Vecam

There is a cultural, political, and commercial battle raging behind the expression “intellectual property rights”. We live, after all, in a world where a few industrial groups from the countries of the North, which have effectively cornered the market in patents and licences, can impose limitations on the use of all kinds of works by others (the majority).

At the moment, the main trend is to try and reduce the complexity of “intellectual property rights” to their economic aspect only. This is why key talks take place under the auspices of the World Trade Organization (WTO) and not the United Nations Educational, Scientific and Cultural Organization (UNESCO) or the World Intellectual Property Organization (WIPO). Even the World Summit on the Information Society (WSIS) has avoided the subject, despite it being a major legal and social mainstay in the creation and transmission of knowledge. The situation is evolving, however, and many countries in the South are making a concerted effort to highlight their concerns in all the structures where intellectual property is under discussion. For instance, 15 countries have proposed that WIPO establish a “development agenda” [1], which is following the same trend as the action of bodies in civil society that would like to see a “treaty on access to knowledge” [2]. Likewise, the protection of “cultural diversity” has been defended in UNESCO through a refusal to align creative production on the rules of trade [3]. And open-source software, licences of the Creative Commons type, the defence of a global digital heritage and the central role of libraries in the movement of digital information are ideas defended in WSIS by both civil society and many developing countries.

What do “intellectual property rights” entail?

Intellectual property rights are a set of legal rules that may be invoked for the protection, compensation, and conservation of the rights attached to a “creative work” (invention, technical idea, artistic work, industrial design, trademark, and so on). They cover several sectors, mainly literary and artistic property (copyright) and industrial property (patents, trademarks, designs and models), but also, increasingly, regulations and treaties concerning indigenous and traditional knowledge, biodiversity, peasants’ rights and public health.

It is a recent desire dating from the 1980s which has led to these approaches converging in a single global framework dealing with all kinds of intangible works. The term “intellectual property rights” that is now widely used in law and global debate is the outcome of a political and economic choice that considers “intellectual property” as a “natural right”, like ownership of land and the means of production. In fact, this is contradicted by history and by an analysis of the drastic consequences this approach could have if it succeeds.

Intellectual property law has a long history. Ever since the 1710 Statute of Anne, a British law that was the first attempt at a copyright act [4], literary property was seen as a law to balance the interests of society (“the encouragement of learned men to compose and write useful books”, in the words of the Statute of Anne) with those of authors, who hold a monopoly on the exploitation of their works, which cannot be published or represented without their consent. However, there are numerous “exceptions and exemptions” in all the laws dealing with creative works. They are intended to defend society’s capacity to use the knowledge incorporated in the works and facilitate access to works and their movement: exceptions for education and libraries, the right of private use, quotation rights, right to caricature, right to transcription to encourage access by persons with disabilities, and so forth. It should be added that traditionally literary and artistic property concerns the form of the creative work and not the ideas contained therein. It encompasses not only original works of art and creative writing but also computer databases and programs.

This balanced relationship between creators and society is fully manifest in the existence of a “public domain” in which works are to be found after a certain period of time (at present, 70 years after the death of the author, 50 years after the first performance for musical performances, 20 years for patents after they have been issued, 70 years after they have been deposited for designs and models, and so on). This “public domain” is also added to by works created by public authorities (laws, reports, decisions, meeting reports, and so on), scientific discoveries and experimental data (including the decoding of the human genome and mathematical theories). Lastly, the concept of an “agreed public domain” has emerged, in which authors and creators themselves decide to place their works when they are created. This is for instance the case with open source software, Creatice Commons-like licences, deposits of scientific data, skills banks, open archives for the publication of science, and so forth [5].

The patents system, for its part, grants exclusive property rights to the subject of the patent, or, more precisely, over the “claims” ensuing from the technical description of the invention. This regime gives the patent-holder the moral right to prevent anybody else from using, making or selling the subject of the patent, or using the technique or process involved for a certain duration, in exchange for the inscription of the holder’s knowledge in a technical document. In the beginning patents were not intended to block access to knowledge but, on the contrary, to serve it. They enabled countries that were emerging at the time, such as the United States in the nineteenth century, to use already-existing, or “foreign” knowledge since patents must specify the countries in which they are applicable. So, then, patents were intended to stimulate creativity and inventiveness and are a privilege granted to individuals for the benefit of society.

The case for “patentisation” is not universally accepted. Current world trade talks aim to prevent developing countries from using this economic opportunity. The developed countries want to extend their own rules to cover the whole world [6], which raises a problem of balance for the countries of the South which do not have the necessary investment capacity in this race against the clock.

Intellectual property and networks and the digital world

Computers, and more broadly the digitization of culture and knowledge, on the one hand, and the networks that provide the capacity to move these digital objects rapidly on a global scale on the other, have raised a new challenge to the rules of intellectual property. How, on a global level, can a new balance be inscribed that enables creativity and innovation to be encouraged and at the same time ensures access by all to knowledge, and the global sharing of the benefits of research?

The new media that have emerged from information and communication technologies (ICTs) have led to an acceleration in innovation and the globalization of exchanges. Consequently, another approach is urgently needed, a new intellectual property right to set aside diktats from the industrial groups of the North. Intellectual property rights cannot only be seen as an extension of the monopoly to exploit a thought or creative work, but must take into account other interests. For instance, accelerated innovation in sectors such as information technology and biotechnology has accentuated divergences in the positions of the countries of the South and those of the North. Intellectual property rights must enshrine give the creator a right to ownership, but must also place limitations on it by means of obligations to users, in the name of the fundamental right to access to information.

In order to identify exactly what is at stake in the current debate, we must start with a clear idea of what is covered by the phrase “intellectual property rights”. The legal approach gives two types of vision: static and dynamic.

The first consists in being satisfied with heritage, traditions, and privileges [7]. Intellectual property rights are then a set of texts whose application leads to questions. Many established national, regional and international standards have been established, which are mainly intended to strengthen the monopoly on the works and inventions of authors, inventors, and more particularly the businesses that add value to and distribute the creative works. Does this tendency to issue laws to control the movement of knowledge, accentuated by the introduction of “digital rights management systems” (DRM) directly into digital documents, correspond to the current challenges of the information society? This western conception of the issue is contested by the countries of the South, victims of the “first come, first served” rule. Any act of creation involves upstream protection but it should be carefully measured and balanced so as not to hinder the production processes or access to information downstream.

The second, dynamic, vision consists in considering that intellectual rights should above all facilitate the expression of ideas, their circulation by means of ICTs and, eventually, their systematic reuse. The information society is changing the way works are created and, above all, transmitted. By opening up new perspectives through the broader dissemination of works, ICTs create new economic models on the one hand, and enable greater monitoring of use on the other, both for private individuals and for industries and developing countries. It is against this backdrop that the countries of the South are working to strengthen and expand the rights of users. They advocate inventiveness in the legal mechanisms to be introduced. Furthermore, they consider that it is not because a group of industrialized countries has a world monopoly on patents (97% of patents are filed by developed countries) that those countries should have the right to require developing countries to fall into line with their rules. This amounts to reproducing the domination by making these countries compete with a very heavy handicap to be admitted to the global system of exchanges. Martin Khor considers that in order to foster global access to knowledge, it is necessary to limit the “scope of copyright and patents in favour of consumers and the public interest” [8].

Developments in the market upsetting the balance

The ongoing controversy is caused by the attitude of a large number of lobby groups - those actively involved in creation and the new digital occupations [9] - which want to act on intellectual property rights. Their concerted action has led to the imposition of the idea that information is being commodified, a strictly economic vision of intellectual property [10]. This development is to the detriment of the common good of information and to the exceptions to use that promote the movement of knowledge. It also tends to expand constantly the field of intellectual property, going as far as to affect basic rules and sectors that are vital for all humanity (medicine, genetics, patenting living organisms, agricultural seed, traditional knowledge, geographical and botanical data, and so on). It gives issues related to intellectual property law new importance in the digital world, and more generally in the technologies of the information age.

The race to profit impels the industrial groups of the North to patent everything imaginable for the future. They thereby lock up technologies that are evolving whose finer details have often yet to be formalized. The descriptive part of patents then loses its usefulness in the transmission of technical knowledge. Patents are being used more to prospect untroubled in the future than to protect existing innovations. As a result, they limit research and development [11]. They also inevitably increase the flow of payments from the South to the North, in the form of royalties and compensation to patent-holders.

This approach has led to the multiplication of patents that are directly related to knowledge (algorithms and computer software, genetic sequences), forms of organization of the world (that are known as “method patents”), chemical molecules (and not only their production process), ancestral knowledge (biopiracy), plants [12], animals [13], and more broadly all living organisms. With the “patenting of living organisms”, which means giving a business or individual ownership of an element of a living organism, we can see an intellectually aberrant and humanly unacceptable version of intellectual property. It must be borne in mind that until the 1990s the patents system essentially concerned inanimate objects and mechanical processes [14].

By relying on the registration of such patents, transnational enterprises are trying to prevent the countries of the South from using knowledge to fight the calamities that befall them. The ultimate illustration remains the case brought by several multinationals in the pharmaceutical sector against the South African government when it tried to democratize access to treatment for people living with AIDS [15]. The exceptions that still exist in international treaties such as the WTO treaty, for instance on legal licences for medicines on public health grounds, are called into question at each round of talks, and dismantled indirectly in bilateral negotiations [16].

In the cultural field, there has even been an extension of the field of copyright beyond a balanced regime. New sectors are being eaten into (from scientific publications to teachers’ lessons), and mechanical productions are falling within the domain of copyright (for instance, automatic photographs, such as those taken by satellites, even though they are so useful in disaster prevention). Intermediary businesses, such as the media and scientific publishers, are relying on a one-way interpretation of copyright to add constraints on access to culture, in particular in schools, universities, and libraries.

This extension of property, in addition to the extension of the fields covered, follows two main lines: that of time (prolonging the duration of ownership) and that of use. With digital rights management systems or the “right of broadcasters” (broadcast flag), rights-holders want to be able to monitor the private use of digital documents, which is a serious threat to freedom of expression, private life, and human rights [17].
To date, all the capitalist mechanisms for the dissemination of information have aimed to create an artificial scarcity of information. It is a monopolizing strategy. However, in the field of knowledge, possession by one person in no way implies dispossession of others. It is quite possible to possess information and exchange it without losing it.

It is to seek a balance that takes account of this aspect of the nature of intangible goods that the action carried out by civil society, together with developing countries, is aimed so as to obtain a “treaty on access to knowledge” [18]. This would involve enabling all, in particular developing countries, to use the knowledge of humanity on order to deal with the evils of the twenty-first century. Constructing a universal public domain of information [19] is an urgent need, and technology now provides us with the conditions to make it a ¬reality. Legal and economic rules must enable it to become one.

The protection of intellectual rights cannot be allowed to be a handicap in a world where anyone can produce, exchange, and gain access to intellectual deposits and protected resources, that is, an open public domain of shared resources. This universal public domain of information presupposes a clear and precise definition of the acknowledged rights of both creators and users.

All inventions merit reward for the efforts invested. The countries of the South do not contest that fact. However, only inventions that are genuinely unique, new or creative warrant protection. Such an option would be a way of rewarding creation and innovation and not favour the holders of portfolios of property rights. The era of restrictions must be over because “the more people can freely access intellectual entities, the more capable and desirous they are of spending time in accessing and creating value entities” [20].

The reward must be the response to any innovative effort. However, not everything should be patentable. As a principle, any intellectual invention should be intended for the public domain, unless it is necessary to make possible its temporary appropriation and even then only when it does not lead to unacceptable discrimination. The attribution of a property right, for a fair price, must not be accepted unless the investment in question is significant to the exclusion of any systematic economic retribution.

The recognition of a primordial value of common information goods freely accessible and utilisable by all is far from being realized [21]. At the moment, the most visible example is still open source software. It is the only information social good that has reached maturity. Its use is gradually spreading, among private users as well as within the administrations and services of many countries and territorial collectivities. We must move faster and enable all to access other information sources. In order to do so, a solution would be to reduce the duration of ownership before moving to the public domain. The time has come to make it sufficiently short since accessibility is now so much easier and faster [22].

Rights are a formalization of social relationships. Accordingly, intellectual property rights are a political issue that must be discussed as such by governments and civil society. Given the importance of information for daily life, the education of future generations and sustainable economic development and the protection of nature, its protection must be ensured by states with the involvement of users and economic and scientific authorities. It is not the market that should lay down the law, and we cannot allow a situation to become established where a few large groups share all the knowledge of the world. Information societies will only be genuinely inclusive when a universal public information domain can work for the benefit of all. A genuine harmonization of intellectual property rights will come through an adjustment in the balance between owners and users and between developed and developing countries. Information must serve humanity, and knowledge remain the connection to development.