Abstract

The twelfth century canon lawyer Gratian once wrote "Feed the man dying of hunger, because if you have not fed him you have killed him." If Gratian were alive today, he might take a look at the current state of global health and say, "Succor the woman dying of disease, because if you have not helped her you have killed her." Both of these statements express an ethical obligation: if I have food, and someone else who is hungry does not, I am obligated to share my food. Likewise, if I have medicine, and someone else who is sick does not, I am obligated to share my medicine. Unfortunately, with regard to medicines and other essential products, modern institutions of intellectual property often fail to enforce or even recognize such ethical obligations. In some ways these institutions uphold an even harsher attitude regarding intellectual property than tangible personal property. With food, even if the hungry person receives no bread, he is still permitted to produce his own. With medicines, medical technologies, and other types of goods that are protected by institutions of intellectual property, the law can and often does prevent the sick person from producing her own. This paper contends that current institutions of intellectual property, especially patent law and policy, fail to adequately articulate the ethical obligations of intellectual property rights holders. By drawing on the numerous resources regarding the ethical obligations of property holders present in the Catholic tradition, the paper seeks to determine the obligations of intellectual property rights holders towards others, particularly in the context of ensuring widespread access to essential medicines. By focusing on the language of obligation, a language which is often neglected in rights-oriented debates, I believe we can more clearly understand the role of intellectual property in our society. The only way to ensure ethically defensible institutions of intellectual property is for policymakers, government officials, and those in the legal profession to consider seriously the ethical obligations of intellectual property rights holders, and to allow those obligations to inform their decision making. Additionally, scholars of religious ethics should begin to critically examine the institutions of intellectual property, institutions that have heretofore received only limited scrutiny from religious communities.