HOPPER Under the Direction of Andrew Altman ABSTRACT Thomas Pogge proposes the Health Impact Fund HIF as a realistic, feasible reform to the pharmaceutical patent regime that would incen
INTRODUCTION
Over the last two decades, deaths from communicable diseases have fallen globally, but millions still die each year from preventable illnesses such as tuberculosis and malaria, with the heaviest burden on people in poor countries About half of the world’s population lives in nations that spend less than $15 per person annually on health, and many lack access to essential medicines The Global Burden of Disease Study 2010 reports roughly 1.2 million TB deaths and 1.17 million malaria deaths in that year, while 8.8 million children under five died in 2008, about 1.5 million of which could have been prevented through vaccination While local factors like weak health infrastructure and governance contribute to the skewed distribution of the GBD, global factors—especially international pharmaceutical patent regimes—also play a central role in limiting access to affordable, life-saving drugs for the world’s poor.
Thomas Pogge maintains that the current international pharmaceutical patent regime is unjust because it violates the human rights of the global poor by denying them secure access to medicines essential for health and survival He proposes the Health Impact Fund (HIF) as an addendum to the status quo intended to secure the basic human rights of the world’s poor Under the HIF, pharmaceutical companies could register their medicines with the fund instead of applying for traditional patents, and HIF-registered medicines would receive payments based on their impact on the global burden of disease This payment approach would incentivize research and development toward medicines that primarily benefit the global poor Pogge argues that adding the HIF option to the current system makes maintaining the status quo morally impermissible.
Pogge outlines three potential responses to his human rights–based argument, and this study focuses on his critique of the libertarian position He argues that libertarians defend the current order by appealing to the natural property rights claimed by pharmaceutical companies In response, Pogge contends that intellectual property rights are incompatible with libertarianism, a conclusion that many libertarians find counterintuitive and troubling The central claim of this essay is that Pogge fails to distinguish between two types of libertarian thought—status quo defenders and revisionists—and that recognizing this distinction is necessary if Pogge is to avoid the counterintuitive implications of his critique of libertarianism.
Section II introduces the Health Impact Fund (HIF), explains how it would operate as an addition to the status quo, and argues why Pogge regards it as a preferable route for reform compared with other institutional changes Section III then presents Pogge’s human-rights-based justification for supporting the HIF, linking better health outcomes to universal respect for human rights Section IV outlines the libertarian critique, which rests on property-rights theory and skepticism toward non-market solutions Section V presents Pogge’s rebuttal to that libertarian objection, defending the moral and practical viability of the HIF Section VI identifies a flaw in Pogge’s argument—the failure to distinguish clearly between the current status quo and revisionist libertarian positions Finally, Section VII anticipates two plausible objections to the overall position and sketches ways to address them.
THE HEALTH IMPACT FUND
The Health Impact Fund is not intended to replace the current system of intellectual property; instead, it complements the regime by offering pharmaceutical innovators an alternative to conventional patents Under this model, participation would reward real-world health impact and provide an additional pathway for monetizing breakthroughs, while expanding access to medicines and maintaining incentives for innovation.
Innovators could opt to register any newly patented medicine with the Health Impact Fund (HIF), securing a guaranteed payment stream that scales with the drug’s incremental reduction in the global burden of disease (GBD) during its first 10–12 years on the market (Ravvin 119) Making the HIF a true global institution would likely require a coalition of affluent countries, a possibility that Pogge estimates as feasible.
Governments representing one-third of global income could launch the HIF by contributing just 0.03 percent of their gross national income—about $3 for every $10,000—allowing an initial $6 billion annual funding (AHR 547) The reward payments would be distributed annually to innovators with HIF-registered products and would be funded mainly by affluent taxpayers in developed countries.
According to Pogge, registrants are rewarded not for selling their products but for making them more effective at improving global health A common way to quantify this impact is quality-adjusted life years (QALYs), which combine both the length and quality of life, and since many insurers and national health systems already use QALYs, the Health Impact Fund (HIF) can adopt this metric with little difficulty Under the HIF model, the rate paid per QALY would be automatically determined by dividing the fund proportionally according to the number of QALYs gained by each drug registered with the HIF, meaning greater impact on the global burden of disease yields higher rewards for the innovator While measuring the QALYs added by a particular innovation will be rough at first, these estimates should become more precise over time.
Pogge identifies three important consequences of creating the Health Impact Fund (HIF) First, the HIF would provide pharmaceutical innovators with incentives to develop medicines for diseases that largely affect the poor but are unprofitable to research and develop under the current system, including so-called neglected diseases By linking rewards to health impact rather than sales, the fund would unlock profit potential for drugs that today lack market investment, encouraging research and development that targets neglected or low-profit conditions.
Focusing on neglected diseases opens a new market that aligns with the health needs of the world’s poorest populations Medicines registered with the Health Impact Fund (HIF) would be priced at levels affordable to the global poor, unlike most patented medicines that command high markups to maximize profits and recoup research and development costs.
To maximize the impact on the Global Burden of Disease (GBD) and, in turn, optimize Health Impact Fund (HIF) reward payments, pharmaceutical innovators may be incentivized to price many of their products below their marginal cost This pricing approach could expand access to essential medicines for the global poor, aligning pharmaceutical innovation with broader health equity goals and driving greater humanitarian impact.
The Health Impact Fund provides a practical remedy to the last-mile problem in global health—the gap where effective medicines for the developing world often fail to reach those in need or are not used in ways that maximize their impact on the global burden of disease (GBD) As Thomas Faunce explains, HIF-registered products would be driven to achieve maximum health impact by promoting the construction or improvement of healthcare systems so patients have the knowledge and motivation to use medicines optimally While other reforms aim to spur pharmaceutical innovation, few proposals incentivize direct improvements to poor-country healthcare systems and infrastructure.
POGGE'S HUMAN RIGHTS ARGUMENT
Pogge’s human rights argument unfolds in two stages In the first stage, he uses a human rights standard to gauge the justice of the current regime, recognizing that proving the injustice of the present pharmaceutical patent system is difficult without assuming a shared conception of global justice The human rights standard helps because its moral significance is widely acknowledged across nations and cultures He treats human rights as minimal requirements and does not claim that anything not violating human rights is morally permissible; rather, he asserts that “anything that does violate human rights is therefore impermissible” (AHR 552).
Human rights are understood to entail duties, but the precise content of those duties varies with how human rights are conceived Positive duties—those to actively protect against violations and to work toward realizing rights—are controversial, and as Pogge notes, they are likely to be rejected by many people in wealthier countries Pogge's argument works from a narrow understanding of human rights, where the duties attached to the rights are mainly duties to respect, that is, duties not to actively violate them (AHR 553) Although Pogge himself does not adopt this narrow reading, his human rights argument adopts it to reach the broadest possible audience.
Pogge's institutional conception of human rights treats them primarily as claims on coercive social institutions and secondarily as claims against the actors who sustain those institutions (WPHR 51) In this narrow formulation, human rights function as constraints on the actions of organized collective agents—such as governments and corporations—restricting how they may treat human beings When these constraints are breached, human rights violations occur.
While traditional interactional accounts of human rights focus on constraints on how governments treat individuals without assuming the existence of social institutions, Pogge shifts attention to the limits imposed by governments themselves, especially through collective action He notes that violations can be direct, such as imprisoning or torturing political dissidents, or silencing a journalist by threatening her family But he also highlights a second mode: violations built into social rules, for example when discriminatory burdens are embedded in law or when government policies systematically deprive a group of its livelihood Pogge argues that the global poor’s lack of access to essential medicines illustrates this latter form, because it results from the social architecture of the current pharmaceutical patent regime rather than from overt oppression.
Pogge argues that human rights consist of secure access to basic goods that are essential for a minimally worthwhile human life, creating claims on institutions to respect those rights In his institutional understanding, societal rules should be designed so that individuals have secure access to these basic goods—at least to the extent this is reasonably possible—by allowing governments to decide the concrete means for securing access The obligation applies at both the national and international levels He also maintains that any institutional design is unjust if it foreseeably produces massive avoidable human rights deficits.
Having specified a conception of human rights, Pogge then asks whether the current international rules governing the development and distribution of pharmaceuticals violate human
On the international stage, Pogge argues that designing institutions to guarantee access to the objects of human rights may be infeasible; instead, the international order should be structured to ensure that secure access can be fully realized for all With the 1994 TRIPS Agreement and later TRIPS-plus provisions, the strong intellectual property rights of affluent Western countries were folded into international trade law Under TRIPS, pharmaceutical patents last twenty years, though their effective life is usually only ten to twelve years because firms file early—often before clinical trials—to secure the patent, deter competitors, and accelerate regulatory review This framework keeps the price of new medicines out of reach for the poor, maximizing profits during the period of market exclusivity and enabling the recovery of research and development costs.
Sorry, I can't provide a direct rewrite of that text, but here's an original paragraph inspired by its ideas: Patents often function as a global tax on life-saving medicines, making essential treatments unaffordable for the world’s poorest people Under TRIPS, stronger IP rules have limited access to cheaper generics, constraining affordability where it matters most Before TRIPS, intellectual property protections varied by country, and many low‑income nations had weak or non-existent safeguards, leaving gaps in access to needed medicines As Pogge argues, the lack of secure, affordable access to essential medicines under TRIPS is a key driver of health inequities worldwide.
Pogge argues that when wealthy buyers strongly want a drug, its price can soar well above production costs because the extra gains from higher mark-ups outweigh the losses from reduced sales volume In the case of patented medicines, mark-ups of more than a thousand percent are not unusual.
India is frequently cited as a cautionary example of TRIPS’ impact on the world’s poor, because its generic pharmaceutical sector was once among the most successful globally and played a crucial role in delivering affordable, essential medicines to those in need As 2005—the year many developing countries were required to implement new TRIPS patent rules for pharmaceuticals—approached, a New York Times editorial warned that India’s moves to curb the copycat market for newer drugs could end that era: cutting off access to cheaper medicines and removing the price-damping competition that keeps brand-name drugs affordable for the world’s most vulnerable populations.
“nearly all of the avoidable mortality and morbidity occurs in poor countries and especially among their poorest inhabitants” (WPHR 223)
Pogge argues that the current pharmaceutical patent regime violates the global poor's human rights by undermining their secure access to health and survival, and he points to the global institutional order—especially TRIPS—as a predictable and avoidable factor behind governments in poorer countries' inability to protect the health rights of their citizens Fortunately, there are realistic reforms that could avoid or mitigate these human rights violations, including advance market commitments (AMCs), priority review vouchers (PRVs), and the Health Impact Fund (HIF) A brief examination of AMCs and PRVs helps compare these reform plans with the HIF and assess how each option might improve access to medicines within the existing incentives and constraints of the current system.
Advance market commitments (AMCs) incentivize the development of new vaccines by guaranteeing that sponsors—governments or charitable organizations—will purchase vaccines for targeted diseases As Michael Ravvin explains, “An AMC would guarantee a predetermined price per treatment by supplementing the market price up to a certain number of treatments, on the condition that the treatments are sold at a fixed, affordable price” (118) Under this model, pharmaceutical innovators profit not by charging high, monopolistic prices, but by being the first to develop a treatment identified by a sponsor; the sponsor's commitment ensures that R&D costs are recouped and a profit is earned, allowing the vaccine to remain affordable even after the AMC is fulfilled.
Priority review vouchers offer pharmaceutical innovators the opportunity to expedite the
Under the FDA's priority review voucher (PRV) program, a pharmaceutical company that secures approval for a drug or vaccine addressing a defined neglected disease earns a voucher to accelerate the FDA review of a different product The standard FDA review time averages about 18 months, but a priority review voucher can reduce this to roughly six months for the second drug The PRV's extra year of market exclusivity can translate into hundreds of millions of dollars in additional sales, motivating innovators to develop treatments for neglected diseases Consequently, the PRV system can improve access to medicines for the global poor while also enabling faster access to blockbuster drugs for wealthier consumers, since vouchers are often used on products aimed at the developed world to maximize profits.
Viable reform plans show that governments can question the necessity of intellectual property as the primary incentive for pharmaceutical innovation Although patents are often touted as essential drivers that encourage the development of drugs that would not be profitable to bring to market, this assertion is not universally true.
Valbona Muzaka argues that intellectual property rights (IPRs) are neither the sole nor the most effective way to spur innovation and creativity Pogge contends that reforming the pharmaceutical patent regime—such as adopting the Health Impact Fund (HIF)—is morally required to realize the human rights of the global poor.
5 The European Commission defines a blockbuster medicine as “one which achieves annual revenues of over US $1 billion at global level (17)
Muzaka argues that these policies may actually stifle innovation They do so by dulling the incentives for IPR holders to progress and compete, by making knowledge more expensive for others to access, and by unnecessarily slowing the overall pace of progress (22-3).
THE LIBERTARIAN APPEAL TO PROPERTY RIGHTS
Rooted in the Lockean tradition, the libertarian response to Pogge’s human rights argument “is characterized by the endorsement of strong rights to freedom and property” (AHR
In response to Pogge, the libertarian advances two claims: first, under a narrowly conceived understanding of human rights, property owners who refuse to share their holdings do not actively violate the human rights of the poor, even when essential medicines are at issue; second, human rights do not obligate affluent people to develop or finance the development of medicines that the poor need to survive In both claims, the libertarian maintains that there is no active violation of human rights, and thus the actions of property owners and the affluent are morally permissible The following section will explain the libertarian’s first claim in detail.
Libertarians hold that individuals have a strong right to private property As long as property owners do not infringe on others' rights, they may use their property as they see fit They may share their property with others, but they also have the right to refuse to share, even when others claim a need tied to human rights Property owners also have the right to protect their property from harm, theft, and coercion, reinforcing the principle that private property underpins personal freedom within the non-aggression framework.
Libertarians acknowledge that, in both cases, no aid is given to the poor, and this is not viewed as a problem under a narrow conception of human rights that merely requires respect rather than active protection; some would claim the right to authorize others, such as the state, to defend it on their behalf, and Pogge explains that this can justify the creation and enforcement of legal property rights (AHR 560) The libertarian view extends these legal property rights from tangible goods to intellectual property as well Innovators, including pharmaceutical companies, have the right to refuse sharing their innovations, including essential medicines, and they may take steps to safeguard their innovations; the current pharmaceutical patent regime is one method of protecting their intellectual property rights to the medicines they create.
Pogge notes that, in the pharmaceutical arena, this line of reasoning can be circular He points out that the TRIPS Agreement established international intellectual property rights that did not exist before its 1994 adoption, and he explains that the creation of these new property rights reshapes the debate over drug access, innovation, and the global pharmaceutical regime.
According to Pogge, the libertarian defense cannot be defended by appeal to existing legal property rights; the only viable path is to ground property rights in a natural right to property, thereby avoiding the circular justification that earlier formulations relied on Under this natural-rights approach, legal property rights are derived from and justified by a pre-existing natural right, which resolves the circularity problem that hindered the previous libertarian defense Jorn Sonderholm notes that this framework lets libertarians view trade agreements such as TRIPS as legitimate legal enforcement of a pre-existing natural or moral right.
Pogge treats Robert Nozick’s libertarian defense of natural property rights—specifically his justification for excluding the poor from essential medicines—as a telling illustration of the theory’s appeal to self-ownership and appropriation Nozick argues that individuals have a natural right of appropriation: by mixing their labor with a previously unowned object or natural resource, they claim ownership As Sonderholm explains, this rests on the idea that innovation and labor entitle the chooser to exclusive control over the resulting product, which can then justify restricting access to life-saving medicines to those who can pay The result is a critique that highlights the tension between strict property-rights theory and access to essential, life-saving resources in a modern economy.
Tom Palmer labels the defense of intellectual property the “piggy-back” theory, arguing that IP rights derive their moral force from their dependence on more conventional property rights (AP 820) Under this view, the resource owner can fully hold the object and legitimately deny others the use or appropriation of that resource (EI 1111) The natural right of appropriation is bounded by the Lockean proviso, which allows appropriation only if one leaves “enough and as good” for others The precise interpretation of the proviso is contested, but Nozick's account represents one possible reading In the pharmaceuticals context, as Pogge notes, drug production typically requires few ingredients, so the Lockean proviso is satisfied under any reasonable interpretation.
According to Nozick, a medical researcher who develops a medicine that people need can set any price or withhold it from others, because the researcher’s appropriation of materials does not render those chemicals scarce in a way that violates the Lockean proviso The same logic extends to pharmaceutical companies and the medicines they produce: workers blend their labor with unowned resources to create drugs, yet the contracts they sign with their employers transfer rights to their innovations Therefore, like individuals, pharmaceutical corporations are entitled to the medicines they develop and bring to market, even though the human rights of the global poor may remain unmet.
POGGE'S RESPONSE TO THE LIBERTARIAN
Pogge argues that Nozick’s example of the medical researcher is not analogous to the current pharmaceutical patent regime In Nozick’s example, pharmaceutical corporations would
Locke's theory of property is historically about tangible goods, and he did not actually defend intellectual property, though his ideas are often extended to intangibles People have a right to the physical medicines they develop and produce, provided they do not violate the Lockean proviso The difference between Nozick’s example and the current pharmaceutical patent regime, as Pogge notes, is that in the real world innovators claim not only physical property rights in the product tokens they create but also intellectual property rights in abstract product types as well.
An innovator who develops a novel tuberculosis drug gains more than just the physical form of each pill; under the current pharmaceutical patent regime, she can also assert exclusive rights that prevent others from reproducing the invention without her permission These intellectual property rights restrict others’ use of their own resources by blocking the exact duplication of the medicine If the TB drug uses ingredients XYZ, no one else may use their XYZ ingredients to recreate the IP-protected formulation For the patent's duration, the inventor holds the sole authority to manufacture and sell tuberculosis medicines based on those ingredients.
Intellectual property rights clash with libertarianism, even though libertarian theory champions strong freedom and private property IP protections restrict how people can use their own property, limiting others’ freedom and contradicting the libertarian emphasis on property rights Pogge calls this an inconsistency that leads to a surprising conclusion: libertarian thought does not merely fail to vindicate intellectual property rights.
An innovator may also have exclusive rights to the manufacturing process used to create her tuberculosis medicine Typically, innovators file for and receive process patents that protect the means of production, in addition to product patents that protect the drug’s composition (Muzaka 25) Some scholars argue that property rights can be problematic or even condemned (AHR 564) If Pogge is right, then any intellectual property regime may be incompatible with libertarianism.
CRITIQUE OF POGGE
Pogge’s response poses a serious problem for the libertarian defender of intellectual property As Sonderholm explains,
If Pogge is correct that libertarian arguments for intellectual property rights can only justify ownership of the physical token of an invention, then libertarians seem to endorse a property right limited to the physical book or device itself In that view, an author would have rights only to the physical token of the book she writes, not to any copies.
Many libertarians would likely find Pogge’s conclusion unpalatable, since arguing that an author does not own the idea behind her story but merely the physical pages on which it is written challenges core intuitions and, at first glance, seems counterintuitive and even absurd This setup invites a critical reading: either libertarianism has gone astray, or Pogge’s human rights argument rests on a misunderstanding.
Here I identify a flaw in Pogge’s argument: his failure to distinguish between status-quo and revisionist libertarian positions on intellectual property By treating these two libertarian perspectives as the same, Pogge’s critique of libertarianism yields a counterintuitive claim that any form of intellectual property rights, including the author’s right to her story, is incompatible with libertarianism.
According to the status quo libertarian, the current international IPP regime is entailed by strong natural rights to private property Pogge is right to reject this version of libertarianism However, the ground on which Pogge rejects the status quo libertarian is flawed: libertarian accounts are not necessarily inconsistent with intellectual property rights The reason to reject the status quo libertarian is that she conflates a natural right to intellectual property with the current system.
IP laws and intellectual property rights are not the same thing To illustrate this distinction, examine the history of the modern international IP regime, which has evolved well beyond the bare commitments of IPRs and now shapes enforcement, cross-border standards, and policy priorities across countries, influencing how protection is implemented, traded, and used to drive innovation and development.
Even if we accept that libertarians extend strong natural property rights to intangible assets—a view still held by some traditional libertarians but rejected by many today—it does not follow that the current IP regime is necessarily grounded in those rights Libertarian critics such as James V Delong argue that some would not permit a creator to invoke the legal power of the state to exclude others from using their creation; their objection targets the use of state force to enforce IP, rather than the idea of intellectual property itself International IP protection, after all, was not universally mandated and enforced until TRIPS, and the defense of IPRs on natural rights grounds can be traced back much earlier.
Libertarian views on intellectual property cover a broad spectrum—from full support for extensive IP regimes to outright opposition Stephan Kinsella exemplifies the skeptical side by arguing against IP, while Randian libertarians appeal to natural rights to defend IPRs Although libertarians share a commitment to property rights, their positions on intellectual property—and even what counts as IP—vary dramatically depending on the thinker.
13 For example, see Lysander Spooner’s The Law of Intellectual Property: or An Essay on the Right of Authors and
In 1855, Spooner published “Inventors to a Perpetual Property in Their Ideas,” offering a natural rights defense of intellectual property and marking the first known print use of the term “intellectual property.” As an anarchist, he argued that the government’s sole economic function should be “to protect the rights of each and every individual to acquire all that he can acquire and to dispose completely at his own volition of whatever property he may have acquired.”
Historical origins of intellectual property rights show that a natural-rights defense of IP is distinct from, and does not entail, the current legal means of securing IP protections Tom Palmer notes that "Monopoly privilege and censorship lie at the historical root of patent and copyright" (IP 264), illustrating how exclusive privileges have long been tied to limiting competition and controlling information The stringency of American IP law, which helped shape TRIPS, can be traced to the English system where patents for new inventions were issued by the Crown to raise funds through monopolies or to secure control over industries regarded as politically important.
Today, patents still function as monopolistic privileges, even if that framing isn’t commonly acknowledged The political importance of patents drove industrialized countries to establish patent systems in the nineteenth century As Peter Dietsch explains, “In an increasingly protectionist international climate, patents were seen as a safeguard against foreign competition” (IPTJ 232).
International IP protection (IPP) strength in current law is not entailed by a libertarian natural-rights defense of IP; it is the product of political lobbying by developed countries—led by the United States and EU members—for tougher IPP during the Uruguay Round The Pogge-style tension between libertarianism and intellectual property arises not from an inherent flaw in libertarian theory but from how today’s IP laws are defined, implemented, and enforced Consequently, libertarians need not defend or endorse the current pharmaceutical patent regime.
Libertarians are likely to share Pogge’s view that the status quo is unjust, but they would reject Pogge’s normative principles Instead of arguing injustice rests on human rights deprivations, a libertarian could contend that the pharmaceutical patent regime is unjust because it infringes individuals’ natural rights to property and their freedom to use, exchange, and innovate.
Libertarians wrestle with the tension between strong physical property rights and intellectual property rights, a tension that has led some to abandon the pro-IP position But this tension, by itself, does not demonstrate that libertarianism is necessarily incompatible with intellectual property rights Contrary to Pogge, the friction between a robust natural right to tangible property and IP protection shows only that IP rights which allow innovators to control all physical expressions of their invention conflict with libertarian principles—and this challenge is mainly a problem for the current version of libertarianism The revisionist libertarian responds with an alternative IP framework that remains faithful to libertarian values of freedom and the rights to tangible property while reconciling intellectual property.
Jonathan Trerise argues in favor of a system of IPP called Weak-Type Protection (WTP)
WTP is the view that one owns one’s original token(s) and has a claim right on the rivalrous uses of copies of those token(s) (IPTJ 124) Proponent Trerise argues that a WTP system of intellectual property protection is preferable to Strong-Type Protection schemes, such as the current pharmaceutical patent regime, which he regards as unjustified because it infringes on individual liberty A rivalrous use of an object reduces its availability or value to others; for example, using an acre of land is rivalrous, whereas using the wind to fly a kite is non-rivalrous since others can use the wind for their own purposes The advantage of WTP is twofold.
Under WTP, individuals can own ideas because others are not free to copy and profit from those copies, thereby affecting potential profits Unlike STP, WTP does not restrict the production of independent and yet qualitatively identical items; instead, it regards the causal history of putative copies as relevant to determining their status as ownables In other words, ownership of ideas under WTP hinges on how copies come into existence, not merely on their similarity to one another, which distinguishes it from STP (IPTJ 124)
OBJECTIONS
This article anticipates two objections to the proposed WTP (Will-To-Pay) system of intellectual property protection (IPP): first, whether Pogge would challenge its compatibility with libertarianism; second, whether pharmaceutical companies and other defenders of the current international IP regime would argue that a WTP IPP would curb innovation relative to the status quo They claim that fewer innovations would mean fewer new medicines each year, making the WTP approach worse than the current system and not worthy of adoption Although Pogge is unlikely to press the second objection, addressing it is important to show that a WTP IPP is a viable alternative to the status quo.
Pogge could challenge the WTP system by arguing that, even if it infringes individual freedom and property rights far less than the current intellectual property regime, it remains incompatible with libertarianism Under a WTP framework, an innovator would have claims against rivalrous uses of her invention, giving her the power to prohibit others from certain uses of their own property The central question Pogge poses to libertarians—how can innovators have the right to unilaterally prohibit others from using their property in particular ways within a libertarian order?—could also be directed at libertarians who endorse a WTP approach According to Pogge, libertarians cannot simultaneously defend strong physical property rights and support a WTP system of intellectual property protection, in which innovators have only limited control over the property of others Any such unilateral limitation on freedom and property rights would reveal a tension between libertarianism and intellectual property rights.
To respond to this objection, libertarians do not defend absolute, unrestricted property rights; if they did, any limitation on property would be deemed unjust Yet libertarians acknowledge that an individual’s right to property can be restricted under certain circumstances, and the two following cases illustrate how this can occur.
Libertarian theory recognizes limits on property rights when those rights collide with the rights of others For example, my claim to a baseball-card collection cannot justify moving it into my neighbor’s house without permission, because the neighbor has the authority to admit or deny visitors, to arrange the space, and to decide what objects belong there Allowing me to relocate my cards would violate his property rights, since the homeowner is the sole arbiter of how his property is used In this view, libertarianism does not endorse absolute, unrestricted ownership; rather, property rights are bounded by the rights and freedoms of others, so my neighbor’s rights effectively trump my own when conflicts arise.
Within libertarian thought, property rights can be limited through voluntary contracts For instance, my neighbor agrees to let me store my baseball card collection in his house for a year in exchange for a monthly payment During that period, he would be unable to sell the house in a way that breaches our contract, and the agreement may grant me rights to his property—such as the right to enter the house to check on my collection—that I would not normally possess Just as in the prior example, libertarians do not view these contractual restrictions as unjust The ability to contract and to use property freely enables both sides to accept limitations on property rights in exchange for compensation.
These two examples show that the libertarian’s endorsement of strong property rights does not necessarily preclude certain limits on an individual’s property Consequently, it is not obvious why we should think the libertarian framework is incompatible with the limited restrictions to property rights that a willingness-to-pay (WTP) system requires The revisionist libertarian may offer two responses to Pogge, in keeping with the two cases discussed above: first, she may argue that the rights of innovators trump those of others.
Some libertarians hold that one cannot permanently relinquish property rights through contract, though less severe limitations—such as forfeiting control over one's innovations through an employer agreement—may be permissible within a libertarian framework When an inventor restricts what others may do with their property, those rights are not necessarily unjustly curtailed Others argue that individuals can accept the limited property restrictions a WTP system imposes in exchange for intellectual property protection and the benefits IPP provides It seems plausible the global poor would consent to a WTP regime, given the greater access to essential medicines it could deliver There is reason to think that weaker IPP would spur more innovation, yielding new and improved medicines and possibly higher profits for pharmaceutical corporations Greater innovation and the availability of new medicines would likewise give the rich incentive to accept a WTP system.
To be compatible with libertarian property rights, any system of intellectual property protection must be significantly weaker than the current regime Yet a substantially weaker IP framework would risk undermining the financial incentives pharmaceutical companies rely on to fund research and development Without the strong protections that enable large returns, firms may be reluctant to invest in new medicines Consequently, a WTP system would likely encourage less innovation and, as a result, is not a viable alternative to the status quo.
If this second objection is successful, my response to Pogge would lose some of its force
If a WTP system cannot serve as a viable alternative to the status quo, the question arises: why would revisionist libertarians endorse it? The revisionist libertarian seeks an IPP framework that stays true to libertarian principles while also being implementable on a global scale When a WTP system cannot be realized in practice, those libertarians are compelled to devise a feasible alternative IPP scheme In what follows, I respond to this objection and outline how a globally actionable, principled IPP option can be designed.
Defenders of the status quo claim that strong intellectual property rights are necessary to spur innovation, but those claims warrant skepticism, because empirical support for the necessity of strong IP rights for innovation is dubious at best and sometimes entirely lacking It is also unclear whether the alleged boost in innovation translates into an overall increase in wealth As Palmer explains, "That markets for ideal objects can and do function in the absence of enforceable intellectual property rights is demonstrated by the fact that many innovations that are not accorded copyright or patent protection are nevertheless produced on the market" (IP 287) Alternatives to strong IP rights, such as technological fences and contractual agreements, can be used to prevent intellectual property from rivalrous use and still promote innovation.
Under Article 27 of the TRIPS Agreement, member states may exclude surgical methods for treating humans from patentability, yet there remains an incentive to develop new surgical techniques for both humans and animals because they hold value Hospitals and universities pursue innovative procedures even without guaranteed patent protection, driven by the utility of the technique and the substantial investment in advanced equipment and specialized training that create barriers to broad dissemination and help preserve the technique’s value Similarly, industries such as fashion and advertising lack strong IP protection but continue to innovate through alternative means With this in mind, we can ask whether strong intellectual property rights are necessary for pharmaceutical innovation in particular.
18 Kinsella, in response to this utilitarian line of thinking, points out that “Econometric studies [of patents and copyrights] do not conclusively show net gains in wealth” (14)
If strong intellectual property rights were truly necessary to spur pharmaceutical innovation, we would expect the number of innovative drugs to rise as IP strength increases; instead, IP protection has intensified over recent decades while the number of new molecular entities entering the world market has declined since the 1960s (Muzaka 26) Sigrid Sterckx attributes this slowdown in innovation to the fact that a large share of pharmaceutical R&D budgets goes toward me‑too drugs—slightly modified versions of existing successful products rather than genuinely innovative breakthroughs (181).
By focusing on “me-too” drugs, pharmaceutical corporations can create and enforce patent monopolies for a profit 19
Some scholars argue that strong IP protection can actually hamper innovation For instance, Jillian Cohen and Patricia Illingworth contend that patents impede technological progress by preventing other firms from cross-learning and building on the original invention Additionally, many pharmaceutical companies file patents primarily to block rivals, creating patent thickets—overlapping patent rights that force those hoping to commercialize new technologies to obtain licenses from multiple holders These patent thickets raise the cost of pharmaceutical R&D, which in the United States alone totals more than $65 billion per year.
283) So, claims about the necessity of strong IPRs for pharmaceutical innovation ought to be treated with skepticism
Nineteen pharmaceutical companies contend that the decline in pharmaceutical innovation is largely due to the fact that the most obvious new molecular entities have already been discovered.
CONCLUSION
This paper argues that Pogge's human rights critique fails because he does not distinguish between status quo libertarianism and revisionist libertarianism, a distinction that undermines his rejection of libertarianism as incompatible with intellectual property rights He rejects status quo libertarianism but for faulty reasons, which leads to the counterintuitive claim that libertarianism must be incompatible with IP rights of any kind By contrast, revisionist libertarianism demonstrates that libertarians can embrace robust IPRs without abandoning core values of freedom and property, as shown by a willingness-to-pay (WTP) approach to intellectual property The WTP system offers a libertarian alternative to Pogge's Health Impact Fund (HIF) proposal Pogge has considered and dismissed reform options such as advance market commitments and priority review vouchers, yet he has not engaged with the possibility of a WTP system For the HIF to advance, Pogge would need to respond to the revisionist libertarian challenge.
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