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Intellectual Property Rights are a privilege, not a human right

By Dr B Ekbal

Intellectual Property Rights should be subsumed to human rights, national interests and the preservation of genetic resources

Intellectual property can be defined as the creations of the human mind. Intellectual Property Rights (IPR) 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 the innovations are made public. It is generally assumed that IPR helps to encourage invention, innovation and dissemination of knowledge.

The term IPR covers a bundle of rights such as patents, plant breeders' rights, copyrights, trademarks and trade secrets, each with a different purpose and effect. Copyright covers the expression of ideas in writing, music and pictures. Patents cover inventions such as designs for objects or industrial processes. Trademarks are symbols associated with a good, a service, or a 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.

IPR is 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 period of time, has the exclusive right to make, use, or sell, the invention. Discoverers and inventors are thought to deserve special rewards or privileges because their discoveries and inventions benefit society. The public good is not considered a reward in itself and therefore these incentives to encourage invention or innovation.

Inherent contradiction in IPR

The whole argument regarding IPR is built on a contradiction: that in order to promote the development of ideas, it is necessary to reduce the freedom with which people can use them. One approach to the philosophy of intellectual property that currently dominates the theoretical literature on IPR springs from the position that a person who labours upon resources that are either unowned or 'held in common' has a natural property right to the fruits of his or her efforts, and that the State has a duty to respect and enforce that natural right.

The earliest patent laws expressed the need to ensure that innovations did not die away with the original inventor. In other words, they were designed to promote disclosure and dissemination of knowledge. However, the systems of both law and practice that emerged were based on physical expression. Thus, what was protected as intellectual property was the expression of an idea, a technological artefact, a piece of music, or a work of literature, etc.

Since it is now possible to convey ideas from one mind to another without ever making them physical, ideas themselves are sought to be given ownership, and not merely their expression. And since it is likewise now possible to create useful tools that never take physical form, there is a move towards patenting abstractions, sequences of virtual events, and mathematical formulae -- the most unreal terrain imaginable.

From inventors to corporations

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 that the author of a work will be the sole beneficiary of any profits accruing from it. 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 IPR, 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.

The value of intellectual products is not due to the work of a single labourer, or a small group. Intellectual products are social products. Even in the US and Japan , an enormous part of research is State funded. Therefore, the line between what constitutes 'basic research' by a company and what it draws from public funded research, is blurred.

Inhibiting 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 IPR has 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 in 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 they 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. Companies are now racing 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 the severe inhibition of 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.

Distorting 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 that 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, which are likely to be 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, like Viagra, which target the illusory ailments of the rich. On the other hand, we have a large number of 'orphan' drugs, or 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 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, the US alleged that international 'piracy' was costing American industries millions, if not billions, per year. Countries singled out for action were largely developing countries in Asia , South America and Africa.

The US presented the issue as an organised 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 US 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 US (with the support of Europe and Japan ) introduced IPR as an issue in trade negotiations in the Uruguay Round of GATT (General Agreement on Tariffs and Trade) negotiations in 1986.

The success achieved by the US 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 US version, the roles are reversed. The US is a victim and the developing countries are the hostile aggressors that threaten the very foundation of America , its creativity and ideas.

The rhetoric about 'piracy' gave the US a justification for interference. The generalisation spread from individual pirates to entire States and occurred with the identification of 'problem' countries like India . Finally, in a feat that defies all forms of logic, large multinational corporations were portrayed as the victims. Note here how the whole concept of intellectual property has come a full circle -- from the initial notion of the protection of an individual's rights and the notion of disclosure of information, IPR now means protection of the rights of corporations and a bar on the free flow of information.

Developing countries the losers

There is growing recognition that patents and IPR cannot be regulated under a 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, in Italy till 1978, in Spain and Portugal till 1992, and in 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 a more relaxed patent regime. All these factors should be considered when harmonisation and higher standards of IPR are thrust upon developing countries.

From TRIPS to WIPO

Though the 'international politics' of intellectual property has mainly taken place at the WTO, new intellectual property standards continue to be set under the auspices of the World Intellectual Property Organisation (WIPO). In this context, the new initiative at WIPO, known as the Patent Agenda, launched in September 2001, may greatly influence the shape of the international intellectual property system. WIPO is one of the specialised agencies of the United Nations system of organisations, with 182 nations as member-states. WIPO's principal objective is to promote the protection of intellectual property throughout the world through cooperation among States, and, where appropriate, in collaboration with other international organisations. It administers 23 international treaties dealing with various aspects of intellectual property protection.

Though WIPO was considered an important institution during the 1980s, due to the lack of uniform standards and a strong enforcement mechanism, key industry players in the US persuaded their government that WIPO had failed to secure appropriate levels of intellectual property protection in other countries. They lobbied to bring the issue of IPR protection within the GATT system. An obvious advantage of GATT vis-à-vis WIPO was the possibility of applying trade sanctions to countries found to be non-compliant.

As expected, developing countries resisted the proposal of negotiating on IPR in the Uruguay Round. However, the US , supported by the European Union (EU), succeeded in its efforts through bilateral dealings and the threat of unilateral retaliatory measures such as under Section 301 of the US Trade and Tariffs Act, as well as promises of concessions in agriculture, textiles and clothing.

The Trade Related Aspects of Intellectual Property Rights (TRIPS) agreement introduced the concept of minimum standards for IPR in diverse areas and placed heavy obligations on national governments. However, there are some 'flexibilities' available for the design and implementation of the patent regime at the national level. Much of this flexibility now faces the possibility of being eroded or suppressed under the new WIPO Patent Agenda.

Once higher standards were adopted at WIPO, pressure would build up at the WTO to further increase the intellectual property standards for all its members under Article 71 of TRIPS. It should not be forgotten that much of the substantive provisions of TRIPS are drawn from WIPO. Due to the existing international geopolitical situation, it would be extremely difficult to raise IPR standards at the WTO. Hence, the US -- the prime driver of higher IPR standards -- thought it prudent to adopt a two-stage procedure: to raise standards first at WIPO, and then export these higher standards to the WTO.

This is part of the game plan where the US has been preparing the ground for higher IPR standards globally through several bilateral agreements, notably with Jordan, Singapore and Australia, as well as other means such as asking China, or even least developed countries such as Nepal and Cambodia, to join the UPOV (International Union of Plant Variety Protection) Convention as a condition for accession to the WTO. UPOV, incidentally, is an agency that protects the interests of the large seed companies.

It was because of the demands of civil society organisations and progressive movements all over the world, that the US and other developed countries were forced to concede certain flexibilities within the TRIPS framework. In the Doha Ministerial conference, a Development Agenda was accepted which gave a lot of space for politically committed developing countries to implement IPR policies to protect their national interests, especially in relation to pharmaceutical production. The US is now trying to use WIPO as a platform to regain what it lost in Doha.

The battleground therefore has shifted from WTO-TRIPS to WIPO conferences. Recently, in the Inter-sessional Inter-governmental Meeting of WIPO, 14 developing countries led by Argentina and Brazil , who called themselves 'Friends of Development', submitted a proposal to amend the WIPO Convention and to reform the functioning of WIPO. The essence of the proposal is to make WIPO accept the development needs of developing countries when IPR rules are framed.

Intellectual Property Rights versus human rights

There are a large number of international covenants that are signed by nation states accepting the protection of human rights, the major ones being the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights, and the Universal Declaration on the Human Genome and Human Rights. Also there are international treaties like the Convention on Biological Diversity, and the 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 nation states. It should be stressed that IPR are for limited periods but human rights are inalienable and universal.

Not rights but privileges

IPR should not be implemented so as to violate and infringe upon human rights. IPR should be subsumed to human rights, national interests and the preservation of genetic resources. In fact, intellectual products are basically social products. This should not be forgotten when granting certain 'rights' to innovators. 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 individuals or corporate innovators.

References

  1. Correa Carlos M (2000): Intellectual Property Rights, the WTO and Developing Countries: The TRIPS Agreement and Policy Options , Zed Books, Third World Network, Penang , Malaysia
  2. Jayashree Watal (2001): Intellectual Property Rights in the WTO and Developing Countries , Oxford University Press, New Delhi
  3. Megan Addis, Penelope Morrow (2005): Your Rights: The Liberty Guide to Human Rights , Pluto Press, London
  4. Report of the Commission on Intellectual Property Rights (2000): DFID, London
  5. WIPO (1996): Implications of TRIPS Agreement on Treaties Administered by WIPO, Geneva

(Dr B Ekbal is a consultant neurosurgeon, National Convenor of the Peoples' Health Movement, India (Jan Swasthya Abhiyan) and former vice-chancellor of the University of Kerala)

InfoChange News & Features, January 2008