Distributive Justice in Intellectual Property: Fairness and Equity

Every time a new life-saving drug is patented and priced beyond the reach of millions, or a piece of software is locked behind expensive licences, a fundamental question surfaces: who truly benefits from intellectual property rights? The theory of distributive justice offers a direct answer – IP rights must not only reward creators but must also ensure that society at large receives a fair share of the benefits. Far from being just a philosophical ideal, this theory has real consequences for how IP laws are designed, interpreted, and reformed across the world, including in India.

What is the theory of distributive justice? 🔗

At its core, distributive justice is about how resources, opportunities, and benefits are shared within a society. Applied to intellectual property, it asks a straightforward question: does the current IP system distribute benefits fairly between creators and the public, or does it concentrate gains in the hands of a few while leaving others behind?

The theory draws from a rich philosophical tradition. John Stuart Mill, the utilitarian philosopher, argued that just distribution is guided by principles of impartiality, sufficiency, and merit – meaning rewards should correspond to contribution, not merely to the accident of being first to file a patent or register a copyright. Mill’s concern about “accidents of birth” determining life outcomes translates directly into IP law: should a person’s access to a medicine or a textbook depend simply on their economic circumstances? Philosophers like R.M. Hare and Peter Singer extended these ideas, insisting that any just system must give impartial weight to everyone’s interests – not just those of patent holders or wealthy nations.

Unlike natural rights theories that treat IP as an inherent entitlement of creators, distributive justice evaluates IP systems by their outcomes – whether they actually produce fair results for society as a whole.

Core principles of distributive justice in IP 🔗

When applied to intellectual property, distributive justice is typically built around several guiding principles that together form a coherent framework for evaluating IP law.

Fair compensation for creators 🔗

Distributive justice does not dismiss creators’ interests. It recognises that inventors, authors, and artists deserve reasonable rewards for their intellectual contributions. IP rights provide the economic sustainability that enables creators to earn livelihoods, recoup research and development costs, and have an incentive to keep innovating. The emphasis, however, is on reasonable compensation – not monopoly profits that last indefinitely.

Equal access and proportionality 🔗

The theory insists that knowledge and creative works should be accessible across socioeconomic divides, and that the benefits flowing from IP should be proportional to the actual contribution made. An IP system that allows a pharmaceutical company to charge ₹2.8 lakh per month for a cancer drug – as was the case with Bayer’s Nexavar in India – fails the proportionality test when that same company is not even making the drug available to the public in sufficient quantities.

Public benefit as the ultimate goal 🔗

Perhaps the most important principle is that IP rights exist not as ends in themselves but as instruments for broader social good. Distributive justice underscores that IP rights are an exception to the default of a public domain and should not be treated as absolute property rights. Once IP protections start harming public interest – by restricting access to essential goods – they lose their justification under this theory.

The central tension: incentive vs. access 🔗

The most honest acknowledgment that distributive justice theory makes is that there is a genuine tension at the heart of IP law. Strong protection incentivises creation but restricts access. Weak protection improves accessibility but may reduce investment in innovation. Finding the right balance is the central challenge – and the theory of distributive justice provides the compass for that search, even if it does not hand you a ready-made map.

This tension is not abstract. It plays out every time a pharmaceutical company sues a developing country’s government for issuing a compulsory licence, every time an academic paper is locked behind a paywall inaccessible to researchers in lower-income institutions, and every time a software patent prevents a startup from building a product that could genuinely serve the public.

Distributive justice and Indian IP law 🔗

India’s IP framework is one of the most instructive examples of distributive justice principles being embedded into law. Long before the philosophical terminology became popular in legal scholarship, Indian policymakers were wrestling with exactly the questions that distributive justice asks.

The Patents Act, 1970 and its philosophy 🔗

The Patents Act, 1970 was built on recommendations from two committees – the Bakshi Tekchand Committee and the Justice Ayyangar Committee – that explicitly focused on India’s socioeconomic conditions. The Bakshi Tekchand Committee specifically recommended that patent law should ensure medicines and medical devices are available to the public at the cheapest possible price, while still honouring creators with reasonable compensation. This is distributive justice in statutory form. The Act introduced a “process patent” regime for medicines – meaning companies could patent the manufacturing method but not the medicine itself – which allowed Indian generic manufacturers to produce affordable versions of drugs patented elsewhere. The result was India earning its reputation as the pharmacy of the world, exporting affordable medicines to dozens of countries.

Compulsory licensing: the distributive tool 🔗

One of the clearest expressions of distributive justice in Indian patent law is compulsory licensing. Under Section 84 of the Patents Act, 1970, if a patented product is not available to the public at a reasonably affordable price or is not being manufactured in India in sufficient quantities, the government can authorise a third party to manufacture that product without the patent holder’s consent, in exchange for a royalty.

India’s first compulsory licence, issued in 2012, illustrates the stakes perfectly. Bayer’s patented kidney and liver cancer drug Nexavar was priced at approximately ₹2.8 lakh per month. The Controller General of Patents granted Natco Pharma a compulsory licence to manufacture a generic version at around ₹8,880 per month – making it accessible to patients who would otherwise have no realistic means of treatment. This decision was squarely grounded in distributive justice: the patent holder received royalties (fair compensation), while the public gained access (equitable distribution).

India, TRIPS, and the Doha Declaration 🔗

When India became subject to the TRIPS Agreement after joining the WTO, it faced significant pressure to adopt stronger patent protections that many argued would undermine access to affordable medicines. The 2001 Doha Declaration was a direct response to this tension, affirming that TRIPS should not prevent countries from protecting public health and that governments have the right to use compulsory licences in national emergencies. India was a key voice in the Doha negotiations precisely because its distributive justice concerns were not hypothetical – they affected millions of patients.

Most recently, India and South Africa jointly proposed a TRIPS waiver during the COVID-19 pandemic in 2020, seeking to temporarily suspend IP protections for COVID-related vaccines, medicines, and technologies so that developing nations could manufacture them without restriction. The proposal generated fierce debate, with pharmaceutical companies and developed nations arguing that IP protections drive innovation, while supporters of the waiver argued that those protections were directly causing inequitable vaccine distribution globally.

Beyond pharmaceuticals: distributive justice across IP domains 🔗

While the medicines debate is the most visible, distributive justice concerns extend across all areas of intellectual property.

In copyright law, the tension arises when textbooks, academic journals, and educational materials are priced beyond the reach of students and researchers in developing countries. The Marrakesh Treaty – which allows exceptions to copyright for persons who are blind or visually impaired – is an explicit example of international IP law adopting a distributive justice framework to ensure access to knowledge for those who would otherwise be excluded.

In traditional knowledge, distributive justice raises a different but equally important concern: indigenous and local communities that have developed and preserved knowledge over generations often receive no benefit when that knowledge is commercialised by corporations through IP rights. Indian law attempts to address this through instruments like the Traditional Knowledge Digital Library (TKDL), which documents traditional knowledge to prevent it from being improperly patented, thereby protecting communities’ equitable stake in their own heritage.

In technology and software, patent pools – where multiple rights holders collectively manage their IP and license it at lower rates – reflect the distributive justice idea that shared governance of knowledge goods can benefit more people than strict individual monopoly enforcement. Tesla’s decision to open its electric vehicle patents to the public is a widely cited example of a large entity internalising the value of broad access – recognising that progress on electric vehicles benefits even Tesla itself when the entire market grows.

Distributive justice vs. other IP theories 🔗

To appreciate what distributive justice contributes, it helps to briefly contrast it with competing theories. The Lockean labour theory justifies IP as a natural right: you own what you create because you mixed your labour with it. This theory focuses entirely on the creator’s entitlement and gives little weight to how IP affects others. The utilitarian or law-and-economics approach asks whether IP maximises overall welfare – which can arrive at similar outcomes to distributive justice in some cases but is ultimately indifferent to how benefits are distributed; aggregate welfare can increase even if most gains flow to a small group.

Distributive justice goes further by insisting that the pattern of distribution matters, not just the total. A world where a patent produces enormous profits for a corporation while millions cannot afford the patented medicine is unjust under this theory, even if the aggregate economic numbers look favourable. This makes distributive justice a more demanding standard – and one better suited to evaluating IP systems in a world of significant inequality between individuals and between nations.

Criticism and limitations of the theory 🔗

Distributive justice theory is not without its critics. One common objection is that weakening IP protections reduces the incentive to innovate, ultimately harming the public it seeks to help. If pharmaceutical companies cannot recoup their R&D investments through patents, the argument goes, they will invest less in developing new treatments. This is a real concern, though critics of strong IP point out that a significant proportion of foundational research is publicly funded – through government grants and university research – and that the current system often allows private companies to profit from publicly financed discoveries without proportionate contribution.

Another challenge is implementation: how do you decide what distribution is “fair”? Different philosophers and policymakers give different answers, which means distributive justice can sometimes function more as a critique of existing systems than as a precise blueprint for reform. Nevertheless, its value lies precisely in keeping equity and access at the centre of IP debates, preventing those conversations from being reduced purely to questions of economic efficiency or creator entitlement.

What do you think? If a pharmaceutical company invests billions in developing a life-saving drug, does it have the right to price it beyond the reach of patients in lower-income countries – or does the distributive justice framework demand otherwise? And closer to home, do you think India’s compulsory licensing provisions strike the right balance between rewarding innovation and ensuring public access, or should the threshold for granting such licences be made easier or harder to meet?

References

1. https://plato.stanford.edu/entries/international-justice/
2. https://www.bu.edu/bulawreview/2022/05/16/against-progress-the-value-of-distributive-justice-in-intellectual-property/
3. https://scholarship.law.stjohns.edu/lawreview/vol94/iss1/2/
4. https://pmc.ncbi.nlm.nih.gov/articles/PMC6044128/
5. https://www.parkerip.com/blog/compulsory-licensing-under-the-patents-act-in-india/
6. https://www.wipo.int/patent-judicial-guide/en/full-guide/india
7. https://journalofethics.ama-assn.org/article/intellectual-property-and-access-medicine-poor/2006-12
8. https://pmc.ncbi.nlm.nih.gov/articles/PMC10345817/
9. https://law.lclark.edu/live/files/23628-lcb211article1yanisky-ravidpdf
10. https://www.cambridge.org/core/books/intellectual-property-innovation-and-economic-inequality/distributive-justice-beyond-intellectual-property-laws/9A2B48E1FA50FB76896AABDEBEB95641