The government of Brazil has recently announced its intention to begin copying a patented AIDS drug, earning it the dubious distinction of becoming the first county to break a patent on an antiretroviral medication. The move has appealed to the Robin Hood in many journalists, who are praising the step as a victory for public health over the pharmaceutical company villains. But there is much more to the story than simply robbing from the rich and giving to the needy Brazilians. Editorialists across the country frame the issue with a false dichotomy: if you agree with Brazil, they seem to say, then you are on the side of humanitarianism and public health, but if you choose to respect intellectual property rights, you are right-wing, heartless, or both.
It is an awkward situation to be in. The government of Brazil is claiming that its AIDS epidemic constitutes a public health crisis, meaning the patent agreements of the World Trade Organization do not apply. HIV/AIDS is indeed a crisis in Brazil and countless other places, and few would dispute the idea that developing nations need all the humanitarian aid that those more fortunate are able to give. But it wasn't so long ago that Brazil's government was comfortable enough to turn down a cool $40 million offered by President Bush to help with that very same crisis (they objected to the American request for a condemnation of the sexual exploitation of women). Drug companies are trying to help too. Brazil already receives some anti-retroviral drugs at prices as low as one tenth of the market price in North America and Western Europe, and Brazil is already allowed to legally copy more than half of the medicines used in their AIDS program.
Any attempt on the part of developed nations to provide humanitarian financial or technical assistance to countries struggling to control AIDS is laudable and should be encouraged. However, allowing Brazil to become the Napster of pharmaceuticals is at best a stopgap solution and at worst the beginning of a trend which could cripple revenues for drug research and development, draining the industry of the potential to make new and better treatments.
Most people are familiar with the argument that allowing Brazil to freely copy drugs undermines the incentive to develop new life-saving medicines. But there is another sinister force in this story that threatens global public health just as much. Allowing Brazil to use the "public health crisis" justification creates a dangerous and perverse incentive for governments of the developing world: if you as a government are responsible and work hard to uphold a fiscally manageable public health program, then you will be punished by having to pay for expensive drugs, but if you fail or simply ignore the problem and cry "crisis," then you will be rewarded with permission to trample on intellectual property rights. One thing is certain, the heroes and villains of this tale are not as easy to distinguish as the editorialists would have you believe.
Mara Burney is a research intern at the American Council on Science and Health.
