Utilitarian arguments

Utilitarian arguments set as a goal producing the greatest good to society and hold that IP protections are instrumental to achieving that end. The primary basis for this claim is the belief that the profits IP generates are essential to spur innovation and discovery which in turn, advance society’s interests. Absent such profits, discoveries would languish, and progress would slow.

In reply, even if the final translation of science into marketable products would not occur absent financial incentives, how much money does it take? As noted, in 2021, Pfizer/BioNTech will make 15–30 billion US dollars from COVID-19 vaccine sales, Moderna 18–20 billion US dollars, and Johnson & Johnson 10 billion US dollars. Could these companies earn less and the incentive to innovate remain intact? To determine this, we make an evidence-based distinction between profits necessary to drive innovation and profits exceeding this. To gauge that, consider a study comparing the profits of 35 large pharmaceutical companies with 357 companies in the S&P 500 index between 2000 to 2018.14 It found large pharmaceutical companies had significantly higher profits than other large companies. This suggests curbing pharmaceutical company profits would not necessarily cause innovation to grind to a halt. If profit aligned with comparable large S&P 500 companies, it seems reasonable to think it would sustain innovation.

Since consequentialist justifications treat the value of IP as purely instrumental, they are also vulnerable to counterarguments showing that a sought-after goal is not the sole or most important end. During the COVID-19 pandemic, we submit that the vaccinating the world is an overriding goal. With existing IP protections intact, the world has fallen well short of this goal. Current forecasts show that at the current pace, there will not be enough vaccines to cover the world’s population until 2023 or 2024.15 IP protections further frustrate the goal of universal access to vaccines by limiting who can manufacturer them. The WHO reports that 80% of global sales for COVID-19 vaccines come from five large multinational corporations.16 Increasing the number of manufacturers globally would not only increase supply, but reduce prices, making vaccines more affordable to LMICs. It would stabilise supply, minimising disruptions of the kind that occurred when India halted vaccine exports amidst a surge of COVID-19 cases.

It might be objected that waiving IP protections will not increase supply, because it takes years to establish manufacturing capacity. However, since the pandemic began, we have learnt it takes less time. Repurposing facilities and vetting them for safety and quality can often happen in 6 or 7 months, about half the time previously thought.17 Since COVID-19 will not be the last pandemic humanity faces, expanding manufacturing capacity is also necessary preparation for future pandemics. Nkengasong, Director of the African Centres for Disease Control and Prevention, put the point bluntly, ‘Can a continent of 1.2 billion people—projected to be 2.4 billion in 30 years, where one in four people in the world will be African—continue to import 99% of its vaccine?’18

Deontological arguments

Deontological arguments for retaining IP protections maintain that patent holders are the rightful owners of their inventions and are thus entitled to existing protections. With respect to COVID-19 vaccines, the claim is that pharmaceutical companies own these vaccines, which are the products of their labour; no one can rightfully take what is theirs.

In reply, the public has invested heavily, and these products are theirs’ too. Even when the translational part of product development is carried out by for-profit companies, this would be impossible without enormous upstream public investment. A 2021 review of published research on the technologies used in candidate COVID-19 vaccines, which spanned a range of diverse methodologies, found that these technologies were funded primarily by the public sector, principally governments.19

Beyond government contributions to developing COVID-19 vaccines, there are immeasurable, yet crucial, contributions from others whose shoulders vaccine developers stand on. As Hettinger notes, deontological arguments often give short shrift to the fact that discoveries do not occur in a vacuum but are ‘fundamentally social products.’20 As one grateful physician, who received the Pfizer COVID-19 vaccine, put it, ‘there is a whole chain of human toil that makes this possible’:

My gratitude starts with scientists who years before this pandemic, perfected the ability to extract DNA from viruses, sequence it and transcribe it to RNA… the scientists who identified the segment of that DNA that codes for the spike proteins that the virus uses to invade our cells; those who made the mRNA that corresponds to that DNA sequence, and those who figured out how to create a lipid womb to protect that precious mRNA payload during its perilous journey from factory floor to the depths of our deltoid musculature.21

The physician also thanked people who volunteered for and conducted Pfizer’s trials, approved the vaccine, produced it, made the equipment producers relied on, and everyone else—‘the pilots of planes and drivers of trucks who transported the vaccine … the workers who made those planes and trucks…and the people who fed them and clothed them and housed them so that they could do this life saving work.’

In sum, the deontological claim that pharmaceutical companies wholly own COVID-19 vaccines do not withstand scrutiny. What they own is limited to the additional value their efforts impart.

Additional arguments

We turn next to positive ethical arguments for temporarily waiving IP protections, which appeal to the values of globally solidarity and corporate responsibility.

Global solidarity underscores that during the COVID-19 pandemic, each nation’s interests are entwined with the interests of every other.22 Just as it is impossible for any nation standing alone to address the threat to human health climate change raises, it is impossible for any single nation to meet the challenge that COVID-19 and future pandemics present. Instead, humanity must stand together. In the past, nations have failed to do so. The epidemic of HIV/AIDS in Africa illustrates. Shamefully, it took nearly a decade for the first antiretroviral drugs to reach the African continent, even though Africa was the hardest hit region and antiretroviral drugs provided 90% mortality reduction. Although the US government was an early investor in research that produced antiviral drugs for HIV, distribution was controlled by big pharmaceutical companies driven by profit. The USA and other wealthy countries repeated this mistake during the COVID-19 pandemic, supporting vaccine developers without requiring technology transfers and donations to COVAX (the multilateral partnership supplying vaccines to LMICs). Ethically, the task ahead is fixing a problem of human making.

A second argument, based on corporate social responsibility, stresses expectations for and benefits of socially responsible behaviour by for-profit companies. Increasingly, companies appreciate the potential impact that socially responsible behaviour has on competitive advantage, reputation, retention of workers and customers, employee morale and relationships with stakeholders.23 IP protections shield pharmaceutical companies from competition, enabling them to monopolise markets and generate above-normal profits. During a pandemic, social responsibility requires temporarily limiting profits and requiring companies to give back, rather than allowing above-normal profits to accrue unchecked. Even Locke, who conceived of our modern notion of property rights, held that fundamental rights like property could be justly overridden under certain conditions, namely, when the goods are perishable and would go to waste or when their extraction may intrude on the common good, in which case they extend only to what leaves enough behind for others.24

Building on this analysis, we submit that displays of social responsibility fall along a continuum. During the COVID-19 pandemic, a high degree of responsibility would be shown by temporarily sharing patents for products aimed at preventing, containing, or treating COVID-19, which is India and South Africa’s proposal; moderate responsibility would be demonstrated by temporarily sharing licenses to manufacture COVID-19 vaccines, as the WTO Director General proposes; and minimal responsibility would be shown by sending vaccines directly to nations in response to pleas for help, which Pfizer did when it pledged up to 40 million doses of its vaccine to COVAX (which represents under 2% of the 2.5 billion doses Pfizer will produce in 2021).25