Intellectual Property and the Public Domain:

Restoring the Balance

Dr. Sothi Rachagan

Intellectual Property and the Public Domain:

Restoring the Balance

1. Introduction: IP and its protection

2. Globalization of IP: Propertization, Expansion, and Harmonization/ Standardization

3. Implications of Expanded IP Rights

4. Reclaiming the Public Domain

5. Conclusion: IP and the Consumer Movement

What is Intellectual Property?

Creations of the mind : inventions, literary and artistic works, and symbols, names, images and designs used in commerce (WIPO)

IP is information with commercial value

The value depends on: usefulness and quality of information, and legal protection attached to it

Why Protect IP?

From the right owner’s perspective, there are two basic theories for protection : -

• Bargain theory : incentive to produce new inventions/works if there is some kind of reward

• Natural rights theory : the product of mental labor is by right the property of the person who created it. No obligation to disclose anything and has every right to be compensated for its use by others

Balance of IP Rights

Need to maintain balance between private rights and the public interest for access to education and information expressed in:

Article 27 - Universal Declaration of Human Rights, 1948

Article 15 - International Covenant on Economic, Social and Cultural Rights, 1976

Article 7, TRIPS Agreement, 1994

Preamble, WIPO Copyright Treaty, 1996

Article 27 - Universal Declaration of Human Rights, 1948

1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits

2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author

Article 15 - International Covenant on Economic, Social and Cultural Rights, 1976:

1. The States Parties to the present covenant recognize the right of everyone:

i. To take part in cultural life;

ii. To enjoy the benefits of scientific progress and its applications;

iii. To benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

2. The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for the conservation, the development and the diffusion of science and culture.

3. The States Parties to the present Covenant undertake to respect the freedom indispensable for scientific research and creative activity.

Article 7, TRIPS Agreement, 1994:

“The protection and enforcement of intellectual property rights should contribute to the promotion of technological innovation and to the transfer and dissemination of technology, to the mutual advantage of producers and users of technological knowledge and in a manner conducive to social and economic welfare, and to a balance of rights and obligations.”

Preamble, WIPO Copyright Treaty, 1996:

“..the need to maintain a balance between the rights of authors and the larger public interest, particularly education, research and access to information, as reflected in the Berne Convention”.

Public Rights Compromised

• Over the last 20 years, the IP regime has seriously tilted the balance in favor of the private rights of the inventor/creator

• Unprecedented increase in the scope, extent and role of IP rights protection and decrease of the public right to access

Assumptions in Globalisation of IP Protection

Unexamined assumptions used to support IP protection:

• The concept and the IP system are “good things” socially and judicially

• There is no alternative• The system has worked well and will work well for all societies at

all stages of development

These assumptions are not proven and unwarranted

Globalization of IP

Three major aspects:

• Propertization

• Expansion

• Harmonization/ standardization

“Propertization”

• Till 18th century patents and copyright were referred to as “monopolies” or Royal Privileges

• Patents in the modern sense originated in section 6 of the Statute of Monopolies 1623

• The term “property” only used since the French Revolution (instead of Royal Privilege). The French Patent Bill 1791

• Intended to convey impression that IP is fundamentally like interest in land or tangible property -- “the natural rights theory”

Propertization not a universal concept

• “Propertization” of the creations of the mind is not a universal concept

• Began only when the West became a net producer of IP

• In all other civilizations intellectual outputs of an individual were shared with the community for the betterment of the people. Seen as adding to the public domain from which it was derived and to which it adds to ensure further creativity

• Despite very developed legal systems these civilizations did not attempt to propertize knowledge. The Chinese invented the wheelbarrow, gunpowder, matches, and paper money. The Indians developed the water wheel, cotton-ginning, cloth dyes, brass and the extraction of crystalline sugar from cane

• None of these were regarded as private property

Expansion of IP Protection

Initially, there were only three distinct areas of IP protection: -

• Patents : exclusive right to inventors for their invention

• Copyright : exclusive right to creators for their literary and artistic works

• Trademarks : protection to the owner of a distinctive sign which identifies certain goods and services as produced by them

The trend now is to expand the areas of protection

Subject Matter Expansion

Areas or subject matter of IP protection expanded:-

• TRIPS added the following areas: Geographical Indications, Industrial Designs, Layout-Design of Integrated circuits, Undisclosed Information, Life forms (biological and microbiological processes, microrganisms, plants and animals) and compilations of data

• WCT reaffirmed this

• Some countries have added personality rights (rights to prevent exploitation or unauthorized commercial use of an individual’s name, image or likeness)

• WIPO is now negotiating a Treaty to provide a “new protection” for broadcasting and webcasting organizations

Expansion Within Each Subject Area

Example: Copyright

• Copyright under national laws initially protected work that was in literal text

• The Berne Convention, extended the works covered by copyright – e.g. cinematography, drawings, paintings, architecture, sculpture, engravings, lithography, maps, plans, sketches, illustrations, photographs, art works, music

• TRIPS and WCT added computer software and databases

Expansion of the Right Protected

Example: Copyright, the scope of each right itself is being expanded

• In 19th century copyright owner enjoyed little more than protection against verbatim copying of the work

• Berne Convention accorded, amongst others, right to authorize reproduction, translation, adaptations, communication to the public by broadcasting or loud speaker

• TRIPS added the right to authorize commercial rental in respect of computer programs and cinematographic works

• WCT expanded the right of communication to public to include communication via the internet (now must be authorized by the copyright owner)

• US Digital Millennium Copyright Act (DMCA) has created a new exclusive right to control access to the copyrighted work, by deploying technological means of restriction

Expansion of Duration

Copyright is given only for a fixed period of time. Upon expiry, the work ceases to be protected and falls into the public domain

Example: Literary works:

• Berne Convention initially granted protection for the life of the author plus 7 years

• In 1908 extended to the life of the author plus 50 years

• TRIPs and WCT adopted this

Countries are entitled to set a duration higher than these minimum requirements

• US and EU now protect copyright work for life of the author plus 70 years

• Mexico protects copyright work for life of author plus 100 years

Discussions now of protection in perpetuity

Restricting Fair Use

Certain “uses” of a copyrighted work are allowed without the copyright owner’s permission

• “fair use” (United States)• “fair dealing” (United Kingdom and other common law countries)• “private use” (EU and other civil law countries)

• Fair use permitted in international copyright instruments.• States are free to decide on the implementation of fair use

provisions in their domestic legislation

Restricting Fair Use

Generally, certain requirements must be met for fair use.

Example, Copyright, right of reproduction • Copying must be for private, non commercial purpose

• Photocopying – permitted by 1976 US Copyright law, now severe restrictions. Thailand still permits

Trend in international treaties and national legislation to reduce or exclude possibility of fair use (pressure from developed countries)

• Article 11 of WCT – parties may choose to make fair use entirely

dependent on permission of the copyright holder, or not to include them at all

• US DMCA – does not touch directly on fair use rights. But prohibits circumvention of access control. Effectively renders fair use rights irrelevant

FTAs are being used to spread this

Standardization of IP

• International Treaties on aspects of IP have existed since the late 19th Century

• TRIPS made it global and “mandatory”: membership of WTO requires accepting TRIPS

• Standardization/ harmonization is also being achieved via WIPO, FTAs and the use of US Special 301

• Developed countries, notably the US & EU, are imposing ever increasing IP rights in a “one size fits all” approach to the detriment of developing countries

Need to sequence IP protection levels

• Concept of patent first introduced in 1474 – Venetian Patent Law

• 1624, Statute of Monopolies was passed in England - allowing protection to new manufacturers for a maximum period of 14 years

• 1710, Statute of Anne was enacted to guarantee printers sole liberty of printing and reprinting for 14 years

• 1883 and 1886, the Paris and Berne Convention were adopted

Sequencing IP Protection

US constitution provides that Congress shall “promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their writing and discoveries”

However, US Patents and Copyright Acts 1790 :- • Specifically rejected foreign (imported) patents

• Copyright protection was specifically limited to citizens and residents of the US only (no national treatment)

• Indeed, the US, did not recognize copyright of foreigners until 1891, on the ground that these works are necessary to meet the development agenda of the country

• US only ratified Berne Convention in 1989

• Similarly, Swiss patent law was weak until 1907, and did not cover chemicals and pharmaceuticals until 1978

• Similar sequenced development in all developed countries • Approach adopted in Japan, Taiwan and Korea

Sequencing IP Protection

• Similarly, Swiss patent law was weak until 1907, and did not cover chemicals and pharmaceuticals until 1978

• Similar sequenced development in all developed countries • Approach adopted in Japan, Taiwan and Korea

Development of IP

• Developed countries enjoyed a long grace period for their societies to freely access knowledge that was publicly available, in their pursuit of development

• The same transition period is not being accorded to developing countries

• Many developing countries are pressured into adopting the IP regimes entrenched by the West, without addressing their development needs and agenda (education, health care, science, research, etc)

Pressure on Developing Countries

Developed countries, notably US and EU, are imposing ever increasing IP rights

Vehicles Used:• International fora, TRIPS, WIPO, Regional FTAs • Bilateral Free Trade Agreements• US Special 301 reports

National lawmakers unable to formulate IP protection based on local conditions. Subject to continual pressure to ratchet upward the protection granted to rights owners

Bilateral FTAs

Bilateral FTAs entered into between US and other states contain detailed chapter on IP rightsE.g. US-Singapore FTA:-

Obliges contracting parties to provide: • copyright owners right to prohibit “temporary reproduction in

electronic form”• longer term of copyright protection i.e. life of author plus 70 years• legal protection and remedies against circumvention of

technological protection measures

This model likely to be adopted with other developing countries

Implication of Expanded IP Rights

Access to knowledge

• Copyright - monopoly right of author transferred (“assigned”) to publisher or record producer in exchange for publication

• Monopoly rights used to reap unconscionable profits

Textbook Price Survey

Retail cost of Goodman & Gilman’s The Pharmacological Basis of Therapeutics:

Indonesia - US$ 81.70

Thailand - US$ 65.23

US - US$ 139.00

However, in terms of cost (% of GDP per capita) and price in the US (GDP equivalent) and PPP:

Indonesia - 8.43%: US - US$ 3,171; US$ 913Thailand - 2.83% : US - US$ 1,065 ; US$ 323

Textbook Price Survey

Retail cost of Materials Science and Engineering: An Introduction by William D. Calister Jr.:

Indonesia - US$ 36.98

Thailand - US$ 36.84

US - US$ 128.95

However, in terms of cost (% of GDP per capita) and price in the US (GDP equivalent) and PPP:

Indonesia - 3.81%: US - US$ 1,435.28; US$ 413.28Thailand - 1.60% : US - US$ 601.71 ; US$ 182.20

Survey of Journal Prices

Prices of scholarly journals prohibitively high.

Loughborough University survey on Scholarly Journal Prices

2000-2004 indicates:-

• Range of price increases over the period - 27% to 94%

• In 2004, the median overall journal prices (all subjects) varied from £124 for Cambridge University Press, to £781 for Elsevier

Five Year Journal Price Increase History (2001-2005)Source: American Library Association

Library Type % of total % of total 2001 2005 % increase Titles Expenditure Avg title Avg title 2001-2005

price price

College/UniversityUS titles 73.8% 51.5% $251.90 $338.40 34.34% Non US-titles 26.2% 48.5% $630.40 $897.95 42.44%Total titles 100.0% 100.0% $351.04 $484.97 38.15%

Public LibraryUS titles 96.1% 90.1% $53.51 $62.17 16.18%Non US-titles 3.9% 9.9% $125.40 $168.98 34.74%Total titles 100.0% 100.0% $56.31 $66.32 17.79%

Implication of Current Copyright Protection

• Copyright “locks up” information

• Results in high prices and diminishes scholarly communication

• Limited public rights and strong and sustained enforcement creates a barrier to access to knowledge and negates development for the poor

Implication of Expanded IP Rights

Access to medicine

Monopoly rights of patent holder taken advantage of to:-

• Charge high prices for medicines, including for diseases which affect a large number of poor people

• Pressure developing countries to prevent local manufacture or import of cheaper generic versions of drugs from countries where they are not patented (preventing parallel import)

Retail prices in USD of 100 tablets of 150mg Zantac (Ranitidine) (1998) HAI News No.100, April 1998

• US$ Min.Daily Wage GNP per capita Price

• Australia 46 18,720 23

• N.Zealand 32 14,340 21

• India 1.3 340 2

• Bangladesh 2.1 240 9

• Mongolia 0.8 31 183

• Philippines 5.0 1080 63

• Sri Lanka 1.4 600 61

• Thailand 2.9 2740 37

Implication of Expanded IP Rights

Patenting of Seeds and IP Protection for Plant Varieties

Patent protection of seeds or plant varieties results in:

• Farmers must acquire seeds they wish to plant by paying the breeders

• Farmers not able to save seeds that they have bought• Concentration on a few varieties and loss of biodiversity• Further corporate control of the food chain

Traditional Knowledge and IP

Complex area of immense concern for indigenous communities

• Who owns TK?A particular community?The nation state within which it is now situated?Part of the public domain?

• Who speaks for TK at international fora?

• What legal regime is to apply?The global IP regime?Sui generis?Customary law?

In the meantime, TK is being exploited by corporations (both TNCs and local), universities and even national governments with little or no benefit to the indigenous “owners” of TK

Efforts to Reclaim the Public Domain

Change international law and practice (e.g.):-

• Campaign for TRIPS as part of Doha Development Agenda process

• WIPO Development Agenda Proposal by Brazil and Argentina and submitted by 14-member Friends of Development call for paradigm shift in WIPO to meet needs of developing countries

• A2K Treaty – focus on improving access to knowledge • Adelphi Charter on Creativity, Innovation and Intellectual Property

– to ensure society has access to ideas and knowledge generated by others and IP laws do not become too restrictive

Efforts to Regain the Public Domain

Increase access through new practices or initiatives (e.g.):-

• Open access software – software available for free• Open access on scholarly works – overcome price and access

barriers through open access journals and self archiving • Creative commons – allows authors to choose type of licenses

under which they publish their works• Electronic Information for Libraries (EiFL.net) – consortium of

libraries for purchase of digital material

Efforts to Regain the Public Domain

National law reform to maximize use of permitted flexibilities. In copyright the focus has been on limitations and exceptions (e.g.):

• CI policy recommendations on flexibilities in Copyright laws of 11 Asian countries

• Recommendations of the Access to Learning Materials Project in Southern Africa

Conclusion

IP laws are the legal sinews of the information age. They affect all consumers, and in particular, the poor

IP laws impact almost all of the rights of the consumer, for example:

• Access to basic goods and services (health, education, food).• Choice – due to monopolies, market segmentation and differential

pricing• Information• Consumer education• Healthy environment – loss of biodiversity

The consumer movement should not just cater to the wants of those who can afford goods and services. The focus must shift to the poor and those unable to consume