The Trans-Pacific Partnership and issues of social justice
That a marvelous order predominates in the world of living beings and in the forces of nature, is the plain lesson which the progress of modern research and the discoveries of technology teach us. And it is part of the greatness of man that he can appreciate that order and devise the means for harnessing those forces for his own benefit... Yet there is a disunity among individuals and among nations which is in striking contrast to this perfect order in the universe.1
– Pope John XXIII
In theory, patent law 'harnesses the forces' of knowledge and innovation by creating an incentive to invent and by providing for both the protection and dissemination of information, for the benefit of society. Indeed, translating an invention into a patentable product can be a long, complicated and expensive process. Imitating or replicating the product of invention, on the other hand, is relatively cheap and easy, and undermines this innovation process. Therefore, by imposing temporary restrictions on access to and use of information and ideas, patenting gives people an incentive to innovate and to publish their invention. The assumption is that because this stimulates research and development and enriches the public domain with knowledge and technology, it is to the benefit of all.
In reality, however, a property-based understanding of justice and an emphasis on patentability rather than practicality creates 'disunity among individuals and among nations'. Goods and services, including medicine and health care, become transactional resources, and socio-economic development becomes a disturbing reproduction of inequality, as resources are available only to those (individuals and/or nations) who can afford them. Our existing international agreements perpetuate these problems. The proposed Trans-Pacific Partnership Agreement (TPPA), as leaked, will exacerbate them even further.2
So what exactly is the problem with a property-based conception of justice? According to John Locke, "The great and chief end...of men's uniting into commonwealths, and putting themselves under government, is the preservation of their property."3 Preceding Locke, Galileo foresaw the importance of this preservation of property specifically in the context of innovation: "It does not suit me that the invention, which is my property and as created by me with great effort and cost, should become the common property of just anyone..."4. Therefore, the concept of exclusive property is central to our sense of society and individual freedom, indeed even justice.
However individual rights are never absolute, and to claim that a patent confers upon the owner an absolute and unfettered right to use its intellectual property (IP) as it wishes, "is no more correct than the proposition that use of one's personal property, such as a baseball bat, cannot give rise to tort liability"5. Herein lies the central problem. A property-based conception of justice legitimises inequalities, on the basis of a welfare maximisation calculus that does not account for different circumstances, nor issues of accessibility and redistribution. Rather, this calculus assesses feasibility in terms of a net increase to welfare and to the quality of health care; indiscriminate as to whom this increase benefits or disadvantages and, as a result, it is the underprivileged that continually miss out.
To qualify for protection as a patent, an invention must be new, non-obvious and useful. The modern emphasis on technological advancement has, however, encouraged legislators, IP offices and the courts to interpret this so as to maximise eligibility for patenting and, therefore, further foster innovation. Thus, these rights become both easier to obtain and more readily sought, and their quality and value diminishes. It leads to premature patenting of whole gene sequences and genetic substances, for example, in exchange for information that is limited and incomplete. Ultimately, this overcompensates patent-holders and undermines technological and social development, which is the supposed rationale for patenting.
The emphasis on patentability, and patent protection as the ends, also creates inefficient races between potential patent-holders, particularly in profitable areas, leading to unnecessary duplication of research, and wasted resources. More significantly, this reflects the fact that profitability is the stimulus for innovation, such that medicines for rare diseases, and for those among lower socio-economic groups are not developed. This creates classes in terms of the availability of medicine and health care, and increases inequalities. Patents become a tool for large corporations to advance their economic growth and establish market dominance, rather than an incentive for socially valuable research.
This represents an inequitable bargain between society and patent-holders, one that is inevitably in favour of powerful stakeholders and their private economic interests. The principles of social justice, on the other hand, dictate that we should treat property and IP not as the foundation of society and justice, but as a tool for achieving a sustainable society of justice and equality. In practical terms this means accounting for different needs and circumstances through flexibility, and restricting the power and control of patent-holders, whereby their rights are confined within fixed parameters and better balanced with their duties.
The existing Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), an international agreement on minimum IP standards, attempts to reach a compromise between developed and developing countries, providing for the flexibility and fixed parameters envisioned above, at least on paper. The problem is, it assumes free and informed consent on the part of all its members as if they all have equal negotiating power, and as if the interests of all members are communicated by effective and representative democracies. It also assumes that members will be able to use these measures for flexibility freely, and without fear of tariffs and trade sanctions. Moreover, it assumes that future trade agreements will not further undermine these measures.
In reality, however, these [measures] are given the absolute minimum consideration by the community of people who interprets them. Developed countries and multinational corporations are putting strong pressure on developing countries wanting to use TRIPS' flexibility and, above all, are negotiating bilateral and regional free-trade agreements to impose more severe and contingent IP standards than those outlined in TRIPS.6
The Doha Declaration, in response, offers a more equitable and truly flexible approach to TRIPS and international IP law, with a domestic needs perspective. But this is only another step in the right direction. And now, the proposed TPPA threatens to negate these steps towards a more fair and sustainable approach. It does not do so by imposing stricter standards on those developing countries considered above (they are not party to the TPPA), although it will have the effect of putting pressure on them, but rather by undercutting TRIPS and its value for these countries, and by increasing the power of those (countries and corporations) whose interests subordinate these countries.
The first (leaked) draft of the TPPA omitted any mention of the Doha Declaration, and the second (leaked) draft makes only brief and heavily qualified reference to it, which does not inspire confidence. This is particularly concerning in light of the proposed expansion of the scope of patenting. Such expansion, as proposed largely by the United States and Japan, could prevent parties from denying protection if "the product [does] not result in an enhanced efficacy of the known product when the applicant has set forth distinguishing features"7. This is cause for more concern in terms of the quality and value of patents. More fundamentally, however, a wider scope for patent protection does not by any means create any further opportunities for developing countries to enjoy the benefits of IP and innovation. Instead it again favours those who already have the wealth and resources to expand, reinforcing the existing inequalities.
The good news is that, according to the leaked documents, New Zealand opposes proposals (such as that above) for significant expansion of patent protection8. The bad news is that our representatives, and those of the other parties, continue to discuss the TPPA behind a shroud of secrecy that thwarts public discussion and participation. Further bad news is that these negotiations, like those concerning TRIPS, are characterised by a typical disparity in bargaining power that ultimately serves the interests of the more powerful (countries and corporations). To the extent that this subordinates the interests of developing countries and stifles their economic growth, our involvement only supports such injustice.
A number of commentators have highlighted the fact that the TPPA poses potentially serious consequences for New Zealand, in terms of pricing and availability of medicine and health care, and bargaining power for purchasing pharmaceuticals. While this is a real concern, we should indeed be equally (if not more) concerned about the significant threat to global health care and equality, or at least the steps already made towards equality. The clear emphasis on property, patentability and profit ignores those whose needs are not voiced by purchasing power and instead serves those whose interests are largely private and economic.
By individualizing creation, by disembedding it from the social milieu from which all knowledge is drawn, intellectual property rights deny the importance of the public realm, and by doing so reward only a small group of rights holders rather than the carriers of social knowledge, and, more importantly, ignoring the social welfare benefits of those excluded from use, not by ignorance or lack of interest, but by their poverty.9
While it might be argued that we need more empirical evidence to prove the positive correlation between patent protection and innovation, we need no further evidence, as Pope Francis reminds us, for the fact that "each meaningful economic decision made in one part of the world has repercussions everywhere else; consequently, no government can act without regard for shared responsibility"10. We must understand the ramifications of the TPPA not just for New Zealand but also and above all for developing countries that are not party to this agreement. We must encourage our government to act with transparency and integrity, and with regard for the significant global concerns for which we share responsibility.
Daniel Kleinsman LLB, completed his Law Degree at Victoria University of Wellington in 2014. He has experience in the area of intellectual property law.
John XXIII, Pacem in Terris, http://w2.vatican.va/content/john-xxiii/en/encyclicals/documents/hf_j-xxiii_enc_11041963_pacem.html. Accessed 20 March 2015.
WikiLeaks, https://wikileaks.org/tpp-ip2/, accessed 20 March 2015.
 John Locke, Second Treatise of Civil Government: The Ends of Political Society and Government (1690), Chapter IX.
 Cited by R Hewitt Pate, Competition and Intellectual Property in the US: Licensing Freedom and the Limits of Antitrust, p 60.
United States v. Microsoft Corp., 253 F.3d 34 (D.C. Cir. 2001).
Louise Bernier, Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective (Edward Elgar, 2010), p 139.
Wikileaks, https://wikileaks.org/tpp-ip2/, Article QQ.E.1: Patents / Patentable Subject Matter
Ibid., (see also Paper submitted by NZ on IP Proposal: http://www.citizen.org/documents/NZleakedIPpaper-1.pdf).
Louise Bernier, Justice in Genetics: Intellectual Property and Human Rights from a Cosmopolitan Liberal Perspective (Edward Elgar, 2010), p 111.
Francis, Evangelii Gaudium: http://w2.vatican.va/content/francesco/en/apost_exhortations/documents/papa-francesco_esortazione-ap_20131124_evangelii-gaudium.html. Accessed 20 March 2015