By Govind Persad
Imagine a Harvard MBA graduate trying to decide between jobs at Pfizer and at Snapchat. Both are immensely wealthy firms. Many of Pfizer’s products benefit global health. Snapchat’s are at best neutral and may even harm health. Yet many see Pfizer as distinctively culpable for global health deficits. These arguments often depend on the fact that Pfizer holds intellectual property (IP) in pharmaceuticals, whereas Snapchat holds cash and non-pharmaceutical IP.
In a recent paper in the Yale Journal of Health Policy, Law, and Ethics, Examining Pharmaceutical Exceptionalism: Intellectual Property, Practical Expediency, and Global Health, I argue for two conclusions:
- Holders of pharmaceutical IP (like Pfizer) aren’t uniquely culpable for global health deficits. Other actors (like Snapchat) who fail to use available resources–including ordinary property and non-pharmaceutical IP–to address health deficits, or who affirmatively cause health deficits, also bear responsibility.
- But laws requiring pharmaceutical IP holders, but not others, to address global health deficits are nevertheless justifiable. Legal responsibility needn’t perfectly mirror moral responsibility.
Arguments that pharmaceutical IP holders are culpable for global health deficits have prompted policy proposals:
- A UN Framework Convention on Global Health that would tax pharmaceutical firms and use revenues to compensate victims of right-to-health violations and fund research on neglected diseases;
- The elimination of IP rights in all health technologies;
- Requirements that pharmaceutical IP holders spend on R&D;
- Requirements that firms holding pharmaceutical IP save a number of DALYs proportional to their global revenues;
- Proposals to evaluate pharmaceutical firms or universities by their contribution to global health.
These proposals all focus on pharmaceutical IP holders. Why? I examine and reach skeptical conclusions about several reasons pharma IP holders might have unique duties.
- They (and not others) own what patients need
- Much pharma IP involves nonessential medicines. And other firms and individuals control the physical medicines themselves or have wealth that could be used to buy medicines.
- They (and not others) interact with needy patients
- Other firms also interact with needy patients. And basing responsibility on interaction creates counterproductive incentives not to interact.
- They (and not others) are able to help at low cost to themselves
- Pharma IP holders aren’t unique in being able to help at low cost. Pharma IP is non-rival (one person using it doesn’t prevent others from doing so). But so is non-pharma IP. And eliminating even non-rival rights involves costs. Similarly, not all IP holders are wealthy, and many non-IP-holders are wealthy.
- They (and not others) affirmatively cause global health deficits
- Others also cause these deficits by asserting non-IP property rights. Many big pharma firms have acted anticompetitively, but this conduct often does not depend on their IP rights
If I am right that pharmaceutical IP holders aren’t uniquely culpable for global health deficits, what follows? One possibility is the use of “pull” or “push” programs like prizes, grants, and IP buy-outs, rather than focusing on IP rights. Another is to continue imposing duties on pharma IP holders but empower them to collect contribution from other firms who are also in a position to assist.
Ultimately, though, we know that a “legislature may select one phase of one field and apply a remedy there, neglecting the others.” Requiring pharmaceutical IP holders to address global health deficits can therefore be legally acceptable, and a potentially effective strategy for improving global health, even if IP holders lack special moral responsibility.