Tuesday, June 28, 2011

The Pharmaceutical Industry and Intellectual Property

Going along with the HIV/AIDS theme, I read an article in the New York Post* that discussed, in part, how HIV drug costs remain high despite (that is the tone of the article; I would say in order to sustain) an enormous amount of profit from their sale:

"HIV drug profits are exceptionally high, as indicated by the 37 percent earned on sales in 2010 Gilead, the leading HIV drugmaker.  This is twice the general profit level in the pharmaceutical industry, which is itself substantially higher than in most industries."

One sentence, in particular, contained one nail-on-the-head truth, and one falllatious myth of neoliberalism:

"Federal and state governments can no longer afford to subsidize the lofty profits that were useful when new HIV drugs needed robust incentives for quick development."

First, it is absolutely true that by sponsoring programs to make HIV treatments more affordable for low income individuals, the government is essentially subsidizing the massive profits of the pharmaceutical companies. That is why this "charity" approach is far inferior to a more systemic challenge of the legitimacy of intellectual property laws.

But that brings me to the myth. The idea that large monetary incentives are necessary to promote innovation has reached the level of taken-for-granted, common-sense hegemony.

Of course creativity requires guaranteed monetary incentives. That is why human beings created nothing at all until the concept of intellectual property was developed a century or so ago.

The problem is, the notion of "intellectual property" rests on premises that are not compatable with the actual nature of cultural production. The best way to illustrate this nature is through a linguistic metaphor. Literary theorist Mikhail Bakhtin famously described the way in which every linguistic utterance mimics a pre-existing pattern of speech (associated with a particular group of people and related to the group's other socio-cultural attributes). Although each individual in theory possesses infinite creative capacity in terms of what she or he can say (language is infinite), in practice people almost always repeat bits of speech (sentences, phrases, grammatical stylings etc.) that they have already heard in their particular social milieu. The true nature of innovation and change lies in the way in which people take the words of others and (in the words of Bakhtin) populate them with their own intentions, as well as bring them into new combinations with the words of others.

Following Bakhtin, other cultural theorists have argued that innovation of any kind occurs through novel melding of material from other individuals.  Thus, creativity is not an individual endeavor.  In fact, creativity requires "plagiarism."  I am reminded of an excellent quote by Chris Martin, the frontman of the band Coldplay:

"Well, you know, I think as we go further and further from just being influenced by Radiohead to being influenced by lots more people... It's just blatant plagiarism.  I mean, all that we've done, really, is expanded our plagiaristic palate."

If creativity requires a free flow of ideas, then the existence of intellectual property actually inhibits, rather than promotes, creativity.

Where did this concept come from then? Very simply, it is a quite effective way of legitimizing monopolies. That is the only purpose the concept of "intellectual property" has ever served, and the pharmaceutical industry is an exemplar, not an aberration.

Furthermore, pharmaceutical companies patent genetic material (obviously something they can't "create"!); often they solicit indigenous communities around the world to share information regarding local plants and herbs. Once the genetic material is patented, these groups no longer have the free access they enjoyed before! There is no way to argue that this practice encourages innovation. The pharmaceutical companies employed no intellectual effort of their own to obtain this knowledge (except, perhaps, for preparing the necessary legal conditions that allow them to do this). It is much more akin to "stealing" than innovation.

Intellectual property does not protect artists, writers, or inventors.   It protects the corporate oligarchy.   If we want to fight this oligarchy, we must challenge the notion of intellectual property.

*"We can change the reality of AIDS" by James Driscoll


  1. Of course creativity requires guaranteed monetary incentives. That is why human beings created nothing at all until the concept of intellectual property was developed a century or so ago - huh??

    1. I was trying to be sarcastic. :) Maybe it doesn't come across very well. I just meant that the assertion that innovation requires guaranteed compensation (personal, not societal) is undercut by the fact that intellectual property is a relatively recent concept, yet there was no lack of innovation throughout human history.