Access Problems and Intellectual Property

The notion of intellectual property, its applications, and its protections plays a considerable role in the modern business world. This fact is perhaps most discernible in the health care business in which companies have an objective to generate the most sales and increase revenues while also supplying a necessary social good to citizens throughout the world—medication. These two ends are not always compatible with one another and are frequently a source of ethical issues, particularly related to the role of intellectual property in the facilitation of the sales of medication. One of the most eminent ethical issues related to intellectual property rights of pharmaceutical companies is known as the access problem, in which the profit-driven business side of such companies, protected by intellectual property laws, makes it difficult for certain demographics to receive their vital products. A case study of a 1998 lawsuit involving the South African government and a number of such healthcare product providers illustrates a suitable demonstration for the ramifications of this particular issue. 

When considering the causes and the effects of the access problem of intellectual property related to pharmaceutical companies, it is important to ascertain the reason intellectual property laws are in place. Pharmaceutical companies spend a substantial amount of time, energy, resources and money to research and develop new products that they can market directly to and assist with health conditions in the world. Intellectual property rights are assigned to companies who come up with new products because once such a product is introduced to the marketplace, other companies can replicate it without making such a substantial investment in research and developing it. Therefore, the initial purveyor of any new product is assigned intellectual property rights as well as an expectation that its product will be priced accordingly (meaning high) to accommodate its monetary expenditure in developing the product. The formalizing of Intellectual Property Rights was assigned in Uruguay in 1986 under the Agreement on Trade-Related Aspects of Intellectual Property Rights, which unequivocally benefits the pharmaceutical companies (Sonderholm, 2010, p. 1107).

However, the initial pricing of products to offset researching and developmental costs means that countries that are economically disadvantaged may not be able to afford these products. Oftentimes, these countries are the ones whose populations are suffering conditions that render them those most in need of healthcare. This conundrum creates the ethical dilemma of the access problem, in which these poor countries in need of valuable medical resources cannot afford to pay them, yet intellectual property rights are protecting the ability of manufacturers to sell their products at extravagant prices (Sonderholm, 2010, p. 1108). 

This ethical issue gained international prominence with the 1998 case of the South African Pharmaceutical Manufacturers Association and a plethora of other multinational manufacturers against South Africa, which attempted to circumvent the exorbitant costs for valued medicines bypassing the Medicines and Related Substances Control Amendment Act No. 90 the previous year (T’Hoen, 2003, p. 43). There were several provisions in the South African act that helped to reduce the rates for much-needed medicine, including “generic substitutions of off-patent medicines, transparent pricing for all medicines, and the parallel importation of patented medicines” (T’Hoen, 2003, p. 43). The principal means of protection that the medical manufacturers had against these measures was based on the establishment of the Trade-Related Aspects of Intellectual Property Rights, which its lawsuit claimed the South African act violated. However, once the general public became aware of the lawsuit which was viewed as a legal means to extort money for valued medicine from indigent, at-risk sub-Saharan African populations (which have a plethora of AIDS cases) (T’Hoen, 2003, p. 42), the lawsuit was eventually dropped. 

This case study elucidated a number of insightful points regarding this specific ethical issue pertaining to intellectual property and business. It certainly demonstrates the way in which regards for intellectual property can cause extenuating circumstances, so that the measures that protect it are actually protecting the greed of corporations which manufacture medical products. Moreover, it indicates and corroborates a need for a viable balance between the production of medical necessities and the serving of a public good. Were the goods in question in this particular case study less necessary and life-threatening, national legislation would more than likely not have to be erected in order to circumvent protection afforded by the 1986 agreement in Uruguay. 

However, there are still some ways in which a balance between reinforcing the intellectual property rights of pharmaceutical manufacturers can help to serve the public interest while also allowing for a profit for those manufacturers. One of the more advantageous means of creating this sort of temperance is known as differential pricing, a notion that posits the viewpoint that goods should be sold at one price for less economically robust countries and sold at a higher price for those that are more economically robust (Sonderholm, 2010, p. 1109 ). This mechanism allows pharmaceutical companies to make their profit margins from those who can afford to pay them. Additionally, it ensures that much needed medical resources are attainable for the poorer, at-risk populations who require them the most. Lastly, it acknowledges the viewpoint that manufacturers do have a right to protect their intellectual property. However, it acknowledges The point that those rights do not supersede those of the general populace who needs those goods the most.

References

Sonderholm, J. (2010). Ethical issues surrounding intellectual property rights. Philosophy Compass, 12(5), 1107-1115. 

T’Hoen, E. (2003). TRIPS, pharmaceutical patents and access to essential medicines: Seattle, Doha and beyond. World Health Organization. Retrieved from http://www.who.int/intellectualproperty/topics/ip/tHoen.pdf