In May 2007, Brazil issued its first compulsory license for an antiretroviral drug, efaviren, which is currently used by hundreds of thousands of Brazilians to treat and prevent HIV/AIDS. A compulsory license is a legal mechanism that allows a country to manufacture or buy generic versions of patented drugs while paying the patent holder only a small royalty. The patent holder, Merck, was strongly apposed to this breach in patent, and claim this is an unethical act that should be punished as theft by the World Trade Organization, and Brazil’s President Luiz Inacio Lula da Silva argues that this act was ethical because his country was in a state of emergency and needed this drug.
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Analyzing this issue through the ethical lens of Act Utilitarianism and Kantianism, it is clear that the act by Brazil is in fact ethical, because this act benefits far more people than it harms.
First, it is important to understand some background information on pharmaceutical patents, and their use in the United States. The patent was invented to motivate Americans to research and find solutions to problems such as curing AIDS. Research can be very costly and the patent is meant as way to ensure one will be compensated for their investment. If the patent is used in this ideal case, it is ethically good by Act Utilitarianism. If researchers find the cure for cancer and spend millions of dollars to find this cure, and then their cure is stolen and used without paying those who hold the copyright, then this is unethical. Yes, those who receive this medicine for free benefit greatly, however those that created the cure are forced into poverty due to debt from research. As a result, scientists are no longer motivated to research, and future diseases will go uncured and many more people will be harmed than helped in the long run. However, this is not what is happening today. Now it is common for drug companies to purchase patents without doing any research and proceed to exploit those patents to profit as much as possible. This leads to price gouging where drug companies increase the price as much as 500% or more, as in the case of the EpiPen. This also leads to increased competition among researchers for these patents which decreases cooperative research and sharing, and ultimately slows down the research process. The patent system no longer benefits the people, as it was originally intended to, instead it benefits the drug corporations, and the few executives who control them. Although it was not the authors of the patent system’s intention according to Act Utilitarianism, the patent system as it is used today is unethical.
Let us consider the benefits and harms of the actions taken by Brazil. The Drug was offered by Merck for a price of $580 per patient/year, and the generic version of the drug will now be purchased from India at $170 per patient/year. There are 75,000 patients in Brazil, and the patent was valid until 2012. The money saved by Brazil is equal to $184,500,000. The money gained by Brazil and India in this scenario is equal to money lost by Merck, therefore from an ethical standpoint looking at money alone cannot be considered an ethical action, however there are more than just monetary factors to consider. Because Brazil is saving this money, they are able to provide the drug to all their citizens free of cost which greatly improves quality of life of thousands. Merck, which is a 40 billion dollar a year company will feel this loss much less, than a developing country.
In order to make a strong case, it is important to analyze a topic with more than just one workable ethical theory. It is also provable through Kantianism that the action taken by Brazil is ethical. Imagine, for example, that every country did what Brazil did, and circumvented the patent paying only a small royalty. Now imagine this happened for all drugs, eventually the system we have now of large pharmaceutical companies controlling the distribution of drugs would fall apart. The industry would be forced to evolve, and with it the culture of drugs in America, and the world. Currently in America, we are constantly bombarded with ads for depression, erectile dysfunction, and other medication. Pharmaceutical companies spend millions of dollars marketing, and using people as a means to an end to make money and sell more of their drug, instead of spending money researching new ways to cure disease. If all countries were like Brazil, and refused to pay these premiums for medicine, companies would be forced to strip their operations of all the unnecessary money-making schemes. It is also possible to view this scenario from the other side, and pose the question what if all medicine were controlled by corporations with no option to act as Brazil did. In that case Brazil would not have been able to provide this medicine to its citizens for free, and many more people would go untreated. This action would be even more exaggerated in African countries which are much poorer and have a larger AIDS epidemic.
The alternative to this is for the government to mitigate the buying and selling of pharmaceuticals through price controlling. This would insure that the motivation to research new drugs remains present, and researchers are generously compensated. It would also insure that users are not charged absurdly for a drug that could be life or death for them. Many would criticize this action as an impedance to capitalism, however this approach has been used historically in very beneficial, for example in the United States to protect farmers many regulations were set to control the pricing, and as result, the agriculture industry has stayed strong.
In the case of the action taken by Brazil, they decided to break the patent, because the price the drug was being offered was not affordable by many Brazilians. This actions greatly increases the happiness of thousands of Brazilians who would not have had access to a medicine that greatly increases their quality of life otherwise. The action harms those who lose money due to this break in patent, which is executives in Merck who are stock holders, and the existing pharmaceutical sales system that exists protruding from the United States. It is important to note that this action does not harm or effect the state of research in the US, because as discussed in the second paragraph, the researchers have already been generously compensated. Therefore, in this case the happiness of the thousands of Brazilians greatly out ways the harm done to a few executives, as proven by the workable ethical theories of Kantianism and Act Utilitarianism.
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