The argument that De George gives is an attempt to balance the rights of intellectual property holders against the rights of people to basic health care and life-saving medicines. The basic problem here is that we are attempting to balance a fundamental right to own those things that you invent against the fundamental right of some persons to live. Most people will say that the right to life trumps the right to property or to profit. This balancing act seems to put an unfair burden on the shoulders of pharmaceutical companies. They are in the business of making drugs to treat illnesses and save lives, but they are also in the business to make money.
Of course, the pharmaceutical companies would prefer very strong IP protections in all circumstances. Ideally, these protections would be absolute, and any company or nation found to be violating them would be subject to severe consequences. De George argues that IP rights are merely a priori rights that can be overridden by more serious needs. In fact, there are probably no rights which are absolute. No one has absolute freedom to act or absolute freedom to speak. The limits are set at the point that these actions and utterances would do unjustified harm to other people.
One of the questions that we must ask is how strong the right to intellectual property should be. Even if it is roughly analogous to the right to private property, it is probably still weaker than the right to life. This is most apparent when we are comparing the preference of a big pharmaceutical company against the health of an impoverished child in Chad. Does the same balance occur when we change the impoverished child to a sick citizen in the US who could pay for the medication even though it would cause them some financial hardship?
De George gives pharmaceutical companies two obligations (production and access), and those obligations are based on the rights of other people to life and health. It is common that non-western nations who face a health crisis lack the money to pay the prices set by pharmaceutical companies in the West, and so they often copy the drugs that other companies have created. This practice poses a substantial financial loss to the company that spent years of work and millions of dollars to produce. This is the quandary in the case of the African AIDS epidemic. In the case of Merck and the cure for River Blindness, we have a slightly different problem that sheds light on the conflict between property rights and human health needs.
Merck developed the solution to a problem that only affects an impoverished portion of the population, and they faced the choice between restricting the cure to those who could pay for it (almost no one) and finding a way to make the cure available to people at a very low (or zero) cost.
As De George points out, the obligation to help those in need is very clear when it is easy to help and it is clear who is obligated to render aid. As the distance becomes greater and the aid needed becomes more complicated, it becomes more difficult to see the obligation to help. When it comes to providing a medical remedy to a disease on the other side of the world, the systemic complexity rises to dizzying heights. Is Merck responsible for rendering that aid, or is there some other agency on whom the responsibility falls? Must Merck only step in when all other parties fail to act as they should, or are they the first line of defense?
It might even seem that Merck has a special obligation to render aid since part of their mission is aimed at improving health. If that is the case, are their obligations different from any other company’s obligations, or does every business constitute a moral agent who is obligated to aid those in need?
These questions are not easily answered, but they are the questions that we must address when we are faced with a world like ours in which technology gives us the ability to address global problems, but our ethical intuitions remain better suited to local action.