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.
http://infochangeindia.org/200801176812/Trade-Development/Intellectual-Property-Rights/Intellectual-Property-Rights-are-a-privilege-not-a-human-right.html
