Introduction
The manufacturing and distribution of life-saving medication across the globe is regulated by the current overarching capitalist global economic system, which places a premium on the maximization of profits.Footnote 1 This economic system is in turn protected and preserved by a system of international legal regimes. The Paris Convention of 1883Footnote 2 marked the first critical step in the international legal protection of intellectual property (IP), broadly conceived to include “patents, trademarks, industrial designs, utility models [a kind of ‘small-scale patent’ provided for by the laws of some countries], service marks, geographical indications and the repression of unfair competition”.Footnote 3
The overarching principle in the legal protection of IP is that innovation should be protected and rewarded by granting exclusive ownership of a creation or invention to its creator or inventor, from which the creator or inventor can, in turn, profit.Footnote 4 This underlying premise is fair and justified at face value as it guarantees that one can be both recognized for one's creations and inventions, and rewarded for the labour that went into them.Footnote 5 As such, baked into the ideology for the creation of exclusivity through IP, is implied prestige from the recognition of the creator or inventor and their work, and also protection of their right to profit from their creation, invention or innovation.Footnote 6 Importantly, they also have the right to profit exclusively or as they so choose.Footnote 7 This international framework, entrenched by the Agreement on Trade-Related Aspects of IP Rights (TRIPS),Footnote 8 is binding on the member states of the World Trade Organization (WTO), which espouses and protects this understanding of IP and its protection. By extension, since WTO membership is extensive, it also represents near-universal acceptance of this approach to recognizing creation, innovation, ownership and the management of IP, particularly drug patents.
Patent protection is granted, upon application, to inventions that meet the criteria of: being new or novel; having industrial applicability; and having an inventive step, which means the invention must not be obvious to a person with ordinary skill in the art. The invention has to be adequately disclosed in the patent application. National patent legislation sets out inventions that are eligible for patent protection, which include pharmaceutical compounds, referred to here as “drug patents”. A patent holder has exclusive economic rights in the protected invention, including production and distribution. Patent holders may license their protected inventions, on terms they deem fit. Any unauthorized exploitation of the protected invention would constitute infringement and entitle the patent holder to seek recourse through litigation. In some cases, the patent holder may elect to license the infringing use to legitimize it. Patent law contains provisions that enable use or other exploitation of the patented invention without the necessity of seeking the patent holder's authorization in certain circumstances. These provisions are public-interest mechanisms that enable states to meet national needs. For example, compulsory licences may be provided for, which may be relied upon in a health crisis.
The preservation and maximization of the exclusionary edge in IP is encapsulated in the provisions of TRIPS, which is the overarching international regulatory framework for IP, in which drug patents (which remain a significant regulatory topic)Footnote 9 are an important element. The preamble to the agreement sets out clearly that it recognizes that “intellectual property rights are private rights”. This assertion at the beginning of the critical agreement governing IP rules clarifies the priorities being sought. However, this also immediately alerts one to a strong counterpoint that can be raised, namely the public interest. This is seen in the preamble's dual recognition of “the underlying public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives” and “the special needs of the least-developed country Members in respect of maximum flexibility in the domestic implementation of laws and regulations in order to enable them to create a sound and viable technological base”. This is further underscored by the objectives and principles set out in articles 7 and 8 of the agreement respectively, which emphasize the same elements.
There are, thus, counterviews both within the internal logic of the IP regime and from external viewpoints, which oppose the seemingly hegemonic acceptance of the framing of IP principles in the context of drug patents. Within the IP regime there is, for example, acknowledgement that exclusive ownership of a drug patent may be jettisoned under specific circumstances that form the basis of compulsory licensing and other exceptions, acting as public interest mechanisms to secure access in those specific circumstances.Footnote 10 In other words, a compulsory licence can be granted to grant access to the patented drug. In addition, fields of legal research, such as human rights, have over the years made a strong case for the human right to health to be understood as requiring access to medicines.Footnote 11 However, it is important to note that these two approaches operate from the underlying premise of being exceptions to the accepted rule of exclusionary ownership. They are thus intended as interventions to mitigate the strict rules and provide for exigencies in situations where there are “emergencies” that place human need, especially when of a global nature, over the profit incentive protected by exclusivity.
The utility of these exceptions in yielding the favourable material outcomes for which they were intended has, however, been called into question by what has arguably been the world's most dire health crisis in recent years. The COVID-19 pandemic and the varied responses to it (particularly regarding the manufacture and distribution of the eventual vaccines, therapeutics and diagnostics) has again called into question the current IP regime in its formulation and application. Importantly, it also exposed the inefficiency of the exceptions that were baked into the current IP framework, to serve in times like this. The attempt at a successful balancing act has thus been unsuccessful and has revealed the predominance of the private ownership and control paradigm. This apparent failureFootnote 12 of the existing rules and their exceptions has shown that the real problem lies at the root of our framing of intellectual property, particularly in the context of drug patents. While the status quo on the underlying principles of IP has largely been assumed as the “logical” starting point for any subsequent interventions, this article challenges that assumption and seeks to contribute to the emerging rethinking of the possibilities in our framing of intellectual property ownership and the distribution of the proceeds that flow from it. Building on the previous work of Ncube, where she makes a case for reimagining copyright law with an ubuntu approach,Footnote 13 this article explores the possibilities of an ubuntu approach to drug patents as an alternative framing, and what such an approach would mean for our understanding of patent ownership and subsequent manufacturing. These two foundational points are underscored to delineate the focus of the article. The article began with a general overview of patent law, because patents are an important tool in the commercialization of health. However, this article is not about patent law per se. Patents, as tools of commercialization, should be addressed in national health policy. However, an examination of health policy lies beyond the article's scope.
This article explores what a more humane and people-centred approach to patents would look like, without the present conflation of charity with the underlying ethic of ubuntu and the rights and duties that flow from it. To do this, it engages with the nature of ubuntu as a nuanced expression of a similar underlying and more ubiquitous concept of the communitarian ethic that is encapsulated by various cultures through varying names. The article subsequently engages with some of the salient criticisms of the communitarian ethic as an underlying principle for norm-setting in law, and then explores the possibilities of its application to drug patents, addressing some of the possible problems with such an application that the authors currently envisage. In doing this, the article engages with some of the concerns that may be raised in the implementation of this ethic that would appear seemingly at odds with the predominant neoliberal hegemony of the maximization of individual gain over all else. While the article does not presume to have all the answers to all the pressing questions that need to be addressed, it seeks to be a useful contribution to the important larger conversation exploring other ways of thinking about the perennial problems caused by the current world view that appears calcified in the framing of the possibilities. As such, this article seeks first to invite the reimagining of new possibilities, which itself is an important task in solving the problem, by proposing that the current way that things are being done is not the best way, but importantly, is also not the only way. It then explores what some of those new possibilities may be.
The nature of ubuntu
Ubuntu as a moral philosophy is encapsulated in the expression “A person is a person through other persons”.Footnote 14 Another variant of this expression is “I am because we are”. These expressions convey the ideology that humanity is most expressed by acts performed in relation to, and for the good of, others. The underlying principle here is that, for one to be a “full” person, one's conduct must be such that decision making has consideration for the wellbeing of the whole and, most ideally, one makes decisions based on what will best serve the good of the whole and not simply oneself alone.Footnote 15 This understanding of the human condition seeks to bring a sense of equilibrium to navigating personhood and autonomy along with humanness and the recognition of duty to others and respect for others’ rights.Footnote 16 While ubuntu and its other phonological variants largely draw from Southern African societies and their philosophical thought, the underlying principles are replicated in many other parts of Africa. Among the Yoruba of West Africa, the ubuntu sentiment is conveyed in the description of an individual as an omoluwabi [good person].Footnote 17 Similarly, in Igbo culture, also of West Africa, the saying goes that “[w]hen an animal needs to scratch its back, it runs to a tree and scratches its back against it; but when humans need to scratch their back, they run to fellow humans”,Footnote 18 to depict the interdependence of people for human flourishing. In the Zimbabwean tradition, the concept of ubuntu is known by that name to Ndebele-speaking peoples and is directly translated to unhu or hunhu in Shona. All these various concepts and terms represent an overarching communitarian ethic that is present in those various communities. The communitarian ethic is often wrongly viewed as a uniquely African concept, in contradistinction to the more “Western” ethic that is more individualistic in approach.Footnote 19 Even where parallels are drawn to similar concepts in the Latin AmericanFootnote 20 or Asian traditions, they are still framed as relativist distinctions on the fringes, which are separate and opposite to the Western position, which is posited as the “centre”. As such, the concept of ubuntu and its variants are often dismissed as being a peculiarity akin to nativist, pre-modern society.Footnote 21 In this sense, it is misconceived as an archaic value that no longer keeps in step with modern sensibilities, even in the places it is still recognized. In a sense, it is then more easily relegated to the same realm of being an open ended, catch-all aspirational notion, as other concepts like dignity, which are also dismissed as insufficiently defined and vague.
All of this makes it easier to dismiss the communitarian approach to social ordering as impractical, vague and outdated.Footnote 22 Such a position, however, does not resonate with reality. This is because, contrary to the position that the communitarian ethic is intrinsically non-Western, the history of Western thought and philosophy is deeply steeped in a recognition of human solidarity. Whether drawing from Greco-Roman philosophical traditionsFootnote 23 or the more recent “Judeo-Christian” traditions many ascribe as being foundational to modern Western society, the overarching concept of being “one's brother's keeper” is foundational to anecdotes that serve as a simplification of similar sentiments with the communitarian ethic. As Etzioni points out, the communitarian ethic is more ubiquitous than is usually acknowledged.Footnote 24
These examples show that, contrary to the predominant narrative that societies are either totally self-effacingly communitarian or callously individualistic, human society and social ordering is more nuanced, with a recognition of the need for constant balancing of private and personal agency with social cohesion and the collective good. In this sense, the oft-quoted position of Hobbes that human life is “solitary, poor, nasty, brutish, and short”,Footnote 25 should in fact be read as a call for an overarching centralizing ethos of society that is transcendental and able to mitigate the misfortune that comes from an individualizing approach to human life.Footnote 26
While the importance of showing the existence and validity of the communitarian ethic in Western thought and social ordering is fundamental to the authors’ attempt to create a unifying global intellectual property regime outside the current conception, a decolonial lens may baulk at such an attempt. This is based on the underlying premise that, however well meaning, the co-opting of Western accession is not necessary for legitimacy and that what is actually needed is a counternarrative that prioritizes other forms of “meaning-making”Footnote 27 and norm setting.Footnote 28 The validity of this counter point is crucial. However, a utilitarian approach that is “pragmatic” may be more inclined to make the case for a universal common ground, which is the approach taken in this article, especially when considering the realities of the current concentration of legal, economic and political might in those Western “centres”.
At the heart of the diverse expressions of the ideal socialized member of society, lies a communitarian view that the existence of human dignity and personhood is dependent upon its recognition by others and in relationship to others, if it is to be expressed in its fullest form.Footnote 29 The rights, responsibilities and relationships that flow from being a fully functional human in society, therefore, should be used in ways that validate the mutually affirming recognition of the human and the societal context within which they operate. In this sense, human dignity is reaffirmed by acting in ways that are worthy of that dignity.Footnote 30 Here, an individual is not only valuable because of their inherent dignity, but also because of how that dignity spurs them to act for the collective good. In this manner, action for the collective good is the highest societal value. This is because action for the good of the person alone is limited by the acquiescence of others who recognize the existence of their right to act as such. In this relational framing, action not merely for the good of the right holder but also for the good of those that have acquiesced to that right is the optimal Footnote 31 outcome. Therefore, the optimal utilization of human agency is not simply for self-realization but is rather geared towards the larger goal of optimization for the good and benefit of others, ie the collective good / in the public interest. The determination of the collective good itself would be context specific, but determined by what is the optimal utilization of the agency, capacity and ability inherent in the individual for collective flourishing.Footnote 32 As Ncube notes, the guiding principle for a communitarian approach would be “the public interest”.Footnote 33 This would mean first defining the “public”, a subject that Ncube addressed, noting that, while the public is often an amorphous construct, determining what it is, is largely context specific and often requires the balancing of seemingly opposing interests.Footnote 34
Broadly speaking, communitarian thought places human relationships and their maximization at the core of social ordering.Footnote 35 Here, the emphasis is on groupness, sameness, cohesion and commonality. rather than survival of the fittest and the glorification of control over nature. The general guiding principle of this frame of thought is the survival of the entire community, guided by a sense of interdependence, cooperation, collective responsibility and a duty to live in harmony with Footnote 36 nature.Footnote 37 As such, in the communitarian ethic, there is an underlying social contract where, in exchange for recognition of an individual's sense of dignity and personhood, there is a reasonable expectation of the individual that they will reciprocate by acting in ways that optimize the realization of the common good of all. As such, while one's personhood grants them their autonomy, it is also that personhood that compels them to “self-regulate” the exercise of their autonomy in their societal context.
The communitarian ethic as a basis for norm setting
Ubuntu, and the communitarian ethic it embodies, is, however, not limited to philosophical explorations of human nature. It can serve as the basis for framing the social contract of a people with each other and with their state, as well as serving as the ethical imperative of their subsequent laws.Footnote 38 One such example is the South African Constitution, which sets out to promote human dignity and equality, and recognizes the value of ubuntu.Footnote 39 In this instance, the underlying constitutional ethic recognizes individual rights while engendering the aspiration to fulfil and realize them for the betterment of the whole. This distinction, while being subtle, is important, especially when bearing in mind the critique that communitarianism unduly erases personal agency and subsumes the will of the individual under that of the often amorphous collective whole.Footnote 40 Invariably, questions on how, when and why there is a need to balance the rights of the individual against the good of the whole, lie at the heart of the push and pull in the discourse for and against communitarianism. Its opponents level various criticisms against the practicality, utility and feasibility of its operationalization as an overarching ethos for social ordering. This article now examines some of these criticisms.
Criticisms of the communitarian ethic
The communitarian ethic, especially as exemplified in the notion of ubuntu, has been criticized as being unduly vague, collectivistic and archaic.Footnote 41 Proponents of the communitarian ethic have conversely countered that ubuntu and its variants are not vague, but are rather a representation of an ever evolving concept, able to be refined to accommodate the ever changing ways of being a fully functioning and contributing member of society.Footnote 42 There is also pushback against the criticism that ubuntu is collectivist, and compulsive in its conscription to the assumed collectivist outlook. Metz, for example, has argued that, rather than compel cohesion, the communitarian ethic incentivizes voluntary accession to its ideals, knowing that the true strength of collective action for the collective good draws from voluntary accession.Footnote 43 Metz counters the critique of ubuntu being an anachronism that has no place in the modern world by asserting that morality is invariably a timeless construct that ensures the continuation of right action, failing which there is no basis for its continuance.Footnote 44
Despite the strong defence of communitarianism as a legitimate framework for effective social ordering, scholars like Oyowe have argued that communitarianism at its core is antithetical to our modern universal accession to the concept of individual human rights and the autonomy that flows from those inalienable rights.Footnote 45 The argument is that, if human rights are by their intrinsic nature applicable to every individual as an autonomous free agent, the intended nature of human rights is to be individualistic and should be understood as such.Footnote 46 Based on this assertion, adopting a communitarian framing of human nature and the rights that flow from it would, therefore, be an attempt to subvert the fundamental nature of rights and, worse still, would open the door to further subversions of human autonomy through the justification of a vague notion of the greater good. The counter that has been made to this critique is that it conflates the nature of human rights with its ends. The counter point asserts that the goal of the communitarian reading of human rights is rather to protect personhood while seeking to optimize its utility for the greatest good of the greatest number.Footnote 47 In this sense, ubuntu primarily serves as a means to an end and is an interpretative lens for reaching the goal of optimal human flourishing.
Another common critique of the communitarian approach is that it also legitimizes relativist readings of rights,Footnote 48 thus threatening the foundational premise of rights as being universal and inalienable.Footnote 49 The rationale underlying this critique is that, in the communitarian framing, rights may only be recognized to the extent that they conform to the prevailing socio-cultural perception of what is right and acceptable, whether real, imagined or contrived. The argument is therefore that the possibility of legitimizing undue affronts to autonomy in the name of a lack of widespread social acceptance is fundamentally antithetical to the nature of rights and the agency they guarantee. According to critiques that make this assertion, once rights are not grounded on the universality and inalienability that makes them sacrosanct, any and all subsequent whittling of rights may be justified by self-appointed custodians of the communal ethos, leading to the slippery slope of dictatorship.Footnote 50 They argue that what is mistaken as relativism is rather a contextual framing of rights and a recognition that human rights are enjoyed within society and not in a vacuum. In this sense, liberty must be understood in context, ie in relation to others in society, but also in relation to the subject matter to which it is applied. If this is the case, it is imperative to explore how to apply the communitarian ethic to drug patents.
Applying the communitarian ethic to the laws and principles of drug patents
To be an effective alternative approach to addressing the challenges of how and why drugs are patented, a communitarian approach would have to be applied to our rethinking of the creation and innovation process upon which recognition of ownership is based. The authors apply this rethinking to the formulation of vaccines and how the discoveries are made and funded and examine how such an approach may lead to more equitable outcomes. This shows that, contrary to the predominantly individualizing narratives upon which private ownership is based and justified, there is significant public input in the formulation of vaccines and makes the case that, while not currently understood as such, the communitarian approach is already being applied, without the commensurate benefits. This is apparent in the formulation of vaccines, to which this article now turns.
Adopting the communitarian sentiment in the formulation and subsequent ownership of patents
The process of creating a vaccine is the first point of a legitimate claim to ownership. Vaccine production and drug production more broadly are significantly resource-intensive endeavours.Footnote 51 Considerable sums are often needed to engage in the kind of cutting-edge research, driven by exceptional expertise in the relevant field of enquiry.Footnote 52 In this sense, the formulation of life-saving medication is based on two key factors, without which the endeavour is unlikely to succeed: intellectual input and material input. Regarding intellectual input, science (as with all other fields of knowledge) is built on an accretion of knowledge,Footnote 53 much of which is publicly available.Footnote 54 Significant leaps in knowledge and our understanding of the human genome, virology and the immune system have all contributed to modern vaccine production.Footnote 55 However, it is also important to know that, unlike a cookery recipe, where only a few changes are necessary to personalize the dish, the process of vaccine formulation for a new virus, which may be significantly less understood, is significantly more cumbersome and specific. While the foundational processes for vaccine production in general may be known, specific case formulation of disease-specific vaccines requires scientific ingenuity, by sufficiently skilled experts, with the necessary resources.Footnote 56
Much of this innovation is also resource dependent. Laboratories with modern cutting-edge technology are often needed for the kind of research required to produce effective vaccines, especially in a timely manner. This has mostly necessitated millions of dollars in research and development, with a legitimate expectation that there will be a return on that capital-intensive investment once the product of the research is patented and distributed to the market. However, while significant resources are used by the private sector for this kind of research, in certain instances, rich states have provided significant resources; for example, Operation Warp Speed (OWS) was a partnership between the US government and the pharmaceutical industry to deliver 300 million doses of a safe and effective COVID-19 vaccine in record time.Footnote 57 This significant state intervention provides a useful blueprint for the kind of action that is geared towards the public interest.
Based on the internal logic of patent ownership, the ability to enjoy an interest draws from ownership, which in turn draws from commensurate effort and input in the intellectual and material aspects. It therefore follows that, if a drug is created and owned by a private entity, the interest is that of the private entities to do with as they see fit. In the same vein, public interest must draw from public input. As in the case of OWS, where significant state funds were ploughed into funding and developing the COVID-19 vaccine,Footnote 58 a communitarian approach must involve rethinking the source of intellectual and material input. It must be drawn from public input, whether through consortia of experts or through publicly funded research labs. Significant funding, whether through the state as a trustee of the public purse or through more direct public funding, must also be at the forefront of resource contributions. However, this is not enough. For, as OWS also showed, even with public funding, private ownership can still be prioritized. Most of the COVID-19 therapeutic and vaccine clinical trials were funded by public sources (1,144 or 57.9 per cent), followed by industry (540 or 27.3 per cent) and public / private partnerships (293 or 14.8 per cent).Footnote 59 The large percentage of public funding calls into question the rationale for private ownership of the patent. The prioritization of the individualizing profit-centred motive (as encapsulated in the socio-economic outlook of the US) has meant that, even though the state has been largely responsible for the production of the vaccine, it has taken a narrow or limited definition of the scale of the contribution made by the state or of who constitutes the “public” in whose interest it acted. The initial choice to limit its framing of the public for which it was acting to its local populationFootnote 60 is logical in the context of the domestic social contract and the justifications for taxation and its usage. However, it is problematic in the context of international geopolitics, especially when considering the predominant rhetoric of international solidarity, chaired by the US when in pursuit of its own global interests.Footnote 61
While this example shows how the public's contribution is inadequately recognized, reframing this approach as a necessary communitarian intervention in the face of global health crises is a key step towards normalizing and scaling such interventions. As shown above, one practical intervention based on a communitarian approach to vaccine formulation is the concerted effort at publicly funded and executed research through public health bodies. Importantly, this approach is helpful for reframing drug production from being largely individual and private sector driven. Working within the internal logic of the patent regime as it is, this approach ensures public ownership, arising from public input. Admittedly, the prioritization of publicly funded and produced drugs comes up against the prevalent perception of private efficiency over public bureaucracy. However, there is the persuasive contradictory evidence that this is a false dichotomy built on a faulty premise, itself driven by the individualizing capitalist motive.Footnote 62
While the communitarian ethic is useful for rethinking how innovation is funded and produced, as shown above, it still operates within the established parameters of ownership, drawn from contribution. However, the application of the communitarian ethic has the potential for even greater emancipatory approaches to patents and how access is prioritized. For one, it unsettles the underlying notion that one's actions can and should only be driven by the ability to benefit from those actions exclusively. Flowing from this, applying the communitarian ethic disrupts the notion that those who have the ability to compensate the “owner” must be prioritized in obtaining access. More importantly, it calls us to envisage alternatives already rooted in the communitarian ethic, where it is central, and not an internal workaround within a system that is intrinsically self-serving in nature, even if those alternatives may not currently be understood or framed as communitarian in outlook. The authors argue that, while being communitarian in form, these interventions would be even better served if they were recognized as viable frameworks to the current individualistic hegemony and can be important in the normalization of alternative “meaning-making”, ultimately mainstreaming it as a viable alternative for how innovation is created, rewarded and distributed. The article now engages with these propositions.
Unsettling the presumption of profit as the central incentive for innovation
In the individualizing capitalist framing of human endeavour, the profit incentive is prioritized as the predominant motivation for action and innovation. As such, the converse is also often posited as being the case: without the possibility of being able to make a profit, no human endeavour is worthwhile or would be undertaken. So, while a desire for profit is in itself not necessarily an ethical wrong and can often be a primary motivator, the normalization of the profit incentive over all else can become essentializing and reductive, leading to a crude utilitarian approach to all human endeavours, including those that are more central to human flourishing. In fact, this problem is at the heart of the critique of the capitalist logic. It is not so much that a profit is sought in human endeavours, but that it must be sought in order for a human endeavour to be worthwhile, therefore reducing the motivation for innovation and creativity to more “crude” motivations.
This approach to creativity and innovation is both inherently wrong and faulty, as it is at variance with the communitarian ethic that prioritizes the public good and interest over profit. The communitarian ethic nudges a different path whereby the fruits of innovation are, in a sense, its own reward and that, even where things are originally created for narrow and limited use, there is great value is granting public access without an expectation of immediate material profit. History bears out this understanding of human endeavour. Several key inventions, like the internet, show that the theory that the profit incentive over all else is essential is inaccurate. These inventions show that great leaps in technology are both possible and adequately motivated by the human desire to make life easier, better, safer and healthier.
The infusion and normalization of the communitarian ethic as a viable and importantly “natural”, approach to human creativity, ingenuity and innovation is crucial for a paradigm shift in the reward systems that are prioritized and encouraged. Here, the focus is on the preservation and optimization of the collective good over narrow, individualizing private interests. The application of the communitarian ethic here is to validate and amplify the benefits of acting for the common good and, in so doing, create a value system where action beyond narrow individual interest is beneficial. The aim here is still to encourage innovation but to do so with the express buy-in of the innovator to act not for just themselves, but to go ahead in doing so having being convinced that such action is the best course of action on the basis of guarantees of benefit that transcend the individual. In this sense, it is not so much that individual interest is inherently bad, but rather that it is not the only way to approach innovation and problem solving, and it should also not be normalized as such. It is its normalization and centralization over all else that has led to alternative approaches being dismissed as untenable because they run contrary to “human nature”, which is implied to be inherently selfish and self-serving; views that see human nature as being more about collective human flourishing are regarded as sentimental, altruistic and unrealistic. In this sense, it is not simply the practice of this individualizing lens that is problematic, but it is also the normalization and valorization of the values it extols, propagates and rewards that are at the root of the problem.
However, the reality of corporations shows this view of motivation and subsequent action to be unduly narrow and limiting. The increasing normalization of corporate social responsibility and corporations acting as “ethical citizens” shows a clear demand for the determination of value beyond simple commercial viability. In some states, corporate social responsibility is a core consideration of stock exchange listing requirements.Footnote 63 While a more cynical reading of this gradual shift may see it as mere posturing, the fact that corporate social responsibility is seen as having non-monetary value that adds to the bottom line is proof of both the desire to see even private companies act for the public good and to reward such action with bottom lines that still align with their profit-making goals. Where companies have failed to act for the public good, social pressure has served as an effective tool for civil society. Such pressure may be exerted by civil society working with shareholders and other corporate stakeholders. Examples of this include campaigns to disinvest in energy sources that have a harmful effect on environmental sustainability.
The communitarian ethic as a philosophical rebuttal of the primacy of capitalist logic and price-based access.
The existing normalization of the notion of innovation for narrow individual interests is also rooted in the capitalist logic and the maximization of profit,Footnote 64 which commodify all goods and services and confine access to those able to afford it. Due to the predominant imperative to maximize profit, which lies at the heart of capitalism, access is restricted to those able to pay the ever-increasing prices set by the owner, which may have no real bearing on the actual costs of innovation, manufacturing and production. In this climate, the goods or service go to the highest bidder. This phenomenon played out during the scramble to vaccinate populations around the world at the height of the COVID-19 pandemic
However, the assumption of access to the highest bidder, as normalized as it has become, is problematic and falls foul of the principles of equitable access, which the communitarian ethic encapsulates and to which frequent calls for global solidarity appeal, without delivering. The pushback against the seeming lip service to the public interest / public good, without the necessary material outcomes, is analysed here. The normalization of the capitalist logic for prioritizing profit and confining access to those who can guarantee that profit can be critiqued in two major ways. First, it elevates the most hedonistic version of the ends of capitalism, which in turn sets it on the path to eventual self-cannibalization and unsustainability. As Kapur elegantly puts it, modern capitalism is a product of two opposing and paradoxical value systems: the puritan ethics of hard work, temperance, thriftiness and sobriety on one hand, which motivate the desire to apply human intellect and time to an otherwise impossible task and to see it to a logical conclusion, and the opposing value of hedonism, which glorifies immediate gratification, greed and narrow pecuniary interest above all else.Footnote 65 With these varying motivations in mind, the question then is, what lies at the heart of the decision to invest significant numbers of people and resources in finding cures to the ailments of society? Is the hope and expectation of eventual astronomical financial gain the primary motivator of years of hard work and dedication? While the authors do not presume to have an answer to these questions, which only companies and their shareholders can answer, they believe that, particularly in the specific case of vaccine manufacturing, the answer should not simply be the desire to turn as large a profit as possible to the detriment of all else.
If, however, that were the case, it would raise the second challenge of being a short-sighted approach that ultimately leads to its own demise. In the case of vaccines, the point of their creation is to give whole populations a fighting chance. To prioritize profit and as a result place a premium on serving only those that can afford to pay at the price determined to guarantee maximal profit for the manufacturer, would be to practise public health and economic Darwinism. While large portions of low- and middle-income countries would be adversely affected now by this decision, with each new public health crisis, the number of those who can afford to access life-saving medication at the price that guarantees maximal profit will shrink, until the system is no longer tenable.
Communitarianism calls the free-market agent to lean more towards the puritanical motivations of its actions and choose to balance its desire for profit with the satisfaction of true societal impact as a contributing, fully functioning member of its society. It calls the capitalist to acknowledge that, while they are not required to live like an ascetic, eschewing all imperative to seek reward for their hard work, they should accept that they indeed have a wider responsibility to the population they serve, and to which they provide their products and services. As Kapur notes in his quote from Japanese entrepreneur Konotsuke Matsushita, “[p]rofits should not be a reflection of corporate greed”, but are useful as “a vote of confidence from society that what is offered by the firm is valued”.Footnote 66
However, beyond the philosophical appeal to our better selves, practical steps that actualize the promise of protecting the common good are possible. While international human rights law has over time done considerable work to normalize the prioritization of access based on need through the right to equitable access to medicines, the events of the COVID-19 pandemic have shown that, while lip service is being paid to global solidarity and the protection of society's most vulnerable, the tangible steps regarding TRIPS waivers and the realization of state party obligations are being left unmet. In the face of this, this article now looks at possible interventions that are in tandem with the communitarian ethic and can produce the desired result of equitable and equity-based access to vaccines in the interest of the public good.
Practical application of a reimagined ubuntu approach to drug patents
Consideration of a communitarian-based approach for a capital-intensive project like drug production raises several questions around viability, sustainability and, in the case of private corporations, profitability, which was also examined above.
One key intervention that shows the promise of delivering equitable outcomes is that of a form of barter system where states trade their knowledge for resources, exclusionary markets or tax breaks, for instance. It is of great importance to recognize and promote the duality of interests in making determinations on the diseases to be given TRIPS waivers, so that in future more prompt and appropriate action can be taken. For instance, it could be agreed that whatever the World Health Organization determines to be a global health emergency deserves such a response. If such a position is taken, it raises the risk that the process of making the determination will become more politicized. Another consideration is whether such an approach would deter private entities from working on a vaccine that they already know would be subject to a waiver. A supporting strategy may be to establish a global vaccine fund to which states contribute, based on their socio-economic standing, at agreed ratios, and, the moment a global emergency is declared, have that fund made available to help fund entities, organizations and companies that are making the necessary diagnostics, therapeutics and vaccines. Once the pharmaceutical compositions and other necessary elements are developed, they would then be given to all member states to initiate local production at scale. This would be contingent on the requisite manufacturing capacity being developed in the meantime. States could then also negotiate purchasing arrangements, should they be unable to produce the drugs locally, with the necessary support from the global fund. Whichever configuration of options is chosen or is workable, ultimately the issue is that ubuntu and human rights must force states to acknowledge that every disease cannot be left to the whims of the free market or the prevailing economic order. The application of the communitarian ethic in framing the problems as well as the possible solutions most compel state parties to do more, while enjoining private actors to work for their considered self-interest as social citizens. In the most ideal scenario, collaboration from both for the public good is best. It allows for the maximization of resources, expertise and existing structures and mechanisms. As warp speed and the multisector collaborations on technology transfer show, this kind of collaboration is both possible and productive. It is, however, important that these interventions are not misrepresented as charity or as one-off expedience-based actions, but rather as templates for rethinking what is possible and how we achieve what is possible.
Conclusion: Ubuntu and human rights – equity not charity
While private entity ubuntu, corporate social responsibility or charity may yield some positive results, they do not go far enough; the world has not yet seen these values and practices resolve crises, as was most recently the case with the COVID-19 pandemic.Footnote 67 Hence the global call for “equity not charity”, sounded as long ago as 1977 by President NyerereFootnote 68 and more recently by several civil society groups, such as Health Equity (in relation to the COVID-19 pandemic) and the Treatment Action Campaign (in relation to the HIV / AIDS epidemic).Footnote 69 The point is that there is a binding legal obligation, clearly found in human rights, which requires the granting of access to drugs. The right to health entails access to the necessary diagnostics, therapeutics and medicine. More than the solutions proposed thus far, the primary takeaway is that we must not be stuck in the predominant hegemony of current thought that presumes that the current way of thinking about the problems and possible solutions to them is the only way. We must rethink the possibilities of more just outcomes through more just processes. It must force us to rethink what is possible, a challenge posed eloquently and compellingly, almost two generations ago by President Nyerere:
“For people are dying unnecessarily because they do not have clean water, enough good food, or basic medical care - which is what economic development means to us. The most basic human right of all is the right to life itself, and a life which is not made miserable by hunger, ignorance or preventable disease. The present economic order governing international production, development, and exchange does not in practice ensure progress towards meeting those basic needs for all people, all over the world. The plea of the poor is a new international economic order ‘which embraces for its objective the happiness of mankind’.”Footnote 70
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