Ten Reasons *Not* to Celebrate World Intellectual Property Day
Most legal academics will not allow themselves to say much unless they can do it in 12,000 words, of which at least 4000 are carefully annotated footnotes, but there are occasions when even the most cautious scholar needs to vent. Today is World Intellectual Property Day, and I wanted to share at least ten reasons to explain why I will not be celebrating.
Intellectual property (IP) has its place, and there are some good reasons to continue with an IP system that is fit for purpose, but also many reasons not to, which should give us pause. None of what follows are reasons for an outright rejection of all intellectual property laws, but they are symptoms of a diseased system, and they stem from highly questionable premises grounded in a flawed view of human nature.
IP creates artificial scarcity so that the holder of that right can generate returns from it. This device plays an important function — it gives you an incentive to to come up with something — an idea, a tune, a novel, a pill, in the first place, and helps protect it as yours, when you do. However the assumption is that the promise of commercial returns can make you more creative or innovative than you would otherwise be. Research tells us that this incentive may be necessary for routine tasks requiring some creativity, but higher order creativity that requires sophisticated cognitive functions do not respond to incentives in the same way. A system that assumes that all creativity and innovation is best incentivised by intellectual property rights (IPRs), is in effect hard-selling us a particular and limited version of creativity.
There are three main kinds of IP rights — patents, copyright and trade marks. Historically and legally the reasons to establish these rights are different, yet they all suffer from the same overreach and blind spots that threaten our ability to stay in charge of our autonomous, creative selves. So here are ten problems of ‘world intellectual property’ to explain why I am not celebrating today:
1. Undermines imitative learning: Until a few decades ago there was no ‘world IP’. Intellectual property was designed as a territorial right, for individual nations to decide tailor-made incentives for local industries depending on the maturity of the industry. Imitation is a powerful means of learning. In the early days of an industry — copying and free riding is a significant driver that can lead eventually to innovative local industries. For instance, many countries in the late 70s and 80s did not have patent protection for chemical products. This allowed them to thrive by reverse-engineering and copying new information from wherever it existed, eventually growing innovative pharmaceutical industries. ‘World IP’ pushed through global trade treaties means this right to organically develop local industries does not currently exist for scores of developing and least developed countries. Harmonisation of intellectual property rights makes assumptions about the state of preparedness of economies to use monopoly rights, and imposes strong intellectual property rights on countries denying them the time they need to learn by imitation.
2. Puts Capital ahead of People: Access to affordable patented medicines has always been a problem but the pandemic is exposing this in scale and acuity. We can no longer see access to medicines as something that happens ‘over there’, to other people. The Others are all of us. We need better ways to incentivise ethical and humanitarian innovation. Intellectual property kettles all of the myriad reasons to be innovative and creative under the banner ‘ to make money’. When we focus on commercial benefits, we forget to amplify other, more human drivers.
Think of this — our incentives to the pharmaceutical sector has skewed innovation so much that vaccines are often not worth investing in over treatments because vaccines are a victim of their own success, procured and provided at low cost by governments for reasons of public health. A successful vaccine would mean there was no need to return to your pharmacy to buy drugs, whereas treatments mean more patients, more profit and therefore ‘more success’.
3. Creates an unequal fight between public and private realms: IP depletes the creative broth of the source material we all use to be creative because IP holders have been able to incrementally to extend the scope of their rights, often relying on ambiguous interpretations of the law to push extractive agendas. So for instance newspaper headlines, or a list of facts, can now be copyrighted, and musical riffs and fragments that are such an important part of subconscious creativity may be exclusively monopolised. Critically, property holders are more keen to protect their rights than the public are to defend their right to continue to access the public domain. This skews our ability to preserve the public domain even where the law is not so clear about who owns what. Clearly we can continue to be creative without IP but not without access to the public domain. Consider recipes of chefs (Nadiya’s samosa pie!), trends in fashion, humour and comedy, good writing; it all depends on all of our source material being freely available for everyone to use.
4. Perpetuates a limited view of creativity: More IP does not mean more creativity or more innovation. About 99% of patents that are granted protect inventions that will never make it to the market place. Yet no one can use the information in those patents for the duration of the patent right — 20 years. Counting patents or patent applications as a marker for an innovative society is like going into a restaurant and counting the number of plates on the shelves to figure out how many people eat there. The link is tenuous at best, yet this proxy is used to make policy decisions on innovation.
5. Unsuited to a digital age: IP does not easily map on to patterns of creativity in the digital age. Think of the ease of remixing and rehashing, the way we can cut and paste small bits of music or film or text to often create something magical and entertaining. Personal use, or use for non-commercial purposes is constantly under threat by over zealous IP holders who work on the assumption that anything of value must be propertised. This leads to fragmented ownership of ideas, knowledge and information. When in doubt, most of us would rather not infringe intellectual property rights than take the chance of infringement. It does not help that the law is often ambiguous on what amounts to infringement.
6. Compounds inequality: IPRs help make money, but often in ways that favour large aggregated rights holders like publishers and music collection societies at the cost of individual creators, song writers, authors, columnists. Litigation is extremely expensive. Unless you can make credible threats to litigate and spend money on lawyers and the courts, your IP right remains a protection in name only. Intellectual property rights often work to scale, and the power to exclude favours those who have the means to implement it.
7. International tool of exclusion: Many international norms of justice are useless and ineffective because IP is now a matter of foreign policy. The Paris Agreement could not reach a consensus on climate related technology transfer and IP, so it was left out of the Agreement. The new UN oceans treaty is also under threat if we cannot agree a fair way to distribute benefits from marine genetic resources of the deep sea — some of which could be productive sources of anti-virals. In a global world, IP is the tool of those who control trade and work on the basis that ‘might is right’.
8. Appropriates hidden labour: Many of our closest experiences of IP comes from brand value, or public consumption of entertainment, and there is a great deal of hidden labour in public culture. Think for instance of how brands and trends gain value within groups of people often directed by the brand owner. Consumers who participate and amplify different meanings contribute enormously to the success of a brand. For brand owners to the claim that they own all of the value of what was created should feel unfair but it often doesn’t because our labour is atomised and appropriated.
9. Devalues social innovation: Intellectual property rights do little to acknowledge the work of previous inventors and creators. Imagine a child is trapped under a car, and four people are unable to lift the car. A fifth person arrives and the car moves, the child escapes unhurt. Who would you give the credit of saving the child- all five or to just the fifth person? Much of intellectual property rights do not acknowledge the contribution of the four people, but gives a ‘winner takes all’ reward to the fifth person, thus undervaluing social innovation. The IP right holder is often standing on the shoulders of giants, but this is ignored by a law that is designed to protect individual rights.
10. Undermines traditional knowledge: The patent system favours particular forms of knowledge over others, acting as a gate keeper and curator of vast quantities of scientific and technical knowledge and information. Unfortunately it has no way to grant equivalence to traditional forms of knowledge or contributions that have enriched all our lives. There are many ways of knowing something — if we discover that ginger has anti-viral properties that can dampen the effect of the coronavirus, we might say the reason it does so is ‘the spirit in the root’ or you could say the active ingredient in ginger, described in this formula has an anti-viral effect. The patent system will only allow one who uses the latter language to claim an exclusive right to use ginger as an anti-viral. In an inter-connected world this has led to communities losing patrimony over traditional forms of knowledge, taken over by reductive, corporatized ways of controlling, owning and disseminating information.
So by all means raise a glass today, but not to ‘World IP’. Raise a glass instead to all the creators and innovators out there; those scientists thinking, dreaming, working towards treatments and vaccines; the ingenuity of many in marginalised communities who hack their way to a better life, to those cultures who cultivated herbs and plants that now contribute to many of our pharmaceuticals, and the many who make the pandemic news bearable with their funny, creative takes on tiktok.
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Dr Siva Thambisetty is Associate Professor in intellectual property law at the London School of Economics and Political Science.
@SivaThambisetty
