Rent-seeking as mass murder
The row over vaccine patent waivers reveals the inhuman logic of intellectual property, argues Paul Demarty
As a new wave of Covid-19 rips through many countries, notably India, Argentina and Brazil, it is disconcerting to look on from the vantage point of a country where things are - for now - well under control, with over half the population at least partly vaccinated.
With scientific opinion - and plain common sense - united in the certainty that Britain and the few other rich countries which have had a successful vaccination programme still cannot protect themselves so long as some of the most populous countries on earth are effectively giant Petri dishes for the emergence of new variants of the virus, scrutiny must rightly fall on Britain’s failure to aid the global effort adequately. And, while much of the discussion focuses on how many spare vaccine shots are ‘donated’, there is a far more serious moral failure on display in the present situation.
That is the matter of the patents on the various vaccines so far developed. Many countries in the global south have pleaded for the patents to be waived temporarily; but the response - from Britain and especially the European Union, where most of the vaccines were developed - has been foot-dragging at best and stonewalling at worst. It need hardly be stressed that every minute’s delay means more fatalities; so the interference of pharmaceutical companies and their ‘friends’ in government amounts to mass murder.
It is not only the pharmaceutical firms who have a hand in this sordid saga. In some ways it began last year, when researchers at Oxford University declared their intention to freely release their vaccine formula, in the hope that it would be made more widely available and also feed into further research. Bill Gates decided to talk them out of it, and thus was born the ‘partnership’ with AstraZeneca. On the face of it this was a baffling act, as if Gates had decided suddenly to pack in his smug philanthropy altogether and resolved, like Milton’s Satan, that “to do aught good never will be our task, but ever to do ill our sole delight”.
In the case of another actor in this drama, we find further prima facie evidence of radical evil. The media industry - as soon as the Biden administration let it be known that a patent waiver was on the table - dispatched hordes of furious lobbyists to Washington to muddy the waters even further. Sure, it would be nice to save a few lives in India, Brazil and wherever else; but we could not risk the far greater evil of people manufacturing C-3PO action figures without paying the proper licensing fees, or singing ‘Happy birthday’ unmolested by Warner Music’s lawyers.1
Lest it be thought that we are overselling this cannibalistic reasoning, let us quote Chris Coons, the Democratic senator from Delaware. According to The Washington Post, Coons, “a close ally of Biden, has even invoked the January 6 storming of the Capitol among the reasons to protect patents, saying it revealed the need to unite the country.” The paper quotes Coons as saying:
All of this is a wake-up call for us that we need to have another Sputnik-like moment of reinvestment in American innovation and competitiveness … A central part of being successful in this competition is continuing with our constitutionally created protected-property right of a patent.2
The reference to Sputnik presumably made more sense in context - even Chris Coons must be aware that that was the Russians: we guess that he has in mind some bromide about America’s triumphs being borne from adversity. There is no Apollo without Sputnik.
His philosophy, then, makes a certain amount of logical sense: it is essentially a reformulation of the ideas of the philosopher, Leo Strauss, who was a major influence on the original neoconservatives, and very much the same sort of thing we are getting from Biden, who ominously sells his major policies as a question of ‘competition’ with China. If it is coherent, however, it is still a moral scandal: the logic is that Indians must pay for America’s national healing with their blood.
It is also straightforwardly absurd. Patents only make sense in the context of private industry; yet the very case Coons mentions as his model - the space race - had as its actors rival states, and only incidentally involved private companies as manufacturing contractors and so on. If Apollo 11 is the thing to emulate, then the sanctity of patents would be wholly incidental; if top Nasa people had complained to John F Kennedy or Lyndon Johnson that patent litigation was interfering with the progress towards the moon landing, then we rather suspect that the offending patent would be dispatched to oblivion with a flick of the presidential pen.
The story of the Covid vaccines, meanwhile, illustrates the opposite of Coons’s point: far from being a ‘natural’ part of the patriotic furniture - a way to ensure reward for taking risks on research and development - the patent windfall demanded by Pfizer, Moderna and so forth is a strenuously artificial attempt to get paid twice for the same piece of work. Donald Trump’s administration, just like the Tory government in this country, ‘incentivised’ the production of vaccines - not by the promise of future profits, but by guaranteed payments, even for vaccines that did not in the end make the cut. The Trump administration ploughed $10 billion into the coffers of big pharma. Nobody who truly believed in the power of patent protections to incentivise production would have done so - after all, a successful vaccine would have no shortage of buyers. The scientific marvels undertaken by the researchers could only be done so quickly because some of the ideas involved had long been floating around, but somehow no pharma corporation had ever found the money to invest in them.
This is, in the end, because vaccines are not where the profit is in ‘normal’ times. This is best illustrated with another unconscionable crime of the pharmaceutical industry that began, likewise, with the manipulation of the patent system. Purdue, a smaller pharma outfit in the US, patented a new kind of slow-release painkiller, which was marketed as oxycodone. Thus began the notorious opioid addiction crisis. There are two reasons why this scheme made for such great business: the new patent gave them a monopoly; and it could be marketed as a means of long-term pain management, which meant a regular recurring income.
The trouble with vaccines is that, even for the flu, you only need one a year at most. There is also uncertainty about the long-term effectiveness of the Covid vaccines - hence the desperation to get as much money out of them as possible, while the going is good. For the pharma executives, as for the masses of Brazil, India and the whole global south, the clock is ticking. It has worked out well for the former so far, as is illustrated by the case of Pfizer, which pocketed a little under $2 billion from Trump. CEO Albert Bourla, the same day that he announced the success of the trial of his company’s vaccine, pocketed $5.6 million from selling Pfizer stock after the price bounced on the news, and his total pay for 2020 amounted to $21 million. This is the sort of windfall that rather tests one’s opposition to the death penalty.
We previously ‘explained’ all this by simply declaring the protagonists’ evil, but of course we cannot be satisfied with that. Bill Gates is the pertinent case - what the hell is it to him if AstraZeneca gets to manufacture the vaccine exclusively or not? His own explanation - that making vaccines is very complicated and you need the expertise of a reliable firm - is risible, not because the premises are false, exactly, but because it flatly ignores the fact that the global south has plenty of manufacturing capacity for generic medicines already. Like the old-fashioned colonialist he is, he seems to have a stereotype of subsistence farmers boiling vaccines up in their shacks.
What is truly at issue is the principle of the thing - Coons, on that point, is right. Whatever Gates’s personal holdings in biotech and pharma companies, it is irrefutable that a large part of his personal wealth came from entering into monopolistic deals with computer hardware manufacturers and, by the same token, skilful manipulation of the patent-licensing system. Likewise, Disney and the other media corporations taking an interest only make money because they have the exclusive rights to recycle and imitate their ‘own’ dreck year in, year out - much of which is accumulated through endless mergers and acquisitions.
Once we have suspended patents in this one case, of course, the question is begged: why not in others? Stopping Covid is obviously necessary, and therefore obstructionism rightly appears as morally corrupt. But why, then, would we not also suspend patents in the fight against malaria (which has occupied so much of Gates’s time), or Aids, which claimed many more lives than necessary in sub-Saharan Africa because of big pharma rent-seeking in the 1990s and 2000s?
But then, if companies doing work of life-and-death importance have no moral right to intellectual property, why on earth is it acceptable to enforce such rights further up Maslow’s hierarchy of needs? What, really, is the injustice in people other than Disney being permitted to create Star wars content? (Especially given that most copyright profits, including Star wars, come merely from buying up and milking others’ ideas …)
There is an important contradiction involved here. As capitalism develops, and technology revolutionises the forces of production, an increasingly important input into the productive process is information. The physical machines themselves, large and small, are commoditised. There is only so much innovation possible in the sewing machine, but we still need clothes and shoes, and so capitalist firms must compete to meet those needs. They do so in part by optimising information - industrial technique, logistical organisation and so on.
Yet unlike a physical machine or raw material, which cannot be duplicated without having your own machine-tool factory or your own mine, information is trivially copied. Instructions for the manufacture and storage of a vaccine will take up a few kilobytes of data: it is no more work for an internet-connected device to copy such a thing than it is to receive an SMS message or email. As the old techno-utopian slogan puts it, ‘Information wants to be free’. When something ‘wants’ to be free, making it unfree is reduced to a mere matter of force. It comes down to the intimidation of those who would copy - in the current context, via the World Trade Organisation and other institutions of US imperial supremacy. By means of strenuous legal artifice, the achievements of scientific progress, of cultural ingenuity, are transformed into a source of monopolistic rents.
This is, in fact, true of ‘physical’ commodities too - but it is not so obvious, since scarcity looms larger over them, and thus it ‘makes sense’, assuming we consider private property to be natural, that people should have legal recourse to defend ‘their stuff’. The fundamental objection to that ‘common sense’ in fact predates Marxism - which is that a product is in fact the culmination of a great diversity of physical processes, of many acts of human labour and of nature too. Yet, outside of petty bourgeois enterprises, the people who profit thereby are precisely the people who do not contribute meaningfully; the people who have happened upon enough wealth to move the rest of us around like chess pieces. We are sure Pfizer’s biochemists are well-compensated, but not to the tune of $21 million.
Thus the classic phrase of Marx about the revolution: “the expropriation of the expropriators”. In other words, rent-seeking is not a distortion of capitalism, as bourgeois economists think, but a good enough image of its essence. Overthrowing capitalism involves taking back what was stolen from us. There is surely no more repellent example of such theft than the abandonment of billions of people to the whims of a deadly virus.