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THE ‘ACCESS TO MEDICINES’ CAMPAIGNVS. BIG PHARMAThomas Owena

a School of Communication Studies, Auckland University ofTechnology, Private Bag 92006, Auckland 1142, New ZealandPublished online: 21 May 2014.

To cite this article: Thomas Owen (2014) THE ‘ACCESS TO MEDICINES’ CAMPAIGN VS. BIG PHARMA,Critical Discourse Studies, 11:3, 288-304, DOI: 10.1080/17405904.2014.915860

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THE ‘ACCESS TO MEDICINES’ CAMPAIGNVS. BIG PHARMACounter-hegemonic discourse changeand the political economy of HIV/AIDSmedicines

Thomas Owen

This paper deploys Laclau and Mouffe’s discourse theory to examine the dispute over intellectual

property protection and global HIV/AIDS medicines access. Over the 1980s and 1990s, major

pharmaceutical companies and minority world governments successfully crafted a strong patent

protection regime, institutionalized in the World Trade Organization’s intellectual property rules.

In the early 2000s, a transnational civil society campaign challenged this regime, positioning

patents at the centre of a highly publicized dispute. This dispute has been retrospectively identified

as a turning point in medicines access discourse, with the 2001 – 2003 period dubbed the ‘golden

window’ for expanded global HIV/AIDS medicines access. However, this ‘window’ has also been cri-

tiqued as an unsustainable aberration to a continuing hegemonic regime that prioritizes patent

protection, to the detriment of equitable global medicines access. This paper draws on both politi-

cal economy analyses and discourse theoretical concepts to examine the processes of rupture and

suture in HIV/AIDS medicines access discourse.

KEYWORDS HIV/AIDS; Big Pharma; intellectual property; medicines access; newsmedia; discourse theory; political economy; counter-hegemony; dislocation; civilsociety organizations

Introduction

The dispute over patent protection and access to HIV/AIDS medicines has emergedas the ‘most critical international AIDS story of our time’ (Russell, 2003, p. 38), and a ‘totemicproblem in global health’ (Williams, 2012, p. S127). At its core, the dispute concerns the pol-itical economy of HIV/AIDS medicines: the modes of production of brand-name andgeneric medicines; the trade rules governing medicine monopolies; and the influence ofcorporate and civil society lobbying upon global policy-making (Richards, 2004; Shadlen,2007). In addition, the dispute has been identified as an exemplary case of discoursechange, where rhetorical strategies have been deployed to construct, contest, and maintainthe economic policy conditions shaping medicines production and distribution (Owen,2013; Sell & Prakash, 2004).

Laclau and Mouffe’s (1985, 1990) discourse theory is a poststructuralist approach topolitical analysis that both collapses the distinction between ’material’ and ’discursive’processes, and provides a set of conceptual categories specifically attuned to analysingdiscourse change. For this reason, it has been selected as an appropriate theoretical lens

Critical Discourse Studies, 2014Vol. 11, No. 3, 288–304, http://dx.doi.org/10.1080/17405904.2014.915860

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to examine the HIV/AIDS medicines access/patent protection dispute. In line with the focusof the themed section, this paper applies a discourse theoretical analysis to news coverageof the HIV/AIDS medicines crisis – in order to consider the added value of discourse theoryfor critical analyses of contemporary capitalism.

In the early 2000s, the dispute over global HIV/AIDS medicines access revolvedaround a central antagonism between a transnational coalition of civil society organiz-ations (CSOs) and the major multinational pharmaceutical companies producing HIV/AIDS medicines. For the CSOs – known as the ‘Access to Medicines’ campaign – patentprotection rules were the major impediment to equitable global HIV/AIDS medicinesaccess (Mayne, 2002; Sell, 2001). The CSOs argued that quality generic antiretrovirals(ARVs) could be cheaply produced, but that patent protections blocked access to genericsand thus maintained pharmaceutical companies’ high prices and monopoly control(Mayne, 2002).

For the pharmaceutical companies, on the other hand – known collectively as ‘BigPharma’ – strong patent protection was necessary to recoup the extraordinary costsrequired for ARV research and development (PhRMA, 1999). For Big Pharma, it was notpatents that restricted medicines access, but rather the much larger problem of majorityworld poverty (Warner et al., 2002). Over the 1980s and 1990s, Big Pharma’s strongpatent protection discourse was institutionalized through the World Trade Organization’s(WTO) Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, andthrough ‘extra-institutional pressures’ from the US government encouraging othercountries to go beyond TRIPS requirements (Shadlen, 2004, p. 80). In the late 1990s andearly 2000s, the ‘Access to Medicines’ campaign articulated a counter-hegemonic discourseseeking to destabilize Big Pharma’s dominant patent regime.

This paper examines the processes of rupture and suture in HIV/AIDS medicinesaccess discourse surrounding the central antagonism. In discourse theory, discourses,regimes, and identities are inherently unfixed and incomplete: subject to constantchange and reformation in relation to a social terrain criss-crossed by antagonisticallyopposed political projects (Howarth, 2000; Laclau & Mouffe, 1985). The central antagonismbetween Big Pharma and the ‘Access to Medicines’ campaign exemplifies such contesta-tion, pitting two competing reality definitions against each other over the very nature ofthe medicines access crisis. Discourse theory’s focus on discursive change and contestationhas seen it adopt and modify various conceptual categories specifically attuned to exam-ining discourse change. Such categories – for instance, those applied in this paper: reacti-vation, sedimentation, dislocation, constitutive outside, gentrification, and floating signifier– articulate discourse theory’s ‘ontology of lack’ (Marchart, 2005), where the goal of analysisis not to identify positive ideological forms, but rather to examine the points where dis-courses, regimes, and identities are ruptured, and how such rupture then impacts uponthem.

This primary focus on change has seen discourse theory criticized for over-emphasiz-ing discursive fluidity, and thus under-theorizing the perseverance of certain hegemonicstructures (Chouliaraki & Fairclough, 1999). This paper, however, understands discoursetheory as a theory of discursive change in constant tension with discursive stability. That is,while rupture – or dislocation – is an inherent condition of discourses, the fact ofrupture does not automatically translate into radical transformation. Rather, dislocations

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may be closed, or sutured, by radical projects; or indeed by conservative ones seeking to re-establish the pre-existing hegemonic regime – a process Glynos and Howarth (2007) referto as ‘gentrification’.

In relation to HIV/AIDS medicines access, this paper argues that while Big Pharma’shegemonic regime was ruptured by the CSO campaign over 1999 –2001, the dislocationwas also subsequently gentrified by a re-configured version of Big Pharma’s pro-patent/anti-generics discourse. To make this argument, the paper first presents a broad outlineof discourse change in the medicines access dispute, drawing upon insight from past ana-lyses of the political economy of HIV/AIDS medicines. It then presents its own contribution,deploying discourse theoretical categories to describe the processes of rupture and suturein HIV/AIDS medicines discourse. Empirically, the paper draws on insights from a corpus-assisted discourse analysis of a sample of 747 newspaper articles, collected through akeyword search for ‘AIDS drugs’ in the Factiva database from the outlets The New YorkTimes, The Washington Post (USA), The Guardian, and The Times (UK) across the years1997–2003. While statistical data and interpretative analysis of this sample are presentedelsewhere (Owen, 2013), this paper uses examples from the sample to illustrate its dis-course theoretical analysis.

Finally, the paper discusses the implications of this approach for the expandingunderstanding of discourse change and the political economy of global HIV/AIDS medi-cines access. In this sense, the paper affiliates itself with the pragmatic articulation of dis-course theory and political economy found in de Goede (2006). That is, the goal here is notto render commensurate the ontological differences between political economy and dis-course theory, but rather to deploy discourse theoretical categories in order to contributenovel insight into past analyses of the medicines access crisis. While such pragmatic analy-sis inevitably risks re-inscribing the material/symbolic binaries that discourse theory cri-tiques, such risk is here conceded and identified as a liability worth assuming in pursuitof the novel insight discourse theoretical categories may garner. In this regard, thepaper builds upon current understandings by identifying the internal processes of dis-course change and stability operating within the evolving conditions of global HIV/AIDSmedicines production. The paper will now outline such conditions, as articulatedthrough prior scholarship.

Discourse Change and the Political Economy of HIV/AIDS MedicinesAccess

Several past studies have illuminated the complex evolving set of factors shaping thepolitical economy of global HIV/AIDS medicines access and patent protections (Drahos &Braithwaite, 2002; Halbert, 2005; Klug, 2008; Richards, 2004; Sell, 2003; Sell & Prakash,2004; Shadlen, 2004, 2007). Taken together, the collected insights of these studies tell astory of discourse changes revolving around three critical transitions. The first transitioninvolved the shift in patent governance from the United Nations to the WTO’s multilateraltrade forum (Sell, 2003). This shift was built around a large-scale change in the discursive con-notations of patent protection – from their historical identity as a protectionist monopolyprivilege (Machlup & Penrose, 1950) to a new justification of patents as an intellectual prop-erty ‘right’, and cornerstone of the neoliberal free-trade agenda (Drahos & Braithwaite, 2002).

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The second transition involved the ‘Access to Medicines’ campaign’s counter-hegemonic contestation of the strong patent regime. When Big Pharma companies suedthe South African government to prevent access to generic ARVs in 1998 –2001(Barnard, 2002), ‘Access to Medicines’ CSOs widely publicized the lawsuit as exemplary evi-dence of patent protections’ negative impact on global access to HIV/AIDS medicines(Mayne, 2002). The lawsuit became a focal point for media coverage of medicines accessand global HIV/AIDS in general (Owen, 2013), resulting in an ‘avalanche of negative pub-licity’ (Barnard, 2002, p. 159) and ‘public relations disaster’ for Big Pharma (Kennedy,Harris, & Lord, 2004, p. 131). Big Pharma’s pro-patent/anti-generics discourse was destabi-lized, marking the point where Big Pharma seemingly ‘lost control’ of a discourse it haddominated since the 1980s (Halbert, 2005, p. 97).

In the wake of the South African lawsuit, the WTO clarified the right of countries toaccess generics (’t Hoen, 2009), generic ARVs entered the market (Medicins Sans Frontieres,2005), global ARV prices dramatically fell (Schwartlander, Grubb, & Perriens, 2006), majordonor organizations began bulk-purchasing affordable ARVs (Shadlen, 2007), and millionsmore people in majority world countries began receiving treatment for HIV/AIDS (WHO/UNAIDS, 2006). The period 2001 –2003 thus marked a reconfiguration of HIV/AIDS medi-cines’ political economy, opening the global ARV market to generic competition andmajor donor agency customers. Commentators subsequently referred to the period asthe ‘golden window’ in global medicines access (McNeil, 2010, p. 1).

The third transition involved the emergence of a multifaceted ‘pro-access’ globalgovernance structure, where CSOs, nation-state governments, supranational organizations,Big Pharma companies, and major donor funds, such as the Global Fund and Clinton Foun-dation, collaborated to continue the successful expansion in global HIV/AIDS treatment(Williams, 2012). For several commentators, however, the approach of this governancenetwork moved increasingly towards providing medicines access through price discountsand foreign aid, and away from intellectual property-based mechanisms, such as generics(Klug, 2008; Shadlen, 2007; Williams, 2012). While generic medicines, predominantly fromIndia, constituted the vast majority of ARVs reaching the majority world, the ability ofcountries to continue producing generics was threatened through increased patent pro-tections in so-called ‘TRIPS-Plus’ bilateral and regional free-trade agreements (Baird,2013). This situation, it is argued, has resulted in an ‘unsustainable stalemate’ (Klug,2008, p. 207) and ‘treatment timebomb’ (Oakeshott, 2009, p. 1) for global HIV/AIDS medi-cines access, where future ARV access is precariously reliant on dwindling aid money andBig Pharma charity (Medicins Sans Frontieres, 2010). The third discursive transition has thusrevolved around the re-establishment of the strong patent protection hegemony and neu-tralization of the counter-hegemonic ‘Access to Medicines’ challenge (Williams, 2012).

Given these identified processes, the HIV/AIDS medicines access dispute thusinvolves multiple themes and angles, including discourse change; a public relationsvictory for CSOs over their corporate rivals; the partial but limited realization of acounter-hegemonic challenge; and a case where discursive logics were institutionalizedwithin changing medicines access regimes. The dispute is therefore an ideal candidatefor discourse theoretical analysis of discourse change, hegemonic contestation, and perse-verance; for an analysis of mainstream news media and non-institutional voices of dissent;and – to invoke a traditional but hardly unproblematic binary – for an examination of the

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relationship between the ‘material’ political economy of medicines access and the ‘sym-bolic’ aspects of discourse change. In line with the focus of this themed section, thispaper now focuses on the first of these – deploying discourse theoretical categories toexamine the processes of rupture and suture in HIV/AIDS medicines access discourse.

Discourse Theoretical Analysis

Discourse Rupture: Reactivation

For Laclau and Mouffe’s (1985) discourse theory, as with several other poststructur-alist approaches, discourses are understood as inherently incomplete and precarioussystems of meaning. In this conception, the meanings that constitute our world arenever absolute, and are constantly open to the possibility of change. At the same time,however, discourses do not operate within a context of no fixation at all, but rather are con-stituted in ‘relative structuration’ vis-a-vis an evolving architecture of variously institutiona-lized hegemonic regimes (Laclau, 1990, p. 43). The goal of discourse theoretical analysis,therefore, is not to simply describe positive ideological forms, but to identify where suchforms are ruptured, and how the realization of rupture variously impacts upon their relativestability and perseverance. In this regard, discourse theory has adopted and modified avariety of conceptual tools.

For instance, to help describe the relationship between discursive change and stab-ility, Laclau and Mouffe (1985) draw on Husserl’s (1970) concepts of sedimentation and reac-tivation. In the first case, sedimentation is when the ontological condition of rupture iseffectively concealed; that is, when a discourse veils its own incompleteness, andinstead presents itself as a complete and self-evident ‘objectivity’. In Laclau’s (1990)words, it is when ‘an act of institution has been successful’ and ‘the system of possiblealternatives tends to vanish and the traces of the original contingency to fade. In thisway, the instituted tends to assume the form of a mere objective presence’ (p. 34). Asdiscourses can never fully capture the total abundance of all possible meaning, discursiveformation inevitably involves the exclusion of potential elements. Sedimented discoursesconceal this act of exclusion, thus concealing their own contingency, and the ‘originaldimension of power’ that formed them (Laclau, 1990, p. 34, emphasis in original).

‘Reactivation’, on the other hand, is the remembrance that other historical possibili-ties were viable, and thus the rediscovery of the contingent nature of the ‘objective’ dis-course. To use Foucauldian terms, while sedimentation ‘forgets the origins’, reactivation‘recalls’ them and renders them explicit once again. As such, reactivation highlights theinherently unstable nature of the given discourse and points the way towards discoursetransformation – for ‘if social relations are contingent, it means they can be radically trans-formed through struggle, instead of that transformation being conceived as a self-transformation of an objective nature’ (Laclau, 1990, pp. 35–36).

For global HIV/AIDS medicines, a moment of reactivation occurred in June 1999when the factors of patents and generics were introduced to news media representationsof HIV/AIDS medicines, thus revealing the contingency of Big Pharma discourse. Over the1980s and 1990s, Big Pharma’s strong patent protection discourse was sedimented withinglobal patent rules and US foreign policy (Halbert, 2005; Richards, 2004). This hegemonic

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configuration excluded generic medicines as an illegitimate pirate threat (Weissman, 1996),and denied the relevance of patent protection upon medicines access (Owen, 2013). From1997 to mid-1999, mainstream news coverage in the ‘AIDS drugs’ sample reflected thisabsence. Of 112 ‘AIDS drugs’ news articles published over the 29 months January 1997to May 1999 in The New York Times, Washington Post, Guardian, and Times, only threerefer to patents or other intellectual property concerns.1 In all three cases, patents arereferred to only insofar as they relate to industry profits, while HIV/AIDS medicines are cele-brated for their novelty and effectiveness. Similarly, generic medicines are referred to inonly two articles over this period.

In June 1999, however, this pattern changes, with patent and generic concernscoming to feature prominently in ‘AIDS drugs’ articles. In the seven months June to Decem-ber 1999 the linguistic signifiers ‘patent’ and ‘intellectual property∗’ appear in 17 out of 28articles (constituting 60.7% of all ‘AIDS Drugs’ articles for this period), while the signifier‘generic∗’ appears in 7 of 28 articles (25%). In short, something happens in June 1999 toelevate the key contested factors of patents and generics from a marginal to a central pos-ition in HIV/AIDS medicines discourse.

Turning from linguistic statistics to an interpretative reading of the news texts, thecatalyst for this June 1999 elevation is clear: protests against US Vice-President Al Goreby the ‘Access to Medicines’ CSO, ACT UP (see, for instance, The Washington Post, 1999).While coverage initially mentions the small group of protesters as a side story to thelaunch of Gore’s Presidential campaign (for example, in Seelye, 1999), over June, July,and August, the continuing protests themselves become a main story (for instance, inAyers, 1999; Babcock & Connolly, 1999; Borger, 1999). Within the protest coverage,issues surrounding the South African lawsuit, generics’ legality, US pressures on foreigncountries over medicine patents, and the emerging ‘Access to Medicines’ campaignbegin to be represented in the news sample. Importantly, such issues remain in the‘AIDS drugs’ news sample after the protests themselves have ended.

In this way, the strong patent protection discourse was reactivated. Generic medi-cines and patents’ relevance to medicines access were historical options that wereexcluded in the formation of Big Pharma’s hegemonic discourse. With the institutionaliza-tion of the discourse through TRIPS and the US government trade policy, the possibility ofthese historical options was concealed, and the strong patent protection regime was pre-sented as a stable totality. On the back of the anti-Gore protests, however, the excludedhistoric elements were explicitly represented in news coverage, thus signalling the ‘remem-brance’ of the initial institution of power, revealing the contingency of the hegemonic dis-course, and opening the opportunity for counter-hegemonic discourse change.

Discourse Rupture: Dislocation

Where coverage of the 1999 protests provided glimpses of concealed historic alterna-tives, early 2001 mainstream news coverage provided explicit articulations of the alterna-tives, juxtaposing them against the Big Pharma hegemonic project and thus renderingthe underlying ontological condition of dislocation ontically manifest. At the centre ofthe early 2001 coverage was the legal challenge between Big Pharma companies andthe South African government over legislation allowing generic medicines importation.

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When the challenge went to court in March and April 2001, the trial dates corresponded tothe highest levels of the USA, UK, and South African HIV/AIDS medicines newspaper cover-age from 1997 to 2003 (Owen, 2013), as well as the highest levels of general HIV/AIDS cov-erage in US news since 1993 (Brodie, Hamel, Brady, Kates, & Altman, 2004). Furthermore,the increased coverage produced at this time was characterized by a dominant focus onpatents, generics, and trade concerns (Owen, 2013). In short, the trial provided a ‘newspeg’ upon which to ‘hang’ coverage of the patents/medicines access dispute and, thus,a forum for public representation of the very elements Big Pharma discourse sought toexclude and conceal.

For instance, as demonstrated elsewhere (Owen, 2013), expanded coverage sur-rounding the trial provided space for the explicit discussion of generics as a solution tothe medicines crisis. While some coverage continued to deploy a ‘piracy’ metaphor toconnote generics’ criminality (for instance, in Dynes, 2001), other coverage challengedthis connotation (for instance, in McNeil, 2000). Indeed, at the height of publicity surround-ing the trial, generics were characterized as the ‘heroes’ of the HIV/AIDS medicines accessdispute (Zuger, 2001, p. F7). In this sense, generics may be considered as the ‘constitutiveoutside’ to the Big Pharma discourse. Over the 1980s and 1990s, generics were situated asthe criminal menace challenging economic wellbeing (Weissman, 1996). Through WTOrules and diplomatic pressures, the viability of generic ARVs to address global HIV/AIDSwas suppressed (Shadlen, 2004). In short, generics marked the frontiers of the hegemonicdiscourse and the limits of acceptable practice. However, constitutive outsides do not onlystabilize discourses by delimiting the margins; they also threaten discourses’ stabilitythrough the constant possibility of return (Laclau & Mouffe, 1985). Through the 1999 reac-tivation and 2001 dislocation, generics indeed returned from the margins, explicitly enter-ing public representations of medicines access discourse, and thus rupturing the existinghegemonic regime.

Similarly, in the 2001 expanded news coverage, the role of patent protections asimpediments to medicines access became overtly addressed – for instance, in The Guar-dian’s proclamation: ‘Put baldly, patents are killing people’ (Bunting, 2001, p. 19). Surround-ing the South African conflict was the broader antagonism between the ‘Access toMedicines’ campaign and Big Pharma over the very definition of the medicines accesscrisis. For the CSOs, patents were the major impediment to medicines access in the majorityworld (Mayne, 2002; Sell, 2001). For Big Pharma, poverty was the major impediment(Warner et al., 2002). In 2001, as the CSO campaign’s patent critique became morewidely articulated, the contestation between reality definitions itself became the news-worthy hook – most explicitly in a New York Times article headlined: ‘Patents or poverty?New debate over lack of AIDS care in Africa’ (McNeil, 2001, p. 6).

Such explicit surface representation of the underlying ontological dislocation pro-vides an example of what Marchart (2011) calls ‘mediality’. Building on Laclau’s distinctionbetween ‘politics’ and the ‘political’, Marchart argues for a distinction between ‘media’and ‘mediality’ – where the former describes the practices and apparatuses giving rep-resentation to objects, while the latter describes the always-already dislocated nature ofany possible representation. For Marchart (2011), it is in moments of mediality, wherenormally closed media discourses become ‘touched by the mediality of antagonism’(p. 78), that news media come closest to fulfilling their democratic potential as sites

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for the contestation of diverse public voices. In coverage surrounding the South Africantrial, mediality became a condition of journalistic production as the articulation of alterna-tive counter-hegemonic discourses ruptured and dislocated the dominant Big Pharmahegemony.

Discourse Suture: Gentrification

The 2001 news media discourse changes outlined above were constitutivelyembedded within a wider set of changing social practices for global HIV/AIDS medicinesaccess. In the face of negative publicity surrounding the South African trial, Big Pharmacompanies cancelled their lawsuit (Barnard, 2002). In November 2001, the WTO producedthe Doha Declaration, clarifying the rights of countries to access generic medicines (’t Hoen,2009). Also in 2001, the WHO instigated a pre-qualification mechanism certifying selectedgenerics’ quality, and major global funders – initially reluctant to purchase generics –began bulk-buying generics for treatment in majority world countries (Schwartlanderet al., 2006). These combined moves created a global market for generic HIV/AIDS medi-cines, facilitating a dramatic fall in brand-name ARV prices from up to US$20,000 perpatient per year pre-2001 to US$350 by late 2001 and US$168 by 2004 (Schwartlanderet al., 2006).

By the end of the 2000s, however, the sustainability of the successful expansion inARV treatment came into question as commentators began to speak of a ‘treatment time-bomb’ (Oakeshott, 2009, p. 1) and ‘unsustainable stalemate’ in affordable HIV/AIDS medi-cines access (Klug, 2008, p. 207). Such concerns were based on the continued trade-relatedpressure against generics manufacture – a force rendering future supply of affordablesecond-line ARV treatment in doubt (Klug, 2008; Shadlen, 2007). For instance, while WTOrules clarified the right to access generics through TRIPS, so-called ‘TRIPS-Plus’ require-ments in subsequent bilateral and regional free-trade agreements effectively impededcountries’ abilities to action this right (Baird, 2013).

In light of these developments, it appears that the 1999–2001 counter-hegemonicchallenge to the patent regime did not substantially disrupt the pro-patent status quo.Dual processes ensued following the 2001 dislocation: on one hand the proliferation ofgeneric ARVs for majority world treatment and on the other the prohibition of genericsthrough ‘TRIPS-Plus’ measures. While both processes contested each other in a complexglobal balance, recent ‘treatment timebomb’ concerns suggest the latter tendency domi-nated. In this way, while hegemonic discourse was ruptured through the 1999 reactivationand 2001 dislocation, these openings did not translate into sustained counter-hegemonicdiscourse change. Instead, with the continued dominance of the strong patent protectionregime, the ruptures were effectively neutralized or absorbed back into the pre-existinghegemonic regime. For Glynos and Howarth (2007), such a process is known as gentrifica-tion. Elaborating on discourse theory’s tension between discursive change and stability,they note that while dislocations may engender structural change, this is not necessarilythe case. As they put it: ‘the way the dislocation is constructed and enacted does notfollow from the simple fact of dislocation. It may be gentrified (or absorbed) by an existingsocial practice or regime, or it may provoke a political practice’ (Glynos & Howarth, 2007,p. 112, parentheses in original).

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Returning to the media sample of ‘AIDS drugs’ articles, this paper will now illustratetwo indicators of this gentrification – that is, two discursive processes evident in the newstexts that suggested, even surrounding the 2001 dislocation, an absorption of the counter-hegemonic challenge back into the pre-existing ideological regime. The first processinvolves the conflation of patent reform with price discounts – a move that detached‘price’ as a floating signifier, and which was then used to neutralize the ‘Access to Medi-cines’ campaign’s counter-hegemonic challenge. The second process involves the natural-ization of generics as fundamentally outside the patent rules, despite their legaljustification. Both of these processes reformulated the nature of the medicines accesscrisis and its possible solutions. In this way, they express the project to appropriate thecounter-hegemonic challenge’s demand for structural change and to suture the crisisthrough deeply sedimented ideologies of minority world charity and majority worlddependence.

Floating Signifiers: Conflation of Patents with Price

Until the 2001 dislocation, Big Pharma companies were conspicuously reluctant tooffer tiered pricing or discounts on HIV/AIDS medicines to majority world countries.Even when five companies partnered with five supranational institutions in May 2000 tonegotiate discounts, discussion of specific discount figures was forbidden (Gellman,2000). In 2001, however, the dislocation of HIV/AIDS medicines discourse was so overtthat new attempts were required to address the void and suture the rupture. Price dis-counts were one such attempt. However, in order to successfully suture the openedspace, price discounts first needed to be positioned as a solution to the specific patents/medicines access crisis and the counter-hegemonic patent critique from the ‘Access toMedicines’ campaign. This positioning is apparent through the discursive strategy to con-flate prices with patents in articulations of the crisis.

For instance, as a Washington Post editorial stated in May 2000:

... the pharmaceutical firms ought to concede that AIDS is an exceptional disease and that

this justifies a limited weakening of intellectual property rules that does not compromise

the larger framework of regulation. One pharmaceutical firm, Pfizer, has in effect accepted

this. After coming under pressure from development groups, it agreed to sell an AIDS

drug in South Africa at a price that reflected the cost of production rather than that

cost plus the value of its patent. (The Washington Post, 2000, p. A18)

In this articulation, while the suggestion is for a ‘weakening of intellectual propertyrules’, the example given is simply a price discount. That is, the only ‘weakening’ pertainsto the dollar value the monopoly-holding company has set for the product, while thepatent ‘rules’ are left intact. Furthermore, by conjuring ‘pressure from developmentgroups’ as a catalyst for the discount, the presupposition is that this is what the groupswere seeking. In this way the demand for patent moderation from the ‘Access to Medicines’campaign is re-articulated as a demand for discounts, thus effectively excluding the patentcritique from the dispute.

Similarly, a further 2002 Washington Post editorial’s retrospective reference to theSouth African trial claims that the pharmaceutical industry ‘has abandoned that litigation

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and embraced the idea that an extraordinary health crisis requires an extraordinaryresponse. It has begun to discount its drugs for Africa’ (Mallaby, 2002, p. A19). In thisway, discounts are constructed as a novel and extraordinary response to the intellectualproperty/medicines access dispute. Similarly, another editorial published on the eve ofthe Doha Ministerial, and after the US government considered licensing generic copiesof anti-anthrax medicines, argues that: ‘AIDS activists are still complaining that, in pressur-ing the maker of anthrax-fighting Cipro to reduce prices, the United States is hypocritical’(The Washington Post, 2001b, p. A28, emphasis added). Here, the US government’s con-sideration to license generic copies for Cipro is elided with discounting Cipro. Indeed,this statement is supported by an earlier claim in the editorial qualifying the dispute asabout drug pricing all along: ‘these [discounts] ought to be enough to silence the contro-versy on drug pricing that has consumed the AIDS debate’ (The Washington Post, 2001b,p. A28, emphasis added).

When Big Pharma began articulating drug discounts as a solution to the patent pro-tection crisis, ‘price’ became a ‘floating signifier’ (Laclau, 2005) – its meaning indeterminatebetween the two rival hegemonic projects. ‘Access to Medicines’ discourse identified priceas an impediment, but price’s intrinsic relationship to Big Pharma monopolies saw it sub-sumed within the broader demand for patent moderation. Big Pharma’s articulation of‘price’, on the other hand, dis-embedded price from patent protection, and instead posi-tioned it as a solution to the medicines access/patent protection crisis.

De-Legitimizing Generics and Compulsory Licensing

The conflation of prices with patents was superficial, and concealed the underlyingconcern that stronger patent protections suppressed majority world autonomy to addresspublic-health crises. Where moderated patent systems and generics manufacture hadfacilitated greater public-health self-determination in Brazil (Galvao, 2005) and India(Menghaney, 2006), price discounts only consolidated the power to address the globalaccess crisis within minority world companies, with foreign aid funding consolidating itwithin minority world governments. In this sense, a ‘discounts + aid’ solution to the medi-cines access crisis encoded a ‘charity’ discourse, one relying on philanthropy rather thansovereignty, and thus one that coalesced well with Big Pharma’s ‘poverty’ definition ofthe crisis. Another way such a ‘charity discourse’ was enacted was through the character-ization of generics as a charitable exception to the patent rules, rather than as a routine partof them.

For instance, one of the Washington Post editorials referred to above explicitly advo-cates compulsory licensing – a measure to access generics – and criticizes the pharma-ceutical lobby for blocking it in free-trade deals. However, the editorial also describesthe practice as a ‘limited weakening of intellectual property rules’ (The Washington Post,2000, p. A18, emphasis added) and as an ‘erosion’ of patent protections. In further editorialsthe same presupposition is reproduced with claims that in order to access generics, thepatent rules must necessarily be ‘diluted’ (The Washington Post, 2001a, p. B06), ‘relaxed’,or ‘loosened’ (Mallaby, 2002, p. A19). Such articulations imply that patent rules, in theirnatural state, do not include generics, and that it is only through a degradation, lessening,or deviation from the rules that such measures can exist. Such a construction conceals the

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fact that generics and compulsory licensing have been a routine aspect of US patent policysince the 1950s (’t Hoen, 2009).

To return to the May 2000 editorial cited above, India’s experience is conjured:

[Pharmaceutical firms] are right that in the absence of an intellectual property regime,

innovation would dry up and everyone would suffer. Moreover, it is not just rich countries

that have a stake in protecting the value of ideas. Developing countries such as India,

which has burgeoning software and movie industries, need intellectual property law

also. (The Washington Post, 2000, p. A18)

In this articulation, the total absence of a patent system is positioned as the onlyalternative to the strong US-style protection under question. In this way, Big Pharma’s‘absolutist’ discourse – as identified by Halbert (2005) – is reproduced, where a falsedichotomy posits the only possible positions as for or against strong patent protection.In this regard, India provides a striking contradiction, for India has had patent legislaturefor over a century, that, from the 1970s until recently, has maintained a differentiatedpatent system, allowing for generic pharmaceuticals and fostering great innovationwithin the domestic pharmaceutical industry (Menghaney, 2006). By implying theabsence of any patent system, and then suggesting the need for one in India’s case, theeditorial conceals the historic option India has pursued, thus further excluding genericsfrom legitimate patent policy.

It is important to note that it was not just in The Washington Post that such con-tinued generics de-legitimization occurred. The Guardian was the most explicit newsoutlet in this sample supporting the ‘Access to Medicines’ campaign and promoting apro-generics discourse (Owen, 2013). However, even in the Guardian, generics provisionsare qualified as an ‘exemption’ to TRIPS, with the Doha Declaration purportedly allowing‘developing countries to ignore patents and buy generics’ (The Guardian, 2003b, p. 4,emphasis added). Furthermore, the generics industry is described as ‘the companiesbased in India, Thailand, Brazil and other countries without as yet any patent system –which make a living from copying brand-name drugs and selling them at cut prices’(The Guardian, 2003a, p. 4, emphasis added). As in The Washington Post editorials,India’s century-old patent system is concealed and Halbert’s (2005) ‘absolutist’ dichotomyreproduced.

These articulations are a few among several in the ‘AIDS drugs’ sample that evi-dence the naturalization of generics’ de-legitimization, and the deep encoding of acharity discourse that presupposes majority world inferiority, and thus oppresses majorityworld sovereignty. While the news coverage suggests this feature, it is only in light ofsubsequent historical developments that the suturing of the 2001 dislocation becomesclear. The 2001 –2003 expansion of global HIV/AIDS medicines access suggested thatBig Pharma’s anti-generics discourse had been overturned. However, the ‘treatment time-bomb’ critique a decade later suggests this was not so. Rather, while a viable genericsmarket facilitated the decreased price and increased accessibility of ARVs, the continuedsubordination of generics rendered the sustainable future supply of medicines precar-iously reliant on foreign aid and discounts (Klug, 2008). In this sense, it was a charity dis-course, not a sovereignty one, that dominated post-‘golden window’ and gentrified the2001 dislocation.

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Discussion

The HIV/AIDS medicines access and patent protection dispute illuminates the centralconcerns of critical political economy: where market conditions, policy regulations, andspecial-interest influences shape the modes of production and (unequal) distribution inaccess to objects of consumption. At the same time, the dispute also demonstrates therole of symbolic factors in constituting the conditions of possibility for HIV/AIDS medicinesproduction. In this sense, the political economic conditions determining medicines accessare discursive, insofar as it is only through discourse that they may be governed, contested,politicized, reformed, and, indeed, rendered possible as social phenomena to be contem-plated. As de Goede (2006) notes: ‘it is precisely the discursivity of economy that makespossible a radical political economy’ (p. 7). Or rather, it is the essential discursivity of theeconomy that makes it political, where symbols, ideas, metaphors, and so on constituteboth the hegemonic conditions of economic production and the counter-hegemonic chal-lenges seeking to disrupt them.

This idea of a discursively constituted economic reality is displayed throughout theglobal HIV/AIDS medicines access transformations discussed in this paper. The initial BigPharma-initiated strong patent protection agenda was built upon the discursive linkingof patent protection to general economic prosperity, and the identification of animmoral threat – generic ‘piracy’ – against which the new regime defended. This discoursewas successfully sedimented and institutionalized through WTO policy. The consequenceswere greater monopolies for HIV/AIDS drugs, sustained high prices, and the exclusion ofgeneric competition from the market. In 2001, a counter-hegemonic challenge was suc-cessfully articulated in mainstream media to publicly rupture the strong patent regime,highlighting the negative impact of patents on medicines access, and elevating genericsas a legitimate solution to the crisis. The consequences were the official legitimization ofgenerics, a competitive global marketplace for ARVs, dramatically reduced prices, andmassive increases in access to ARV treatment in the majority world. Most recently, thecounter-hegemonic patent critique has been gentrified, neutralized, and absorbed backinto the strong patent protection hegemony, with patent moderation conflated withprice discounts, and generics further delegitimized as a charitable exception to officialpatent rules. The consequences are a precariously insecure contemporary global treatmentinfrastructure, built upon dwindling aid and unreliable charitable discounts, with the possi-bility of a sustainable self-determined generics market continually suppressed. At eachturn, the economic conditions of medicines access have been discursively produced, con-tested, and reformulated.

These transitions also demonstrate how the past 15 years of global HIV/AIDS medi-cines access have been characterized by discourse change. For this reason, Laclau andMouffe’s discourse theory provides a useful lens through which to examine the crisis.Discourse theory presupposes precarious contingency in all discourses, identities, andregimes, meaning that it has adopted and developed specific conceptual tools toexamine how discursive change occurs, what enables it, and what limits it. In addition, dis-course theory presupposes a social terrain criss-crossed by antagonisms, as articulated byopposed political projects. Thus, discourse theory is specially attuned to examine not justhow discourses change, but how such change is influenced by contingently situated social

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actors. The major antagonism at the core of the HIV/AIDS medicines access disputeinvolved two competing frontiers from opposite ends of the financial power spectrum –pitting the world’s most profitable companies (Angell, 2004) against non-profit organiz-ations representing some of the world’s poorest and sickest citizens. Rather than assumea foregone conclusion where financial power determines discursive power, discoursetheory focuses on the dynamics of contestation between hegemonic and counter-hege-monic projects, whose relative dominance is partial and inherently unstable.

As this paper demonstrates, the discourse theoretical lens – in particular the cat-egories of reactivation, dislocation, constitutive outside, floating signifiers, and gentrifica-tion – provides added value to the already considerable insights from prior analyses ofthe HIV/AIDS medicines crisis. For instance, discourse theory’s ‘ontology of lack’ (Marchart,2005) encourages examination of what elements are excluded in hegemonic formation,and an analysis of where these elements then sit along the margins of the discourse.Such a focus helps to identify the moments of reactivation in hegemonic discourse –for instance, in this study, where the excluded elements of patents and generics werere-introduced through the 1999 anti-Gore protests. Similarly, in the 2001 dislocation, afocus on the excluded elements helped to identify exactly where Big Pharma’s discoursewas ruptured, and thus where the discourse then needed to suture itself in order toregain a semblance of wholeness. Rupture through an ‘ontology of lack’ is productive, inthat it stimulates new discursive attempts to suture the opened space. In suchmoments, counter-hegemonic discourses have their greatest opportunity to achieve rep-resentation and ‘make sense of’ the dislocation – which is exactly what the ‘Access to Medi-cines’ counter-hegemonic project achieved in 2001, seeing its patent critique and pro-generics argument elevated as a legitimate agonistic contender within the mainstreamnews media coverage (Owen, 2013).

However, as Glynos and Howarth (2007) emphasize, just because hegemonic dis-course is ruptured does not mean it will result in radical counter-hegemonic transform-ation. Counter-hegemonic discourses may attempt to suture the opened space, but sotoo may established elite discourses consistent with the pre-existing hegemonic regime.In this sense, all the rupture provides is an opportunity, but various discourses thenmust compete to see which can best explain the rupture, and render themselves relevantupon the greatest surface of inscription. This paper argues that following the ‘goldenwindow’ period of an expanded generic ARV infrastructure, HIV/AIDS medicines discoursewas sutured by pre-existing hegemonic projects, effectively ‘gentrified’ and absorbed backinto a strong patent protection regime. As the textual analysis of news coverage suggests,such gentrification manifested through the discursive conflation of the patent critique withprice discounts, and through the extended delegitimization of generics as only allowablethrough charitable exception. Rather than be successfully naturalized as status quo inthe global ARV market, generics were instead naturalized as fundamentally outside of legit-imate practice, allowable only in special circumstances of minority world charity.

Conclusion

Building upon prior analyses of discourse change in HIV/AIDS medicines access, thisstudy deployed Laclau and Mouffe’s discourse theory, an approach that both claims to

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dissolve the material/symbolic binary and provides specific tools for analysing the relation-ship between discursive rupture and suture. Through such an approach, the paper illus-trated how the strong patent protection regime was reactivated and dislocated by acounter-hegemonic challenge, and ultimately gentrified by discursive processes consistentwith the prior hegemonic regime. In this way, the paper has adopted a pragmatic approachto discourse theoretical analysis and political economy, where, rather than attempt torender commensurate the ontological differences between the two approaches, thepaper has instead applied discourse theoretical categories in order to add value to past pol-itical economic insight. While such an approach risks re-inscribing the material/symbolicbinary that discourse theory attempts to dissolve, it also effectively sheds new lightupon the dynamics of change and stability, hegemony and counter-hegemony, which var-iously constitute the multiple crises of contemporary capitalism.

Funding

This work was supported by a scholarship from the Ryoichi Sasakawa Young Leaders’

Fellowship Fund.

Note

1. Based on a keyword search for ‘patent/intellectual propert∗’ within the Factiva ‘AIDS drugs’

sample.

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Thomas Owen is a Lecturer in the School of Communication Studies, Auckland University of

Technology (New Zealand). His research interests include hegemony, civil society, jour-

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Private Bag 92006, Auckland 1142, New Zealand. E-mail: thomas.owen@aut.ac.nz

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