11 - “Thou Shalt Not Steal”: The Morality of Compulsory Licensing of Pharmaceutical Patents

Summary

This chapter examines the debate over the right and ability of countries to grant compulsory licenses on patented pharmaceutical products, including biologic drugs produced in living organisms, as a means of ensuring access to medicines. Opponents of such measures sometimes label them as “theft.” This chapter contemplates the validity of such theft rhetoric from an unconventional perspective: that of biblical teachings on what it means to steal. After an introduction to the issue, Part II describes the use of theft rhetoric in relation to intellectual property infringement broadly and drug patent compulsory licenses in particular. Part III challenges the contention, suggested by theft rhetoric, that compulsory licenses are morally wrong as a form of stealing, by considering the meaning of theft in the context of its Judeo-Christian origins. Part IV considers the cogency of the accusation that the issuance of compulsory licenses in developing countries destroys pharmaceutical company innovation incentives. Part V concludes that expanding the definition of theft to include, as the Bible does, the possibility that a property owner may be stealing from the poor, can help us to properly evaluate the morality of drug patent compulsory licenses.