Intellectual property and the pandemic

9 February, 2021 · News> Global situation

The No profit on the pandemic campaign is spreading an important message throughout Europe: the intellectual property of pharmaceutical companies is a barrier in the way of halting Covid’s spread. Unfortunately, the reasoning is at the very least incomplete and the means unproductive. But it is worth a discussion.

Where does intellectual property come from?

Jerónimo de Ayanz’s steam engine used to pump water out of the mines during the 17th century.

The inventions that served as a springboard for the expansion of capitalism were not patented, in fact the steam engine itself or the programmable loom were the results of recycling earlier technologies.

It can be argued that the most famous and genuine invention of youthful capitalism, Whitney’s cotton gin, which made it possible to turn cotton into a cheap fabric and mass-produce hygienic textiles for workers, was one of the first patented inventions. However, historians agree that if it succeeded and made the textile revolution possible, it was precisely because, despite Whitney’s vigilance, the U.S. patent law of the time did not allow him to limit its use to those who paid him. Only at the end of his life, when the machine was already an industrial standard, the law was reformed and Whitney was able to earn some income, albeit a modest one. The American bourgeoisie was convinced that, although it accepted the idea of inventions generating rents for their authors, these could not become a brake on the expansion of the technical improvements stimulating the growth of national capital.

In reality the generalization and development of intellectual property is a late phenomenon within the system itself. As all specialized historians remind us, the free trader bourgeoisie of the British expansion – the strongest moment of youthful capitalism – was on the point of putting an end to intellectual property between 1850 and 1852, as it was criticized as a form of monopoly and a brake on the development of capital itself. The controversy was settled with a reform that in practice deprived the patentee of the ability to prevent the use of his invention. Something similar happened in France with the reforms of Napoleon III. The Netherlands, another cradle of capitalism, which had established a lax patent system in 1817, simply abolished it in 1869. It would not re-impose it until 1912. Switzerland would only incorporate it into its legislation in 1907.

All decadent modes of production share quite a few things in common. They commonly react to class struggle and the development of internal contradictions by expanding the state; they all force an agonizing growth of their own productive frontiers; they all exacerbate their characteristic forms of property in an attempt at final entrenchment; they all suffer particular forms of militarism; and they all have an increasingly predatory relationship both to the exploited classes and to the conquered territories and their resources. And, in one way or another, all these common features concur to turn infectious outbreaks into pandemics of systemic scale.

Pandemic and civilizational crisis

Another era begins then, imperialism, in which the patent system takes on a new meaning. In a capitalism that has come to embrace monopolies, the state centralizes innovation, submits it to the general interests of national capital and, in the process, turns it into a financial asset. The logic expands even towards cultural works and creations, fundamental ideological tools for a ruling class that, after the Franco-Prussian war and the crushing of the Paris Commune, sets society on the road to a world imperialist war. In 1886 the French copyright law is enacted, in 1898 the SGAE is founded in Spain.

But the development and shielding of the patent system will be associated above all with the rise of militarism: in the midst of the chemical revolution and the wireless telegraphy one – fundamental to the new type of warfare that was to come – trade warfare would merge with the arms race and take the form of a patent war. This is the era of Marconi and the Deutschland Incident. The era when state espionage services become permanent during peacetime and focus on the capture of inventions useful for their industrial-military development.

The pandemic and intellectual property

From the first moment of the pandemic, intellectual property has played a role against universal needs.

1 During the development phase, pharmaceutical companies gave priority to new technologies that likely to become less successful yet were potentially more lucrative. They took advantage of the special treatment provided by governments for vaccine research to try to give a push to research on new patentable methodologies based on viral vectors instead of using conventional methods. In other words, confident that the scale of short-term sales, guaranteed by macro-contracts with the states, would make them profitable in record time, they have taken greater risks of error because the premium, the patent, recommended it. From the point of view of investment profitability and the ability to attract capital, it was the advisable thing to do. But not from the point of view of universal needs, which would probably have recommended opting for obtaining a vaccine by traditional methods with a higher probability of success.

Vaccine patentability has meant riskier developments that are less resilient against new variants, using lower production capacity than available, and making vaccination nearly impossible in regions of financially weaker states. Overall: hundreds of thousands of preventable deaths and the path for the disease to develop more aggressive variants.

2 In the production phase the patent has acted like any monopoly: it has reduced the produced output. Each company and each national capital involved, starting with Germany, has seen the opportunity to raise capital to build their company’s factories on its territory. Result: wasted productive capacity and delays in vaccination.

3 During the distribution stage the result is proving no less galling. First, the inability to produce enough vaccine shots has restricted distribution and favored the emergence of more aggressive variants, which reduce the effectiveness of the developed vaccines themselves. But if the artificially augmented shortages caused by the restriction of production were not enough, the patent monopoly allows pharmaceutical companies to fix prices. As a result, countries with weaker states such as South Africa have to pay 2.5 times more per dose… not to mention the expensive investment needed in order to preserve the cold chain during vaccinations for health systems that are more than fragile. Result: patents and the business logic linked to it, push towards the abandonment of the financially weaker states and thus not only cost thousands of lives in the immediate term, but also create the breeding ground for an infinite appearance of variants.

Summarizing: Vaccine patentability has meant development of riskier and less resilient vaccines against new variants, using less production capacity than is available, and making vaccination almost impossible in regions of financially weaker states. Overall: hundreds of thousands of preventable deaths and the path for the disease to develop more aggressive variants.

The pitfalls of the No Profit On Pandemic

1 The campaign criticizes vaccine patentability in a lukewarm way. In fact it does not even propose to overturn it, let alone abolish it across the board. Rather, it seems to hint at a temporary suspension with intervention of production by the European Union at a fixed price, such as the one used as a threat against AstraZeneca by the European Commission or the one proposed by Tsipras.

2 Actually one need only look at the who we are page in order to understand what is at issue here. The European political and social apparatus refuses to undertake really useful lockdowns because it fears that their economic impact on the petty bourgeoisie will end up setting in motion a financial crisis. So without refusing to give priority to investments over human lives, they redouble their bet on vaccination, as if it were an alternative and not a complementary action. Any strategy aimed at minimizing the cost of the pandemic in lives would rely on stopping the massacre through lockdowns and vaccinating, not choosing between the two.

The campaign doesn’t dare to demand the release of the vaccine patent, takes for granted that no lockdowns will be implemented and legitimizes the EU in a game that will not universalize access to the vaccine but will serve the imperialistic machinations of the Commission

3 By focusing on the vaccine they detect, of course, that the patent is a hindrance to their major interest. Which obviously has nothing humanitarian about it. And only then they think about how to save their goal… but without questioning the aberration that intellectual property in general implies. Needless to say: the ever-present imperialist interests of the EU are not going to be called into question.

Because, although the petition is dressed up as universal, it is made focused on the European Union. The same EU that the first step it took in its battle against the British AstraZeneca was to create a mechanism to prevent the export of vaccines, and which continually promises that Europeans come first. In other words, what it wants is to restore normal production as soon as possible in its territory and only then give some anecdotal – and not free – aid to other states. The temporary intervention of the vaccine would therefore have its effect limited to the EU, would be subordinated to imperialist interests in case it was necessary to apply it outside of the EU and would dubiously have an impact in favor of universal access to vaccination.

4 If all this waffling in which what is left unsaid is even more important than what is said were not enough, the means of the campaign – a citizen petition – are synonymous with inconsistency. If they manage to mobilize one million signatures – the minimum for this type of initiative to be legally valid – they will have achieved a trump card for the Commission to negotiate with the pharmaceutical companies without changing anything. But if they fail to do so, any questioning of the barbarity produced by patents will be shamelessly cornered over the next few years and the intellectual property lobbyists – who have not stopped winning victories in Parliament and the Commission over the last twenty years – will be legitimized for a new offensive.

To sum up: The campaign does not dare to demand the release of the vaccine patent, takes it for granted that no lockdowns will be implemented, and legitimizes the EU in a game that will not universalize access to the vaccine but will serve the imperialistic machinations of the European Commission. And yet, the opportunity to talk about patents and intellectual property is good and welcome. Two things that represent well the deformed, grotesque, anti-historical and anti-human character that the institutions of the system have taken. They will go down with it. But they will not do so on the basis of half-baked measures or petitions to the Brussels network.

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