Brazil and Compulsory Licenses

by Stephan Kinsella on June 8, 2007

From Mises blog, June 7, 2007; archived comments below.

As I’ve noted previously, there is nothing necessarily unlibertarian about the feds issuing a compulsory license of a patent, since this merely takes back some of the monopoly right it should not have granted in the first place. (See Condemning Patents and Patents, Prescription Drugs, and Price Controls.)¹

Now “Brazil decided to break the patent on the HIV drug Storcrin (the brand name for efavirenz), becoming the second country to challenge the pharmaceutical industry in seeking a drastic reductions in drug costs. Brazil’s President signed a compulsory licence for efavirenz to purchase from generic suppliers under provisions permitted by World Trade Organization rules.”

What is funny is the language used to describe compulsory licenses–Brazil decided to “break” the patent. It’s reminiscent of the Orwellian language used to describe countries’ efforts to “fight” inflation–as if they are not the cause of it. The patent Brazil decided to “break” is a patent granted by Brazil itself. That is, Brazil grants a monopoly privilege to some patent holder, and then decides to retract it. That’s “breaking” something?

Comments (47)

Yancey Ward
Government double-speak is the usual language, such as reducing tax rates is robbing the poor and giving to the rich.
Published: June 8, 2007 11:41 AM
Daniel M Ryan
If y’all don’t mind a cynical interpretation of the news, it’s evident that the Brazilian government has decided that there are no fundamental breakthroughs in the drug pipeline.”They don’t nationalize the mine ’til after it’s dug.”
Published: June 8, 2007 12:00 PM
Brad
Echoing Daniel, it’s obvious States first bar to assist sector a, then release to assist sector b, yet always serving itself above all. It’s all part and parcel of how “capitalist” countries are anything but. The government controls with strings to ultimately suit itself. It looks like capitalism to those who don’t look very hard, but it’s really socialism. The neatest trick of all, when the function ultimately fails, it fails under the banner of capitalism and elicits calls for more boldfaced socialism as the “solution”.So it’s not just a straight contradiction, issuance and retraction, resulting in a negation, it’s a ploy to make sure everything is ultimately in the hands of the State bureaucrats and someone else takes the heat.This slight of hand obviously works since there are a good many people who believe it is Big Corporations that are keeping the world in poverty, when the only function that can force poverty on anyone that otherwise wouldn’t be is a State. While not a lover of Big Business, and certainly aware that there are very cozy relationships between Big Business and Big Government, such relationships only have efficacy when the much larger Big Goverment Brother exists in the first place.
Published: June 8, 2007 1:30 PM
Michael A. Clem
Obviously, the Brazilian government is breaking the promise they made to protect patents. But government promises are only as good as the political power that supports them. Crash-and-burn.
Published: June 8, 2007 1:49 PM
Person
Oh *we* didn’t nationalize the factory. We just stopped protecting it when all those nasty people wanted to kick you out!
Published: June 8, 2007 2:09 PM
Stephan Kinsella
Person, “Oh *we* didn’t nationalize the factory. We just stopped protecting it when all those nasty people wanted to kick you out!”Bad analogy, Person. Here’s why. First, if a mob wants to steal your house and the state does not step in, that is not the same as the state taking it. The problem is if the state prevents you from defending your property or from hiring your own defense agents. But assuming the state merely chooses not to provide you with defense assistance from private crime, it is not their fault. And if you choose to defend your own property, your action should be regarded as rightful, not itself criminal.But in the case of a patent, say, if the state refuses to grant you a monopoly, that just means it is refusing to penalize or jail people who are doing something similar to you. If you have a method for purifying water, say (a “recipe”), and you try to bomb the factory of a competitor doing the same thing, you are in fact committing a criminal act.
Published: June 8, 2007 2:32 PM
Person
Stephan_Kinsella: in both cases, the state is simply no longer enforcing some particular right. The only difference is in *which* rights you happen to favor — and then the other guy looks bad.Amateur stuff.
Published: June 8, 2007 3:41 PM
punter
Stephan, if you think this terminology is Orwellian, you should come to Australia and observe the Pharmaceutical Benefits Scheme (PBS)in action. Basically, the government supposedly acts as a monopsonist buyer in order to reduce the prices paid for drugs. This is supposedly a grand achievement which saves taxpayers billions a year (so we are told), of course it means that there are far less drugs available that have to be rationed by prescriptions (although given my extreme antipathy to allopathic medicine I can’t say this is a bad thing). Nonetheless, the government justification for the PBS is to lower prices and protect taxpayers. (You’ll note that the analysis of costs does not include the extra money that people have to fork over to see a doctor to give them the prescription they already know they need).On the other hand, of course, the justification for pharma patents is to ensure drug companies have enough incentive to justify their supposedly enormous research spending (which apparently consists of them finding poisons with extremely long names).So we need one bureaucracy to ensure drug prices are extremely high, and another to ensure that they are kept low – brilliant! Government action at its finest.
Published: June 8, 2007 6:45 PM
DC
Stephan_Kinsella: in both cases, the state is simply no longer enforcing some particular right. The only difference is in *which* rights you happen to favor — and then the other guy looks bad.It seemed pretty clear to me that Kinsella was distinguishing between the government refraining from doing something and the government actively interfering, as is the case when the government prevents one from justifiably defending themselves.In one case the government is simply no longer providing defense services, and in the other case they are an aggressor and an accomplice to the mob. I’d take the government that simply refrained from providing its “services” in a heart beat.
Published: June 11, 2007 12:40 PM
Joshua Katz
It seems to me that there is something to be argued here. I do oppose patents, but doesn’t the situation change somewhat once a patent is given? After all, to obtain a patent, the company has to make available the method used to produce the product, which they wouldn’t do if it weren’t required for a patent. Then, if the government removes the patent, the company is left worse off than they would be without patent law existing in the first place.
Published: June 11, 2007 7:43 PM
TokyoTom
While not directly related to pharmaceuticals, the greater protection of trade secrets that they can secure at home is one of the chief reasons that Japan’s main manufacturers keep their most advanced technologies at home:http://online.wsj.com/article/SB118158711463431505.html?mod=todays_asia_nonsub_page_one
Published: June 12, 2007 6:41 AM
Person
Tokyo_Tom: Remind me what that has to do with global warming?DC: In *both* cases the state is simply no longer intervening when someone’s (erstwhile) legal rights were being violated. To call one case “protection against aggression” is to beg the question.
Published: June 12, 2007 8:58 AM
DC
Person,There is a difference in kind between “no longer intervening” between two parties and actively interfering with a party trying to (justifiably) protect their own rights. No question-begging about it.
Published: June 12, 2007 10:55 AM
Person
DC: Yes, there’s question-begging. Right here: “trying to (justifiably) protect their own rights.” Can you really not see it?
Published: June 12, 2007 11:01 AM
DC
Person, not as it pertains to the distinction between refraining from action and actively intervening. In what way is the objection you raise valid?
Published: June 12, 2007 12:33 PM
Person
DC: Please, try to put some effort into this. In the case of physical property rights, the Brazilian government *actively intervenes* when someone violates them. In thecase of patents, the Brazilian government *actively intervenes* when someone violates them. Now, you tell me the difference, and really think about it this time.
Published: June 12, 2007 12:40 PM
DC
Person, don’t get belligerent. Your previous comment in this thread used an example of government inactivity, which is why Mr. Kinsella responded in the first place (and, subsequently, so did I).
Published: June 12, 2007 12:56 PM
Person
DC: My point was that patent-breaking corresponds to *both* active *and* passive interventions for property rights that you already agree with. That is, there’s the same except for which side you already favor. Now, come on, give me something more substantive to work with this time.
Published: June 12, 2007 1:40 PM
DC
Person, it’s impossible to have a “passive intervention for property rights that you already agree with.” Could you explain what you mean by your latest comment?
Published: June 12, 2007 1:46 PM
Person
DC: Let me see if I can fit this into your attention span:Physical property rights: The government refuses to disturb your property rights in what’s “yours”. The government combats those who stop you from doing so.Patents: The government refuses to disturb your use of your patent. The government combats those who violate it.
The government has active interventions AND “just leaves you alone” for both of them. The only difference is that you like one of the rights and you don’t like the other.

Now you can quit playing debater.
Published: June 12, 2007 2:54 PM
DC
Ah, I see. You’re making a claim that intellectual property rights exist. OK, now I see why you weren’t picking up on what Kinsella was talking about, and why you weren’t seeing my distinction.By the way, I don’t debate uncivil interlocutors. Goodbye.
Published: June 12, 2007 5:23 PM
Person
Yeah … it took you five exchanges to understand a simple point … and now you’re shying away … because I was incivil! Yeah, that’s it!
Published: June 12, 2007 8:18 PM
DC
My apologies, Person. It’s just that I have grown accustomed to conversing with people who are able to communicate ideas clearly, who are more interested in these ideas than in “winning”, and who know basic etiquette when it comes to debate.For example, it’s generally fruitful to grant the assumptions of your opponent, or at least use his terminology, and then show why you think his position is flawed. Otherwise, it’s a near content-less argument of unshared terminology, generally cheapening into sarcasm and insults, with both sides claiming victory at every turn. I’d rather not get dragged down to that kind of “debate.”I had forgotten that the anonymity of the internet makes people bold toward every inclination.
So, interpret this comment however you’d like — really. Call this my resignation to your superior argument, or my admission of an inability to understand the most basic concepts. It doesn’t seem to me that this is logical, nor a likely explanation, for why I’m stepping away, but I can’t force you to hold one opinion over another.
Published: June 13, 2007 7:14 AM
Person
DC: You couldn’t see the point I was making, because you assumed your conclusion. Yes, if I already accept that IP rights are invalid, Brazil didn’t do anything wrong. But if I don’t accept that, Stephan_Kinsella’s “argument” (and I use that term loosely) doesn’t establish much.I expect better of people. That’s not unreasonable.
Published: June 13, 2007 8:33 AM
DC
It shouldn’t be surprising that a post on a libertarian blog might assume that, say, property rights are a true / valid idea and intellectual property is false / invalid.I don’t see why he would be obligated to prove his way back to a libertarian foundation of natural rights every time he brings the subject up.You are right, though: by assuming a simple set of libertarian values, the post stands as is. Question those foundations, and the blog post as is won’t serve as the proof-text for the assumptions that were made in writing it. Yipee.
Published: June 13, 2007 2:37 PM
Person
DC: Stephan_Kinsella’s post was intended to show a reason why IP is absurd. It doesn’t show any absurdity unless I already agree it’s absurd. It provides nothing useful except for Stephan_Kinsella to preach to an echo chamber about his flimsy theories. I explained this already.You’re not putting enough effort into thinking about these ideas. Try harder.
Published: June 13, 2007 2:55 PM
Kevin B.
Person: “Stephan_Kinsella’s post was intended to show a reason why IP is absurd.”IP “rights” do not need this post to be absurd.Most obviously, Kinsella is pointing out the silliness of government officials placing blame for the negative effects of patent laws on patent holders.
My opinion is that Stephan Kinsella’s post was intended to show a reason why the State is absurd.
Published: June 13, 2007 3:42 PM
DC
Stephan_Kinsella’s post was intended to show a reason why IP is absurd.That’s a bad assumption. Kinsella’s post shows an absurdity that follows from the government’s handling of IP rights (in this case, language).Pointing out the fact that he’s relying on an assumption to make this point is only relevant if removing the assumption takes away the linch pin of the post.
Published: June 13, 2007 4:14 PM
Person
Oh, okay, he wasn’t showing a reason why IP is absurd, he was showing an instance of IP being absurd.Wanna try that one again?
Published: June 13, 2007 4:23 PM
DC
Person, that you had to change my language is telling. Do you really not see it?
Published: June 13, 2007 4:40 PM
Person
Okay okay okay, So Kinsella wasn’t showing a reason why IP is absurd OR an instance of IP being absurd, but rather, and absurdity following from the government’s handling of IP rights.Ever got the feeling you should just … give up?Kevin_B.: Nah, I don’t think that was it or he would have hinted something like that.
Published: June 13, 2007 5:00 PM
DC
Person: nice counterargument. OK, I’ll give up now.
Published: June 13, 2007 5:03 PM
DC
Thinking over it still more, you really ought to question your assumptions on this one, Person. Reading Kinsella’s post, I don’t see any indication that he’s attempting to do what you say he intends.
Published: June 14, 2007 7:32 AM
Person
DC: That’s not surprising, since you seem to have no idea what he was trying to show, in the first place. Let’s see, Kinsella wasn’t showing why patents are absurd, he wasn’t showing why this patent was absurd, he wasn’t showing an instance of a patent being absurd … what was he doing? And how does this post do that?When you’ve got that whole deal patched up, then maybe I can take you seriously — or Stephan.
Published: June 14, 2007 10:31 AM
DC
Person, can you make a clarification for me? Are you saying that Kinsella with this blog post is claiming that IP rights are themselves invalid, or only that he’s showing how it’s laughable/absurd in application? Your implicit claim seems to be that he’s using this post to argue that IP is invalid, but you haven’t stated it as such.If you are saying that this blog is only about an absurd case of the application IP rights, then it is clear that you only need grant the assumption that IP is invalid (again, to be expected on a libertarian blog) to see how this instance is simply absurd. Or you could use common sense intuition to see the government’s equivocation.Or, it’s possible that you are claiming that Kinsella is trying to show the invalidity of IP with this blog, using absurdity as evidence. In other words, that he’s making an argument as to the nature of rights. In this case, the assumptions of the counterargument are to blame for the confusion.
In either case, as long as one realizes that this isn’t Kinsella’s proof-text against IP rights, the blog seems to escape your original criticism that he’s using “rights” in a way that you disagree with.
Published: June 14, 2007 11:06 AM
Person
DC: I don’t see the point of the distinction you’re making. Whether Kinsella is trying to argue for IP rights as being invalid, or for this showing an absurdity, it fails, for the reasons I’ve explained above. Refusing to enforce physical property rights is *also* “just not granting a monopoly”. Kinsella’s post is not argumentative, it is not creative, it is not ground-breaking … what is it supposed to be?
Published: June 14, 2007 12:51 PM
DC
Whether Kinsella is trying to argue for IP rights as being invalid, or for this showing an absurdity, it fails, for the reasons I’ve explained above.Reasons? I saw presumptuous assertions, and assertions that failed as persuasive critiques.Kinsella’s post is not argumentative, it is not creative, it is not ground-breaking … what is it supposed to be?
These are all value judgments, arguable in both directions, and ultimately in the eye of the beholder. Remember that this is just a blog, after all. . .
Published: June 14, 2007 2:02 PM
Person
Reasons? I saw presumptuous assertions, and assertions that failed as persuasive critiques.You’re not very bright, are you? My “assertions” were “asserting” the exact same things Kinsella said, except in a different context, showing his assertions’ weakness. Are you just now learning this?
Published: June 14, 2007 2:46 PM
DC
Person, you were asserting that you knew the intention of Kinsella’s post (to show that IP was invalid), and assessed it on that basis. (Your critique otherwise was aesthetic in nature, as I showed above).Your argument relied on making the point that the way Kinsella used “rights” was objectionable. I was merely pointing out that yours was a presumptive tactic, as Kinsella wasn’t even pretending to give a proof text for the validity or invalidity of IP within the scope of this blog post.Your critique showed that Kinsella committed the crime of assuming a libertarian philosophy before commenting on current events; that’s all. (You did do a good job of showing this, by the way).
And, as I said before, name calling and excessive posturing aren’t my cup of tea. I stuck around a bit before; I won’t be doing so this time. Goodbye.
Published: June 14, 2007 3:01 PM
Person
Person, you were asserting that you knew the intention of Kinsella’s postNo, I was showing the absurtity of his argument, regardless of his ultimate intent.Your critique showed that Kinsella committed the crime of assuming a libertarian philosophy before commenting on current events
No, he assumed “IP rights are invalid, physical property rights aren’t”. That’s not the same thing. It would be just as absurd — given what he posted — to describe “not enforcing property rights in a factory” as “breaking” something, as it would be to describe “not enforcing patents in an invention” as breaking something. That was the point, which has still eluded you.

Btw, this attempt to save face by acting like it’s the same calling that bothers you the most … isn’t lost on anyone. Get over yourself. You’re upset that you didn’t understand a simple point, revelled in your ignorance, and someone called you on it. We deserve better.
Published: June 14, 2007 3:38 PM
DC
Well, if your object is simply to keep me in this, Person, I have to admit that you are besting me. I hadn’t checked this thread up until just now, and didn’t expect to write more, but I’ll put in another counter-post.DC:Your critique showed that Kinsella committed the crime of assuming a libertarian philosophy before commenting on current eventsPerson: No, he assumed “IP rights are invalid, physical property rights aren’t”.
Also known as a basic libertarian world view, with the latter claim predicating the first.

That’s not the same thing. It would be just as absurd — given what he posted — to describe “not enforcing property rights in a factory” as “breaking” something, as it would be to describe “not enforcing patents in an invention” as breaking something. That was the point, which has still eluded you.

This is rhetorical, since this point hasn’t eluded me: I (and others) have highlighted it above and dealt with it. Moving beyond this assertion would be a step forward. If you feel comfortable where you are, asserting victory and my ignorance, feel free to stay there, though. I’m not here to rock conceptual boats.
Published: June 18, 2007 6:11 AM
Person
No, he assumed “IP rights are invalid, physical property rights aren’t”.Also known as a basic libertarian world view, with the latter claim predicating the first.
It’s not a “basic” libertarian world view, if many libertarians don’t accept it.

This is rhetorical, since this point hasn’t eluded me: I (and others) have highlighted it above and dealt with it.

Where have you dealt with it? Be specific. You already admitted you spent the whole time assuming your conclusion, but that’s “okay” because this is a libertarian web site.
Published: June 18, 2007 8:12 AM
DC
It’s not a “basic” libertarian world view, if many libertarians don’t accept it.

It’s the line of thought expressed in Mises, Rothbard, Walter Block, Hoppe, Roderick Long, . . .okay, I’m sorry. I’ll look for a 100%, unanimous, all-in-this-together agreement next time before saying that an idea is a basic notion in the philosophy. Let me rephrase: “Kinsella assumes one of the most common principles in libertarian philosophy in this blog post.” Better?

Keep in mind that many libertarians who seem OK with IP practices like copyright (most famously Rothbard) don’t actually think that “intellectual property rights” exist. Rothbard, of course, grounded his theory of copyright explicitly in property rights and contract, since he didn’t buy the argument that ideas could be owned.

Where have you dealt with it?

Posted by DC at June 14, 2007 11:06 AM
Posted by DC at June 14, 2007 3:01 PM
Posted by DC at June 14, 2007 2:02 PM

[Hint: It ultimately has to do with scarcity. You are assuming debatable conclusions from a different argument and are presuming these to be a valid objection to this one.]

You already admitted you spent the whole time assuming your conclusion, but that’s “okay” because this is a libertarian web site.

This bit makes me think that you haven’t yet gotten my point, nor the reason why Kinsella made that blog post. Do you still think that the blog was an argument attacking the validity of intellectual property?
Published: June 18, 2007 9:38 AM
Person
Let me rephrase: “Kinsella assumes one of the most common principles in libertarian philosophy in this blog post.” Better?Even then, no. “IP is invalid” would be an *implication* of a principle, not the principle itself. And it’s not as widely-accepted as you claim, if M. Friedman, Rand, and (see below) Rothbard accept some form of IP.Rothbard, of course, grounded his theory of copyright explicitly in property rights and contract, since he didn’t buy the argument that ideas could be owned.
What does it matter if he specifically believed that “ideas can be owned” or not; he supports of the *substance* of “idea ownership” that its supporters want.

Me:Where have you dealt with it?

You: Posted by DC … [Hint: It ultimately has to do with scarcity. You are assuming debatable conclusions from a different argument and are presuming these to be a valid objection to this one.]

*sigh*

I knew your attention span wasn’t very long, but you had to go and prove it again. Let’s go back and find out what the “it” in “dealt with it” refers to. Here’s my post that describes the “it”:

It would be just as absurd — given what he posted — to describe “not enforcing property rights in a factory” as “breaking” something, as it would be to describe “not enforcing patents in an invention” as breaking something. That was the point, which has still eluded you.

Now, how do any of your posts address that? They don’t!

This bit makes me think that you haven’t yet gotten my point, nor the reason why Kinsella made that blog post. Do you still think that the blog was an argument attacking the validity of intellectual property?

Have you settled on what you think Kinsella was trying to prove?

I though it was clear from the beginning that my posts in no way depended on what Kinsella was trying to prove, just that his reasoning was inconsistent. “Breaking” a patent is just like “breaking” a property right; the only difference is which you like. “Breaking” is therefore a neutral term to use, and doesn’t warrant Stephan’s mockery.
Published: June 18, 2007 10:34 AM
Michael
DC, you really should stop rising to Person’s bait. He has been an ass to you the entire time, and he has clearly shown that he is not interested in “intelligent and civil” discourse. Whether he is a troll or not, you’re wasting your time and effort on him.
Published: June 18, 2007 10:38 AM
DC
Michael, thanks for the interjection. I said twice before that I was done, but then I came back both times. You are right, of course, about the quality and meaningfulness of this entire thread.I may have made 2 mistakes in this comment thread by continuing, but I’ll be sure to forget about responding to Person’s flaming in any way in the future. I should have listened to my own advice only a few posts into this. 🙂
Published: June 18, 2007 10:54 AM
Person
Michael, I’m curious, how would you characterize Stephan_Kinsella’s original post? Was that an intelligent post, which revealed some kind of useful insight, or was it just mindless posturing? Think about it.Oh, and can you give specific examples of me being an ass?
Published: June 18, 2007 11:01 AM