The right to property and the right to health

Saturday 6 February 2010 1:35PM

Is it morally permissible to impose strong patent protections where doing so prices important new medicines out of the reach of many poor people? This week on The Philosopher's Zone, Thomas Pogge, professor of philosophy at Yale University, talks about the morality of the global trade in medicine.

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Alan Saunders: This week, a collision of property rights, global diseases and brand-name medicines.

Hello and welcome to The Philosopher's Zone, I'm Alan Saunders, and I hope you can stay with us today as we try to work out the best way of finding new treatments and cures for some of the world's most deadly diseases.

It's 15 years since the World Trade Organisation shook up the global system for intellectual property with an agreement now known by its acronym, TRIPS: The Trade-Related Aspects of Intellectual Property Rights.

Now intellectual property might not be something that keeps you awake at night but its impact on the world's poorest people is huge, and it's something we'll be looking at on today's show, particularly since the full impact of TRIPS has not yet been felt. For example, it won't be until 2020 that all medicines patented in India will have the new, much stronger patents.

Thomas Pogge is Professor of Philosophy at Yale University and Research Director at the Oslo University Centre for the Study of Mind in Nature. He's also Professorial Fellow at the Centre for Applied Philosophy and Public Ethics in Australia. Thomas, welcome to the show.

Thomas Pogge: Thanks very much, Alan.

Alan Saunders: Well, set the scene: what is it that you're talking about when you talk about these global diseases and the issues that arise from them?

Thomas Pogge: Well let's start with the TRIPS agreement that you just mentioned. The TRIPS agreement was an integral part of the World Trade Organisation Treaty that was concluded in the mid-1990s and essentially the idea is that the rich countries, as a condition for opening their markets more widely for imports from the poor countries, demanded that the poor countries should strengthen their intellectual property rights, and what that means essentially is that products that are mostly developed in the rich Western countries in entertainment, in software, in pharmaceuticals and also in agricultural, you know seeds and so on, that these products now enjoy the same sort of high level of patent and copyright protection that they have enjoyed in the rich countries. So no more copying of these products by generic companies that produced cheap medicines for the needs of poor patients in developing countries.

So what that means is that we now have more or less globally uniform prices for medicines, at a very high level, high mark-up, and the vast majority of the world's population can no longer afford these medicines. An additional problem is that innovation is concentrated on the diseases that rich people have and so many of the diseases that are heavily concentrated among the poor, are not even being researched at all, because even with the ability to charge high mark-ups, you cannot make much money, because if you do charge high mark-ups, the patients who actually have the disease cannot buy the remedy.

Alan Saunders: So basically, what we're talking about here is the developed world employing international legislation to secure its financial position in the drugs market?

Thomas Pogge: Yes, that is right. It was essentially a concert effort by four industries, the agribusinesses, the pharmaceutical industry, the entertainment industry and the software industry, including Microsoft, which pushed very hard the Clinton Administration and also the European governments, to insist on the TRIPS agreement as an integral part of the WTO Treaty.

Alan Saunders: Now you've written that about one-third of all human deaths each year, that's about 18-million people, are due to poverty-related causes, such as the lack of available drinking water, that's to say water that doesn't cause illness; and the lack of access to vaccines and to medicines when people become ill. So it's clear, is it, that there is a moral imperative to do something about this?

Thomas Pogge: Yes, I think there's a moral imperative to do something about it, and I would add to that that contrary to the way the problem is normally perceived in the rich countries, the moral imperative is one not only of doing more to help the poor but also one of doing less to harm them. So for me, the TRIPS agreement illustrates in a very clear-cut way, the ways in which Western governments and indirectly of course, the citizens who are responsible for what these governments are doing, are actually burdening the poor, are harming them, are causing the persistence of poverty and disease among the bottom half of the world's population.

Alan Saunders: And TRIPS, the Trade-Related Aspects of Intellectual Property Rights, it does decisively, does it, change the nature of what medicines are produced and who can get their hands on them?

Thomas Pogge: Indeed, yes, especially the latter. It changes very much the nature of who can get their hands on them, because before TRIPS, in the poor countries, it was very easy to get generic copies of even the most advanced medicines that were very expensive and patented in the rich countries, but in the poor countries you could essentially get very cheap copies of them.

Alan Saunders: So the situation before TRIPS, you would say was the morally preferable one, was it?

Thomas Pogge: It was by and large morally preferable but it was by no means ideal, because the second problem that I outlined earlier, namely the problem that too little money is spent on trying to research diseases that are concentrated among the poor, that problem certainly existed before TRIPS and if anything was worse before TRIPS than it is now, because now at least, the pharmaceutical companies can look forward to make some profits on rich people in poor countries when they research diseases such as tropical diseases, malaria and so on, which they couldn't hope to do before TRIPS. So the innovation situation is actually slightly improved, but the access situation has become much worse.

Alan Saunders: I presume you are not against patent laws protecting pharmaceutical companies who actually do spend a lot of time and money researching and developing medicines?

Thomas Pogge: That is correct, I don't oppose patent laws, and in any case it would be politically quite futile, given that the TRIPS agreement is very unlikely to be changed. But what I think we should think about is how we reward pharmaceutical innovators. I think there are much better ways of rewarding pharmaceutical innovators in ways that do not involve a mark-up of the products that they develop. Because we rewarding innovators through mark-ups, quite necessarily leads to the under-utilisation of the invention, and that is something we should of course try to avoid.

Alan Saunders: What is the solution here? How are you going to reward the inventiveness and the industry of pharmaceutical companies?

Thomas Pogge: Well we've developed with an international interdisciplinary team of academics and practitioners, a model called the Health Impact Fund, which we propose not as an alternative to the patent regime, but rather as a complement to it. So there would be a second track on which pharmaceutical companies could be rewarded, and pharmaceutical companies would have, with regard to each and every one of their new products, a choice: whether to register with the Health Impact Fund or not.

If a company chooses to register a product, it gets one advantage and one disadvantage. The advantage is that for the first ten years that the product is on the market, it participates in annual reward pools, where essentially we have a $US6-billion pool each and every year, that gets divided up among the registered innovators, in proportion to the global health impact of their products. So if you have a product that is registered and accounts in particular here for 12% of the global health impact of all registered products, then you will receive 12% of the $6-billion pool in that year, and that goes on for 10 years until the reward period for the product concludes.

The disadvantage of registration is that you lose your ability to mark up the product. You have to commit to sell the product wherever it is needed globally, at a price that is no higher than the lowest feasible cost of manufacture and distribution of the product. So basically there would be rock-bottom prices even cheaper than those traditionally charged by generic companies, and all human beings worldwide including the rich, will benefit from these low prices.

Alan Saunders: The price of medicine. You're with Thomas Pogge who is not only a Professor of Philosophy at Yale University, but has also developed a proposal for what he hopes will render the making and selling of medicines fairer. It's called the Health Impact Fund, and details of that are on our website.

Now Thomas, you've suggested that patent laws might create greater incentive to companies to produce vaccines and medicines affecting poorer people in developing countries. But isn't in fact the following scenario more likely, simply because it's more easily profitable. Instead of research and money going into diseases affecting the world's poor, we will see even more of what's known as disease-mongering. Now disease-mongering is basically something you do when you want relatively healthy people to buy your medicines. You expand the definition of treatable illness and conditions, opening up new markets with new products.

Thomas Pogge: Yes indeed, that is a further problem of the way in which pharmaceutical innovation is now incentivised. Essentially a pharmaceutical company that has a medicine, gets rewarded for finding somebody who's willing to pay for that medicine. They get rewarded through the mark-up, and if you can persuade people that they have a disease, or persuade them that this drug will help them in some other way, then you can make money simply by selling this drug to people regardless of whether these people gain any heath impact from the medicine or not.

Here the Health Impact Fund, the second tier that we are trying to establish, is actually much better, in that it looks at the actual health impact that a medicine achieves. So here, selling people a medicine for a disease that is an invention of the pharmaceutical innovator, or selling people a medicine that is not indicated for their particular disease, will not make the innovator any money at all, because only if there's measurable health impact, will the innovator get paid.

Alan Saunders: Given that you are a moral philosopher, what are the moral philosophical issues here? I mean, let me for example, take one moral stance, which is a libertarian stance, where presumably what you would say is that we want a free and open market in medicines, and if some people are disadvantaged by that, well that's just how the cookie crumbles.

Thomas Pogge: Yes, that's indeed a very widespread opinion, certainly in the Anglo Saxon countries, and I think that one should think here more carefully about what the implications of libertarianism actually are. It's certainly a fundamental principle of libertarianism that people have a right to their own property, and that they are not any kind of strong moral obligation to share their property with other people, even when that means that these other people will suffer hunger and disease. But the question that I would raise for the libertarians is, Is it legitimate simply because one agent has produced a new chemical compound, to say that a right derives from that to forbid other people from producing the same compound?

In other words, is the basis, the fundamental principle of the TRIPS agreement, a legitimate result of libertarian principles? And here I would say that if anything, libertarian principles have the exact opposite conclusion, that it is not legitimate for people by doing something with their own property, for example creating a new chemical compound, thereby to prevent other people from doing the exact same thing with their property, namely to produce the same compound. So I think that intellectual property rights, even though of course they are very cleverly named, as property rights, do violate ordinary physical property rights to dispose of one's property as one sees fit.

Alan Saunders: Am I right in seeing here an analogy with another property right issue which is the issue relating to genetic material in agriculture?

Thomas Pogge: Yes indeed. I mean we have exactly the same sort of problem there as well, that people are creating new strains from the seeds of agricultural products, and they're then saying that because they are the innovators, they can prevent anybody else from using similar strains in agriculture, and they can demand payment, even in situations where seeds have flown onto somebody else's land and have grown plants there. So it's exactly the same issue, namely that we need to draw a very strong distinction between physical property rights, where one owns a token, a particular physical object in space time, and the so-called intellectual property rights which give one ownership to a particular type of physical entity everywhere in the universe.

Alan Saunders: So what is the ideal situation here for you? What is the morally ideal situation?

Thomas Pogge: I would say in this whole domain, we should be in a very broad sense, consequentialists. We should try to look for rules that work. You said earlier that it's very important that we fund pharmaceutical companies to do the research. This research is very expensive, we have to find a way of funding it. The way in which we currently fund it, through rewards that involve mark-ups, it's just a very irrational, very silly way of funding it, because it leads, as I said, quite necessarily, to the under-utilisation of the invention. We have to find a better way of funding it, that makes this invention very widely available.

If I can quickly point to another area in which we have the exact same problem: It's with green technologies. We have innovators who develop wonderful ways of saving greenhouse gases, reducing emissions, but the only way for these innovators to get paid is by marking up the product that results from the inventions. But if you mark up the product, then we deter the use of the inventions, and so we are now in the absurd situation that many people buying, for example, new power plants in China, are not using the latest technologies, because these technologies are expensive, artificially expensive through the mark-ups that innovators are demanding for the invention.

Alan Saunders: So where is the moral cutting-edge here? Is it that people are dying, and they don't have to be dying in these huge numbers? Or is it the question of who owns what?

Thomas Pogge: The cutting-edge is certainly that people are dying in very large numbers, and the question of who owns what is important, because it is adduced by those who defend the status quo, in justification of their conduct. They're saying that we are acting no worse than somebody who is refusing to share their property with people who are worse off than themselves. We are admittedly not doing everything we can to help those worse off than ourselves, but we are not really doing anything that is seriously wrong.

Now one can engage that argument by saying that not doing what one can to help people who would otherwise die, is something seriously wrong, and that's the kind of line that Peter Singer is taking and to which I'm also very sympathetic. But the kinds of arguments that I make are different sorts of arguments. They say that actually the analogy that you are appealing to in defence of the status quo, is not a functioning analogy, you're not merely not sharing what you legitimately own, but you don't really legitimately own this intellectual property, these types of medicines in this particular case, and so it is not the case that you can appeal to these libertarian principles in defence of your conduct.

Alan Saunders: You mentioned your sympathy with Peter Singer's position. Peter Singer, of course, is a Utilitarian. He believes that you should be adopting a moral position which will maximise the greatest happiness, or the greatest benefit of the greatest number. That's not where you're coming from?

Thomas Pogge: No, that's certainly not where I'm coming from, but one doesn't have to be a Utilitarian to agree that we have duties to aid people who are in severe distress, so if we can, as Singer puts it in his famous article from 1971, or '72, if we can without sacrificing anything of moral significance, help people avoid very serious harm, then we do have a significantly strong moral reason to do exactly that. And so in this way, I also disagree with the Libertarian position as it's usually framed . But my own arguments are arguments that take the Libertarian principles for granted, and say that even if you grant these fundamental principles about physical property rights, they actually fly in the face of the assertion of intellectual property rights, rather than support them.

Alan Saunders: Perhaps to close, I could ask you a more general question: You're a Professor of Philosophy, and in the course of this discussion, we have been talking about really quite basic, fundamental issues, which anybody in the pharmaceutical industry could be talking about. We haven't necessarily been addressing things at a very abstract philosophical level. Do you think that philosophy, moral philosophy I mean, has changed over the years? Because this isn't what moral philosophy was like when I was at university, it was much more abstract. Do you think it's changed, and do you think that this change is for the better?

Thomas Pogge: Well it's certainly changed since the time that you were in university. I was at university as well, and I think there is indeed a change for the better, but I should also point out that perhaps in some ways, philosophy has gone back to where it once originated, right? You may know that the word 'philosophy' stands for the love of wisdom, and wisdom is understanding what matters, understanding what is important. And here I think philosophers can make an enormous contribution by highlighting the kinds of things that every moral person ought to be thinking about, that are really important issues.

The stunning thing about the world as it is, is that we have a tremendously large problem in it, namely one-third of all human deaths, 80-million every year from poverty-related causes, trivial diseases and so on, and stunningly, nobody is really paying attention to it. The people in a position to do something about it, the citizens of the wealthy countries, the government of the wealthy countries, are ignoring that problem, and so I think it is the role of philosophers in the traditional sense of love of wisdom highlighting what matters, to put their finger on these issue to bring them to the public's attentiion, and also to think creatively and constructively about what the solutions might be. You can't expect that from economists, you can't expect that from people who run the pharmaceutical industry, and you also can't expect that from politicians, all of whom are basically driven by motivations that are quite different from those of looking at ultimate ends at what makes a society just and so on.

Alan Saunders: So your position is that of Socrates in the Agora?

Thomas Pogge: Well he's certainly one of the models that inspire my work, yes, but I would also think that Kant when he wrote his essay Perpetual Peace, and Rawls' work; these are all inspirations, these are all people who have tried hard to make philosophy relevant to the public and to the polity. And perhaps I'm carrying it just a little bit further than they by developing real concrete reforms, political reforms, and I feel that that is necessary because just leaving it at the general philosophical principles if often insufficient to inspire lawyers, economists and practitioners to take the ideas forward.

Alan Saunders: Thomas Pogge, our guest this week on The Philosopher's Zone.

Thomas wears many hats: among other things he's Professor of Philosophy and International Affairs at Yale University, as well as Professorial Fellow at the Centre for Applied Philosophy and Public Ethics at the Australian National University.

Our website contains more information about Thomas, as well as a link to his work on the Health Impact Fund.

We'd love to hear your thoughts on this program, or on philosophy more generally, and perhaps other listeners would like to hear what you have to say, and discuss it with you too. The best way to do this is to head to our website and click on this week's program. You'll see a spot that says 'Add Your Comment'. If other listeners have commented already, you can read what they have to say and reply to them specifically, or begin a new comment of your own.

I'm Alan Saunders; thanks to producer Kyla Slaven and sound engineer Charlie McKune . Hope you can join me next week. Till then, 'bye for now.


Thomas Pogge
Leitner Professor of Philosophy and International Affairs
Yale University
United States
Research Director
Centre for the Study of Mind in Nature
University of Oslo
Professorial Fellow
Centre for Applied Philosophy and Public Ethics
Australian National University


Alan Saunders
Kyla Slaven
Sound Engineer
Charlie McCune

Comments (11)

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  • Rob Don :

    07 Feb 2010 10:49:27pm

    Dear Alan and team,

    I listened to your discussion with Thomas Pogge with much interest. I am an expat Ausse working with an organisation in Switzerland called Drugs for Neglected Diseases initiative. We design, develop and market/make available modern drugs for diseases such as malaria and African sleeping sickness. As such, I am not an apologist for the pharma industry but:

    The problem is much more innovation rather than access. Pharma do make many drugs available at cost or even through donation. e.g. Ivemectin for worms (donation) Coartem for malaria (virtually at cost) and antiretrovirals for HIV. In addition, there are very significant purchasers funded by public monies from wealthy countries e.g. The Global Fund and Unitaid. However very little money is directed to innovation - basic drug discovery for diseases where drugs do not exist even if there is a will to provide access to patients.

    An alternative reward scheme for innovation is an interesting one but should be very carefully costed and be truly competitive to change research strategies. Second, if this is done, were do the billions of dollars come from? I can assure that such funds to foster and reward innovation in drug discovery for neglected diseases are certainly not available at present and are a quantum leap from those which are.

    Product development partnerships

    A strategy adopted by us and other similar organisations is to work with pharma and access their IP to design and develop truly modern drugs for these diseases and then license them back to the companies. This reduces their risk associated with drug discovery and removes the need for them to allocate resources that could be "better spent" developing the next blockbuster drug. We have had a very positive response with respect to access to IP and in one case a company has initiated a "patent pool" to facilitate such access.

    We do hold that people in wealthier countries have a moral obligation to support this innovation and as such we obtain at least half of our funds from government donations. The remainder is from philanthropy.

    It does work: Since our inception six years ago, we developed two new antimalarials (30 million treatments made available last year) and a new treatment for African sleeping sickness and we have a very promising pipeline in these and other diseases.

    Finally: Libertarianism/free market

    Pharma operate in a free market. We do not see that Holden should make utes available at no profit in impoverished countries or that Kraft should make vegemite available. Yet pharma answer to the same master (Financial markets) and play in the same competitive arena.

    With my best regards

    PS I thoroughly enjoy your program.

  • Mary :

    09 Feb 2010 10:07:55am

    Dear Alan, I am a law student who is going to study Intellectual Property this year; as is so often the case, today's topic is not only interesting, but is of direct professional relevance to me. RN should provide a link to the Law Report of 26.1.10, on 'Patent Pools', for a recent legal perspective on the issue.
    Yours, Mary

      • Kyla Slaven :

        09 Feb 2010 1:34:09pm

        Hi Mary, Thanks for the suggestion, we've added the link. Cheers, Kyla, Producer, The Philosopher's Zone

          • Peter Mountford :

            25 Feb 2010 11:24:37am

            Hi Kyla,

            I can't seem to find the link to "Law Report of 26.1.10" in the "The right to property and the right to health" story. Can you direct me.



            Moderator: Here it is, Peter:
            Thanks, Kyla

  • Matt :

    09 Feb 2010 2:28:52pm

    I was interested to hear the incessant use of the word 'libertarian' throughout the broadcast which I just listened to online (thank you ABC).

    i don't for a minute claim to be an authority on libertarianism, libertarian philosophy et al and its impact(s) on market mechanisms a la 'free markets'. In saying this, I do wonder what the qualitative basis for the use of libertarian (in relation to free markets) was?

    A casual observer could note: markets are not free as such, or in any way independent from regulation - the very premise of this program - the agreement and specific acronym which now evades me concerning patent protection.

    F A Hayek in The Road to Serfdom decries intellectual property (IP) as manipulation of an ideal free market. Whereby it doesn’t serve the interests of greatest efficiencies for the betterment of producers (being plural not singular in any one regard) and consumers too, who would benefit (in cost & distribution terms) from the most efficient means of production at a local level.

    i wonder again: would F A Hayek be a name synonymous with this apparent libertarian free market ideology, purportedly at fault in the circumstance(s) detailed/alluded to in the program?


  • Ak Mike :

    10 Feb 2010 5:29:49pm

    Excellent program as usual. Pogge has some very thought provoking ideas - as do the commenters.

    I would just add that Pogge's version of libertarianism is a straw man. It is not true that libertarians deny the moral imperative to aid the less fortunate.

    What is true is that libertarians believe that the government has no moral right to forcibly extract money for that purpose from individuals. I am surprised that a professional philosopher would make such an elementary mistake.

  • G.Smith :

    10 Feb 2010 10:19:06pm

    Thomas Pogge interview makes one feel there may yet be hope for humanity. I would have appreciated some exposition on how the health impact of drug innovation would be measured.

  • Larry Adlard :

    12 Feb 2010 4:08:45am

    Dear Alan,

    Having failed at state level, this is a revival of Marxism on a worldwide basis, masquerading as humanitarianism. It relies on making very ordinary working people feel guilty because they live in a developed economy when in reality they struggle just as much as ordinary working people in undeveloped economies. For many, life in a developed economy is comfortable but I do not know of a developed economy which doesn’t have a poor underclass. The concept that all Africans/Indians/??? are poor and all Westerners are rich is conveniently simplistic.

    Professor Pogge lives a very priveledged life being well paid for his musings. Not content with making his own contribution, he wishes to commandeer the resources of relatively poor taxpayers to further his concept of world justice. That is 0.3% of a Country’s GDP if I read his proposal correctly.

    What are the ethics of Bill Gates setting up a charity to deliver health care to Africa. Is that because poor people in the United States without health care, are somehow, less worthy of his charity?

    Enjoy your show.

    Larry Adlard, BRADFORD UK

      • Michael :

        18 Sep 2010 12:37:57pm

        Dear Lary,

        "ordinary working people....struggle just as much as ordinary working people in undeveloped countries". It might help your argument to travel to Africa and India, then you might be able to understand the scale and severity of the problems faced by some developing countries are not comparable to western countries.

        Many people in poverty in the UK and USA originate from developing countries...problems cross borders, we live in a globalised world. World justice? From my perspective its more like enlightened self-interest. And surely, as an individual, Bill Gates can ethically spend his money however he likes in compliance with the law?


  • Jennifer Flores :

    06 Oct 2010 7:13:46am

    the discussion with Thomas Pogge. it was very interesting.i believe that with this message it feels like their is hope for humanity. i feel like in this transcript they show how ordinary people like my family and i struggle to get new medicines and have no opportunity of the cost lowering down.

  • Wm. P. Fisher :

    26 Oct 2010 1:05:48pm

    Dear Alan:
    Terribly interesting! As the old time TV show character often put it, "inquiring minds want to know".
    Why, for example did the drug I took for cancer cost $6000.00 US-- per treatment? There were 25 treatments.
    Several years ago the company that makes that drug made 1.6 Billion Euros in a single year ---on that single drug. Interestingly enough it seems to be the same drug that my father took 25 years ago. Why is the price in Canada reasonable and yet it is astronomical in the USA? You see, I'm a screaming hawk of a mad conservative but there is something terribly wrong here. Could that wrong something possibly be greed?
    Why do drug companies advertise during prime time? They seldom do research on rare dideases now do they? No money in it. I also doubt that there is that much time and effort going into the "research" they squall so loud about.
    It grieves my heart to think (much less write) "price controls",
    but knucklehead that I am, that is what comes to mind.
    Years ago, my four year old grand daughter asked "What is the right thing to do Grampa?" Years of philosophical study almost failed me. "The smart should help the slow, The strong should help the weak and the rich should help the poor." That was the best I could do in four years old child talk.
    Surely there is a solution, You all must simply keep on plugging at it.Very best to all.
    Bill Fisher