if they have comparable moral worth to the life we might otherwise save. And that looks like it demands too much of us; if a moral claim is overly demanding, we should be suspicious of that claim. This overdemandingness calls attention to an implicit assumption: that moral reasons trump other kinds of reasons — like, say, the value of enjoying a football game with a few beers — to act. And while moral reasons should be weighty in our rational deliberation, it isn’t obvious they override other kinds of reasons, such that those reasons don’t count.

How many poor folks are we morally required to save before it becomes too demanding? Most of us could, and likely should, do more to help the poor than we do, up to the point where it’s too demanding. But where exactly that point is located remains fuzzy.

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On the Just Treatment of Appalachian Coal Towns

A small town main street with a green mountain in the background and an American flag

Detroit had automobiles, Pittsburgh had steel, and Boston had textiles. Amongst these former capitals of industrialization in the United States is one that is seldom mentioned: the coal kingdom of Hazard, Kentucky. Hazard started booming as a coal town in 1912 when a railway along the North Fork of the Kentucky River was built with a station there. Soon thereafter, nearby coal mines started opening frequently, making for an abundance of jobs and a rapidly growing population. Between 1920 and 1930, the population of Hazard grew from 4,348 to over 7,000. The small city still hosts a Black Gold Festival every September to celebrate its industrial roots.

However, Hazard’s once rich history has now turned into severe poverty, unemployment, and addiction. The population is currently 5,600—shrinking over 1,800 since its peak in 1940 despite heavy national population growth. Additionally, Hazard’s median household income of $20,690 is almost $40,000 under the U.S. median, with about 31% of its small population living below the poverty line. Perhaps the darkest aspect of Hazard’s downturn is the opioid addiction crisis. Perry County, Kentucky (where Hazard is located) had the most opioid-related hospitalizations in the nation in 2017, with 6% of the county’s population having been hospitalized due to opioid abuse. Three counties surrounding Perry were also in the top ten in the nation.

Hazard, however, is not isolated in the challenges it faces. Towns all over Appalachia have experienced severe downturn characterized by these same issues. To illustrate, six of the 15 states with the highest opioid death rates are Appalachian states (West Virginia is first with 43.4 out of every 100,000 people dying of opioid overdose, followed by Ohio at third, Maryland at fourth, Kentucky at 10th, Pennsylvania at 12th, and Tennessee at 14th). Between the years 1999 and 2016, the number of opioid-related deaths in Pennsylvania jumped 736 percent, while those in Kentucky, Ohio, and West Virginia jumped over 1,000 percent. These rates are compared to a national increase of 528 percent. With the opioid epidemic, Appalachian states also deal with unusually high poverty and crumbling infrastructure that has led to the contamination of drinking water.

Why is it that these challenges are so inflated in Appalachia? Why is a region of the U.S. that once prospered and was overflowing with opportunities for lucrative employment is now rapidly decaying? The most obvious reason is the decline in demand for coal. U.S. coal consumption peaked as recently as 2007 but has dropped 44 percent since then, reaching its lowest level in almost 40 years. This number is expected to drop another eight percent this year. Additionally, of the 1,470 coal-fired generators in the U.S. in 2007, 540 have been retired as of September 2018. The decrease in demand has inevitably resulted in a decrease in coal production, and therefore a decrease in coal jobs. Coal mining jobs in the U.S. have dropped a whopping 71 percent since 1985. This effect is more pronounced in Appalachia. Coal production in Appalachia fell 45 percent from 2005 to 2015, resulting in a loss of about 33,500 mining jobs since 2011. In Hazard in particular, the local coal industry now produces approximately 4.1 million tons of coal annually, dropping about 13 million tons since 2008, and losing about 13,000 coal jobs in eastern Kentucky since 2011. This year marks the lowest number of coal jobs Kentucky has had since 1898.

People across the nation have noticed Appalachia’s suffering, and have searched for causes behind it. Donald Trump in particular ran on a platform that included the revival of the Appalachian coal industry. He puts most of the blame for its recent lack of success on environmental regulations imposed by Democratic politicians. In one tweet referring to the Obama administration’s regulations on carbon emissions, Trump wrote, “Obama’s coal regulations will destroy the coal industry, put Americans out of work, raise electricity prices, and lead to blackouts.” Trump continues to tweet into his presidency about how he has “ended the war on coal.” The coal town of Hazard seems to agree, as 77.2 percent of voters in Perry County, Kentucky voted for Trump in 2016. However, Trump’s assumption that environmental regulations are destroying the coal industry and, by association, the economy of Appalachia, is overly simplistic. In fact, environmental regulations only account for approximately 3.5 percent of the total decline in U.S. coal production. The reality is that the coal industry is dying primarily of natural causes.

There are two main reasons behind the Appalachian coal industry’s decline: decreasing productivity, and competition with other energy sources. The former is caused by the dwindling supply of easily-accessible coal deposits in the Appalachian Mountains. After almost a century and a half of mining, miners now have to dig deeper into the mountains for usable coal. To offset this increased difficulty in mining, coal corporations have turned towards mechanization, which puts even more miners out of work. Even with a mechanized workforce, however, Appalachian coal cannot keep up with coal production in western states such as Wyoming, Montana, and Texas, where deposits are closer to the surface and therefore require less time and money to mine.

Along with challenges the coal industry faces to keep up production, it must also deal with higher competition with other sources of energy, namely renewable energy (wind power, solar power, etc.) and natural gas. Renewable energy is beginning to compete with coal because of rising concern amongst Americans about the environment. Burning coal is one of most harmful sources of electricity in terms of carbon emissions, and while it is cheap, Americans are beginning to prioritize environmental harms caused by energy sources over the economic costs they incur. This gives renewable energy sources (which are typically more expensive) an advantage over coal. Most competitive with the coal industry, however, is natural gas. In 2016, natural gas surpassed coal as the U.S.’s leading source of electricity. This is largely due to falling natural gas prices after the fracking boom of the late 2000’s. Natural gas is also cheaper to produce than coal, and burning natural gas puts out significantly less carbon emissions than coal.

Because the Appalachian coal industry is already becoming obsolete at the hands of struggling productivity and a more competitive energy market, it would be foolish and reckless for politicians to attempt breathing life back into it. Rather, these efforts should be put into diversifying Appalachia’s economy. Some coal towns are already beginning to do this. The residents of Hinton, West Virginia, for example, have started the Appalachian Beekeeping Collective, a nonprofit aimed at training out-of-work coal miners in beekeeping. This nonprofit has grown to operate in 17 counties throughout the state of West Virginia in just two years since its creation, and helps ex-miners earn money in a more sustainable field of work. Additionally, the state of Pennsylvania, which has traditionally been a coal state and is still one of the biggest energy producers in the U.S., is moving its economy to subsist on nuclear power and natural gas while coal is on the decline. Even Hazard is turning the site of one of its former surface mines into the USA Drone Port—a research and testing facility for drone companies to use. To supplement this, the Hazard Community and Technical College has introduced courses in unmanned technology, drone flight, photography, and videography: all skills that will translate well into USA Drone Port’s workforce. The Technical College has already graduated 200 students in these fields, many of whom used to be coal miners.

Unfortunately, the coal industry does not appear to be a significant part of the future U.S. economy. However, adapting to the future is possible, and many places around Appalachia are showing it. Appalachia is a region full of innovation, grit, and most importantly, people who are ready to work for the betterment of their communities, with or without coal.

 

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Who Can Help? Who Should? Being a Billionaire in a Suffering Society

Photograph of Jeff Bezos speaking at a podium and gesturing with arm

Jeff Bezos, founder of Amazon and richest man in the world, announced on the 13th of September that he would dedicate $2 billion to finance a network of preschools and tackle homelessness in America.

This move is controversial for a number of reasons, perhaps primarily given the relative amount of funds dedicated to Bezos’ spectacular fortune of 164 billion dollars. The two billion dollars amounts to 1.2 percent of Bezos’ fortune. Bezos has long been criticized for his lack of commitment to philanthropic work, and is the only American in Bloomberg’s top 5 world’s richest people who hasn’t joined the Giving Pledge, which would commit him to donating at least 50% of his fortune to charity.

Andrew Carnegie, who was the richest man in the world in 1899, wrote about the moral obligation of the wealthy in an essay entitled The Gospel of Wealth: “The man of wealth thus becoming the sole agent and trustee for his poorer brethren.” Carnegie spend approximately 90% of his wealth on public programs and scientific discovery. It’s noteworthy that during that era, the tycoons who earned their massive wealth through monopolies and breaking labor unions operated in a society pre-New Deal, so that government assistance programs of the twentieth century were not yet established.The philanthropic work of the barons like Carnegie and Rockefeller that paid teachers and established libraries were a sharp contrast to the working conditions of their employees.

The conditions of Bezos’ own employees have been raked over in the news for years, creating a contrast between his wealth and the conditions of employees that allow his fortune to amass. Amazon floor workers have been reported to resorting to sleeping in tents in the warehouses in which they work and urinating in bottles in order to meet work quotas. Amazon is one of the country’s top employers whose employees receive food stamps. When those under Bezos’ direct influence are living in such conditions, his recent philanthropic announcement seems hypocritical or a media grab.

Beside concerns over publicity, the real impact of the charitable contribution of the mega-rich raises real moral questions. In a society that allows such drastic inequality that there are individuals that have amassed enough wealth to create programs to dramatically alter the lives of significant swaths of worse-off, is donating from their fortune a sufficient act of benevolence, discharging their moral burden for benefitting for the inequality-sustaining society? A recent critique by BBC news references Anand Giridharadas, “whose book Winners Take All tackles the so-called ‘charade’ of modern philanthropy, characterises Carnegie’s approach as ‘extreme taking followed by extreme giving.’ The super rich,” he argues, “stop short of ‘transforming the system atop which they stand.’”

To further complicate the moral evaluation of Bezos’ charitable actions, Senator Bernie Sanders recently claimed that Amazon paid no federal tax in 2017. This draws out the questions of responsibilities of corporations and businesses to contribute to society. While many of Bezos’ workers rely on government support programs, the corporation they work for does not support those programs.

In such circumstances, what obligations does the founder of the corporation, who can make nine billion dollars in two days, have to society, the government, and his workers? Bezos’ philanthropic move can be read as prioritizing private subsistence assistance, sidestepping government support that taxation would help, or directly supporting his employees by providing employment that would allow members of society to live without working multiple jobs and relying on government assistance.

With Bezos, the contrast between working conditions and philanthropic goals remains, but today it is less clear what the obligations of the wealthy are towards society en masse. The issue of what corporations owe to society is a complicated one in business ethics, for businesses are purportedly aimed at profit, not beneficence, but what obligations remain for the individuals that gain from the profits of the businesses like Bezos, Buffet, Musk, etc.?  When individuals have enough money to effectively run government programs of their own, while not paying taxes, the influence on society and the public good is significant.

When the public rely on the charitable feelings of the super-wealthy, and these wealthy individuals and their corporations can so easily side-step contributing to government programs via taxation, then problems of society become even more difficult to tackle. Public education, a long-term legislative log-jam, has attracted a number of uber wealthy, Bezos included. The water crisis in Flint, Michigan has been most attended to by private charities rather than the government. Elon Musk is currently addressing the problem along with celebrities such as Will Smith, the Game, and Eminem.

The obligations of individuals with wealth are complicated. As Giridharadas points out, the origin of one’s wealth is morally significant, and if there are massive inequalities between the wealthy and poor, or if the wealthy continue to rely on an economically exploitative system, it suggests there are real moral obligations on the wealthy. It may be wrong to remain that wealthy, to not take action using that wealth to adjust the system to produce less inequality, and to ensure that the production of wealth does not rely on unjust working conditions. The ways in which private philanthropy can undermine government efforts further complicates these questions — when should individuals step in where government fails and when should individuals work to adjust the way that government is being sensitive to the needs of society so that it won’t fail in the future?

Individuals with great wealth must grapple with these moral issues. The Giving Pledge is an overt statement that it does not make sense (potentially morally) for individuals to have as much money as those that top the Forbes list currently do. The amount of money that it would be permissible to keep, and what to do with the surplus, is difficult to determine, perhaps, but these observations put pressure on the complicity of the wealthy in an economic and political system that could be more morally permissible.

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Ethics and Experimentation in Foreign Aid

A photo of people unpacking food supplies from USAID.

In Kenya, a grand experiment in a radical approach to foreign aid and poverty alleviation is about to get underway. Instead of the predominant approach to foreign aid of providing in-kind donations to poor people (such as housing, food, and health care), the charity Give Directly plans to give money directly to poor people with no strings attached. The concept of a universal basic income (UBI) behind the charity’s experiment “is a specific type of cash transfer” that is “unconditional,” “universal,” “enough to cover basic needs,” and “guaranteed for a recipient’s lifetime.” Critics of UBI claim that recipients will waste the money they receive on things like alcohol, or will stop working because of the new income. Give Directly wants to test these claims to build evidence for UBI as a more efficient and effective approach to poverty alleviation.

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