Intellectual Property can be defined as creations of human mind. Intellectual Property Rights are legal rights governing the use of such creations. The inventors are given certain monopoly rights for a specified time and in return the details of innovations are made public. It is generally assumed that IPR help to encourage invention and innovation and dissemination of knowledge.
The term IPRs covers a bundle of rights as patents, plant breeders’ rights, copyrights, trademarks and trade secrets each with a different purpose and effect. Copyright covers the expression of ideas such as in writing, music and pictures. Patents cover inventions, such as designs for objects or industrial processes. Trademarks are symbols associated with a good, service or company. Trade secrets cover confidential business information. A very recent addition - plant breeders’ rights - covers the area of production of new seeds and plant varieties.
IPRs are nothing more than state-mandated monopolies. The idea behind such rights is that the fundamentals of an invention are made public while the inventor for a limited time has the exclusive right to make, use or sell the invention. Discoverers and inventors are thought to deserve special reward or privilege because of the benefit of their discoveries or inventions to society. Public good is not considered a reward in itself, and therefore certain incentives are needed to encourage invention or innovation.
Inherent Contradictions in IPRs
The whole argument regarding IPR is built on a contradiction, namely that in order to promote the development of ideas, it is necessary to reduce the freedom with which people can use them. Central to the projected utility of Intellectual Property Rights is the notion that creation is facilitated by the provision of a temporary monopoly which ensures the author of a work will be the sole beneficiary of any profits. The earliest Patent and Copyright Laws were geared, to an extent, to benefit the individual artisan, or the author of a literary piece or a musical score. But with the institutionalisation of the concept of IPRs individual creators ceased to be the beneficiaries, and were replaced by large corporate interests. In practice, today, most creators do not actually gain much benefit from intellectual property. Independent inventors are frequently ignored or exploited. When employees of corporations and governments have an idea worth protecting, it is usually copyrighted or patented by the organisation, not the employee. Since intellectual property can be sold, it is usually large corporate entities that benefit.
Inhibition of Research and Innovation
Open ideas can be examined, challenged, modified and improved. To turn scientific knowledge into a commodity on the market, arguably inhibits science. There are innumerable examples to show that IPRs have been used to suppress innovation. Companies may take out a patent, or buy someone else’s patent, in order to inhibit others from applying the ideas. For example, as far back as in 1875, the US company AT&T collected patents in order to ensure its monopoly on telephones. It slowed down the introduction of radio for some 20 years. In a similar fashion, General Electric used control of patents to retard the introduction of fluorescent lights, which were a threat to its market of incandescent lights. Trade secrets are another way to suppress technological development. Trade secrets are protected by law but, unlike patents; do not have to be published openly.
One of the newest areas to be classified as intellectual property is biological information. US courts have ruled that genetic sequences can be patented, even when the sequences are found “in nature,” so long as some artificial means are involved in isolating them. This has led companies to race to take out patents on numerous genetic sequences. In some cases, patents have been granted covering all transgenic forms of an entire species, such as soybeans or cotton. One consequence is a severe inhibition on research by non-patent holders. Another consequence is that transnational corporations are patenting genetic materials found in Third World plants and animals, so that some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries.
Distortion of Research Priorities
The pharmaceutical sector is a classic pointer to the dangers of a strong IPR regime. Large Pharmaceutical companies have generated super profits through the patenting of top selling drugs. But drugs which sell in the market may have little to do with the actual health needs of the global population -- for, often, there is nobody to pay for drugs required to treat diseases in the poorest countries. Research and patenting in pharmaceuticals are driven, not so much by actual therapeutic needs, but by the need of companies to maintain their super profits at present levels. Simultaneously, new drug development has become more expensive because of more stringent regulatory laws. This is a major reason for the trend towards global mergers of MNCs. As a consequence, we are looking to a new situation, where 10-12 large Transnational conglomerates will survive as “research based” companies that will be in the business of drug development and patenting. The bulk of drug manufacturing will be done by smaller companies.
Given their monopoly over knowledge, these companies will decide the kind of drugs that will be developed, drugs that can be sold to people with the money to buy them. Thus on one hand we have the development of “life-style” drugs, i.e. drugs like Viagra which target illusory ailments of the rich. On the other hand we have a large number of “orphan” drugs, drugs that can cure life threatening diseases in Asia and Africa, but are not produced because the poor cannot pay for them. Just four per cent of drug research money is devoted to developing new pharmaceuticals specifically for diseases prevalent in the developing countries. To put it another way, less than 10% of the $56 billion spent each year globally on medical research is aimed at the health problems affecting 90% of the world’s population.
A similar situation has been created in the software sector, due to monopolies created by software patenting. Microsoft, with its virtual monopoly over software that is used on Personal Computers has consistently obstructed the development of new products by its competitors.
From Victims to Aggressors
In the 1980s US alleged that that international “piracy” was costing American industries millions, if not billions, per year. Countries singled out for action were largely developing countries in Asian, S. America and Africa. The US posed the whole issue as an organized effort by foreign countries, especially the developing countries to systematically usurp American creativity and technological knowledge. The innocent victims were American companies, such as Microsoft, or Walt Disney, or Merck. Gradually the U.S. introduced the concept of unfair trade practices alongside that of alleged IPR violations in countries like India. It was repeatedly said that the lack of strong international intellectual property laws hindered international trade. By this virtual sleight of hand the U.S. (with the support of Europe and Japan) introduced IPRs as an issue in trade negotiations in the Uruguay Round of GATT negotiations in 1986.
The success achieved by the U.S. in making IPR a trade issue and its subsequent incorporation in the WTO agreement overturns the very basis of trade negotiations, where classically the developing nations are considered victims and special considerations are taken to remedy their problems. In the U.S. version, the roles are reversed. The U.S. is a victim and the developing countries are the hostile aggressors which threaten the very foundation of America, its creativity and ideas.
Developing Countries the losers
There is growing recognition that the regulation of patents and other IPRs cannot be reasonably made with a unique, universal standard. Different socio-economic conditions and levels of development require different intellectual property systems. The patent system may entail considerable short-term costs for developing countries, mainly due to administrative costs and problems with higher prices for medicines and key technological inputs, while long-term benefits seem uncertain and costly to achieve in many nations, particularly for the poorest countries. Moreover, higher standards of patent protection are unlikely to have a positive effect on local innovation, except in those few countries (and sectors) that have reached a certain level of technological development and have the capacity to finance substantial research and development.
Higher standards of IPR protection were implemented in the developed countries only when a threshold level of technological advancement was achieved. For instance, pharmaceutical products were excluded from patent protection in Germany till 1968, in Switzerland till 1977, Italy till 1978, Spain and Portugal till 1992, and Finland till 1995. In countries with a longer history of pharmaceutical product patents, such as Canada, France and the UK, compulsory licensing provisions were quite liberal. India’s pharmaceuticals sector is yet another example of benefiting from more relaxed patent regime. All these factors should be considered when harmonization and higher standards of IPRs are thrust upon the developing countries.
Intellectual Property Rights versus Human Rights
There are large number of International Covenants that are signed by nation states accepting the protection of human rights, the major ones being Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights and Universal Declaration on the Human Genome and Human Rights. Also there are international treaties like the Convention on Biological Diversity, FAO FAO Treaty on Plant Genetic Resources for Food and Agriculture These covenants and treaties are formulated to protect human rights and the genetic resources of the nation states. It should be stressed that IPR are for limited times but Human Rights are inalienable and Universal.
Not Rights but Privileges
IPRs should not be implemented so as to violate and infringe upon human rights. IPRs should be subsumed to human rights, national interests and the preservation of genetic resources. In fact intellectual products are basically social products. While granting certain “rights” to innovators this should not be forgotten. Therefore Intellectual Property Rights cannot be considered as “Rights” as in the case of immutable Human Rights. In this sense Intellectual Property Rights are only certain “privileges” conferred on individual or corporate innovators.
Reference:
- Correa Carlos M. (2000) : Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options: Zed Books, Third World Network, Penang, Malayasia.
- Jayashree Watal. (2001): Intellectual Property Rights in the WTO and Developing Countries: Oxford University Press: New Delhi
- Megan Addis, Penelope Morrow (2005): Your Rights The Liberty Guide to Human Rights: Pluto Press: London
- Report of the Commission on Intellectual Property Rights: (2000): DFID: London
- WIPO (1996): Implications of TRIPS Agreement on Treaties Administered by WIPO, Geneva.
Dr.B.Ekbal, Consultant Neurosurgeon, National Convenor, Peoples’ Health Movement India (Jan Swasthya Abhiyan). Former Vice Chancellor, University of Kerala
Email: ekbalb@gmail.com
