Review and Critique of Intellectual Property

Introduction

The basic purpose for copyright and patents was to promote practical and artistic creative work by giving a monopoly for a short-term specific uses of the work. This monopoly was granted by the government to individuals or organizations. However, the power of the government for this monopoly is unjust and corrupt. Hence, the largest owners of intellectual property have demanded to expand it beyond any appropriate rationale.

There are various types of intellectual property, or more appropriately called as ownership of information, including trademarks, copyright, patents, trade secrets, plant breeders’ rights and design rights. Copyright deals with the expression of ideas related to music, writings or pictures. Patents include inventions like industrial processes, new substances and articles. Trademarks are related to a good, company or a service. Design rights comprise of different methods of presenting the physical appearance of objects. Trade secrets are associated with confidential business knowledge. Plant breeders’ rights present ownership of distinct plant species that are breeded or novels. (McJohn, 2012)

Most people are familiar with only one type of property and that is physical belongings. People can own cars, houses and land. But, the problem arises when people own ideas. Exclusive control of ideas and the ways of expressing them do not make much sense to most people like that of owning physical objects.

The developments in technology have made it substantively easier and cheaper to make replicas of the information. On the one hand, printing has eliminated the requirement of hand copying the documents, while on the other hand, photocopying and computers have made it much easier to make copies of the documents. The same regarding audio visual material, photography and sound recordings. The ability for protecting the intellectual property has been jeopardized by technology; hence there is a strong need to expand the scope of ownership of information.

The research paper outlines the case against intellectual property. Some of the problems that arise from ownership of information will be mentioned, weaknesses in the standard justifications will be analyzed and finally, alternatives and strategies for intellectual property will be presented.

Problems with Intellectual Property

Large quantities of information are generated by the governments. These are: statistics on population, figures on health and economic production, documents of laws and regulations, and a large number of associated reports. This information is generated through taxation and hence, it seems that it should be available to anyone from the public. But, in some countries like Australia and Britain, governments declare copyright in their legislation, including times for court decisions. Thus, citizens require permission to copy their laws and regulations. On the other hand, some of this government-generated information, especially in the United States, is given to corporations which in their turn sell it to whoever is able to pay. Information that is funded by the government is privatized and is not available freely.

The philosophy behind patents is that the basics of an invention are made public whereas the inventor has the rights to make use of, or sell the invention according to his will for a limited period of time. But, there are a few cases where patents have been the cause of suppressing the innovation. Organizations can take out a patent, or purchase someone else’s patents with the purpose of inhibiting others form making use of the ideas. The US company AT&T, gathered patents to guarantee its monopoly on telephones which eventually slowed down the radio introduction for several years. Secrets of trade are aother method to suppress the development in technology. Though, they are protected by law, unlike patents, and are not supposed to be openly published. This can be overcome by reverse engineering or independent development.

Biological knowledge can be claimed an intellectual property now. The courts in the United States have established a rule that genetic sequences may be patented. This has enabled the organizations to race against each other to claim patents on various genetic codes. Under some circumstances patents were granted including all the transgenic kinds of complete species, like cotton or soybeans, leading to an enormous controversy and at times reversals on appeal. One of the consequences can be a major reticence on research by non-patent holders. The other consequence is that the transnational organizations patent genetic materials discovered in the animals and plants of the developing nations. In other words, some developing nations will have to pay for the genetic materials like seeds which have been naturally accessible for them during centuries. (Kinsella, 2001)

Generally, it can be stated that intellectual property is a way provided to the rich countries to extract the wealth and resources from the poor ones. However, in the GATT negotiation sessions, the representatives of some countries particularly the US, have insisted on reinforcement of intellectual property rights. There is no clear indication that intellectual property is of value primarily to the sectors that are already wealthy and powerful.

The latent financial returns from intellectual property are believed to provide incentives for individuals. However, most creators do not actually gain any significant benefit from intellectual property. Inventions form independent inventors have been exploited or ignored. When the ideas of employees of government organizations have a worth to be protected , they are copyrighted by the organization or the government and not by the employee himself. Due to the fact that intellectual property can be sold, it becomes beneficial only for the rich and powerful. Generally, the rich and powerful ones do not contribute much to the intellectual labor for creation of new ideas.

The issues like privatization of government documents, suppression of the patents, information not owned by the original creator and ownership of genetic information are the symptoms of a more severe problem with the entire concept of intellectual property. Intellectual property has been developed in order to create an unnatural shortage to give rewards to some at the expense of many. Intellectual property worsens inequality. It promotes competitiveness over ideas and knowledge, whereas cooperation in this area can be more beneficial. According to Boldrin (2010), a researcher on intellectual property, “Intellectual Property is a form of private sovereignty over primary good information”.

Examples of the Abuse of Power Resulted by Intellectual Property

The neem tree has been used for centuries in India. Neem is the most abundant plant grown there. Its usage varies from toiletries, medication, fuel, agriculture and contraception. The use of neem tree has been enhanced for centuries, but it has never been patented. During the mid 1980s, Japanese and US companies have taken out quite many patents on neem based products. In this way, the knowledge developed and enhanced by Indian researchers and poor villagers has been expropriated by foreigners who did not play any significant role in the development process.

The US photographer Charles M. Gentile has been continually making artistic posters of the landscapes in Cleveland, Ohio. During 1995, he successfully made a poster of the famous I.M. Pei Building, which accommodated the Hall of Fame and the museum of the new Rock and Roll Hall. On this, the museum sued him for violating the trademark that it had taken out on the image of the building. If a building is registered as a trademark, then the painter, filmmaker and photographer who expresses a wish to work on that building has to seek for a permission and pay fees before using the image of the building in his work. It is contradictory to the original justification of intellectual property, which aims at encouraging the production of art works.

In 1980, a book named Documents on Australian Defence and Foreign Policy 1968-1975 was written and published by Richard Walsh and George Munster. It contained many confidential government memos and briefings about Australian involvement in the war of Vietnam, and events which led to the Indonesian invasion on East Timor, and other related issues. The exposure of this highly confidential material embarrassed the government of Australia. As a reaction, the government subjected a temporary injunction, citing the Crimes Act and the Copyright Act. The books, which were put on sale, were confiscated. Even the two newspapers that ran a few extracts from the book were also seized (Barrett, 2009).

The High Court of Australia ruled that the book did not violate the Crimes Act, but the material was copyright protected by the government. Thus, copyright was used to suppress an artist’s work. Sometime later Walsh and Munster produced a book with short quotes and summaries in order to present the information.

A Scottish newspaper The Shetland Times, was sued in court to discontinue an online news service from making a hyperlink to the paper’s official website. If the hyper text links were made without seeking permissions, which is considered unlawful, this would destabilize the entire World Wide Web.

The United States National Basketball Association was brought to the court for the exclusive right to broadcast the game scores as they were in progress. They had one success but lost the appeal.

Critique of Standard Justifications

Kintner (1982), has provided a thorough critique of the basic arguments used to justify intellectual property; hence in this section we will summarize his analysis. He starts by noting the obvious arguments against intellectual property named The sharing of objects allows the original possessor to use them, Hence the trouble of evidence lies on the shoulders of those who argue for intellectual property.

The First Argument

The topmost argument of intellectual property is that the people are entitled to the consequences of their labor. The author responds arguing that all the value of intellectual products is not due to labor or due to the work of a single laborer, or a group of laborers. Intellectual products can be called as social products.

Suppose one has produced a piece of writing, for example, an essay. This intellectual work does not exist in social vacuum. It would not have been definitely possible to do this, without the help of several other essays produced by other writers, who share their information both intellectually and non-intellectually. This includes earlier authors, teachers, mentors and all those, who directly or indirectly enabled a person to write an essay. It also includes people who made the printing of the paper easier like the printing press, the telephone cables, the roads and buildings where you can sit and produce the work. Similarly there can be hundreds of people who can be mentioned here. Hence, the point here is to analyze and state that it is impossible to produce or deliver any piece of intellectual work without the input of other contributors.

Hence, the first argument can be concluded that today’s contributor cannot claim full credit of his work validly since the previous contributors are not present.

The Second Argument

The second significant argument is that people deserve the rights of the property on the ground of of their labor. This leads to the generic issue of what do the people deserve, which is itself a vastly discussed topic by the philosophers. McJohn (2012), says that an appropriate reward for labor should be proportional to the efforts of the person, the risks taken and moral considerations. Though this perspective it seems fair enough, but it is not proportional to the value of the results of the labor, whether assessed by any means, due to the fact that intellectual work is influenced by things uncontrollable by the workers which include luck and talent. According to McJohn (2012), “A person who is born with exceptional God gifted talents, or who is highly fortunate, deserves nothing on the basis of these characteristics”.

For example a musical genius may be able to make marvelous contributions to the society, but being gifted with enormous talents for music does not entitle him to own the rights for compositions or performances.

Similarly, developing a turtle toy like Teenage Mutant Ninja Turtles becomes incredibly famous, thogh it does not justify for owning rights to all similar turtle images or symbols.

There arises a situation when a person works hard and another person works less with equal talent. Does that first person deserve more reward than the second one? The truth is that property rights do not provide an appropriate mechanism for distributing rewards. Great rewards can be granted by the market to the person who successfully claimed property rights for his discovery, with nothing significant for the person who misses that out.

The Third Argument

Private property is a means of endorsing privacy and a method for personal autonomy. Privacy can be protected by not revealing the information, not by owning it completely. Similarly, trade secrets cannot be defended on the basis of privacy, since companies are not individuals. And for the sake of personal autonomy, patents and copyrights are not required.

The Fourth Argument

The fourth argument says that the intellectual property rights are required to promote the creation of new ideas and innovations. The concept is that intellectual property offers financial incentives for the production of new ideas. This could be the only justified argument for intellectual property. Actually, the entire argument has been built on a contradiction, in order to encourage and promote new ideas hence it is required to reduce people’s freedom for their unlimited use. Patents and copyrights may be helpful in the development of new ideas and innovations but they still restrict people to use them freely.

Although, the pace of work and the scale of intellectual property have increased tremendously over the past few decades, the duration of intellectual property protection has not been reduced as expected, but it has rather greatly increased. Once copyrights were only granted for a few decades, they can now be granted for as long as the life of the author plus 70 years more. In many countries pharmaceuticals and chemicals were not patentable until lately.

The Alternative

The suggested alternative for intellectual property is quite straightforward. saying intellectual products should not be owned by individuals or corporations, which ensures that ideas are available to be used by anyone anywhere.

An example for this is the language, including the sounds, the words and meaning systems with which we communicate in our daily lives. Spoken language is available and free for everyone to use.

Another example is scientific information. Researchers conduct their studies and publish their results. A large portion of scientific information is available for the public. But there are some areas of science that are not available to the public, for example, classified military research. Hence, it would be not wrong to state that the most dynamic parts of science are the ones with less protection and secrecy. Open ideas can be analyzed, examined, tested, challenged and improved. To make use of the scientific information as a commodity in market inhibits science.

Some scientists complain that they do not own the information they produce. Instead, they complain more when governments or corporations try to control distribution of those ideas. Most of the scientists do not depend on royalties from their published works: they receive their salaries from the government or corporations.

The scientists of universities work with a greater liberty. Their sole purpose of researching is for their intrinsic satisfaction for discovery and investigation, which is obviously a key motivation for the scientists all around the world. To turn scientific information into intellectual property would damage the enthusiasm of many scientists. But, with the reduction of government funding of the universities, the scientists and the administrators of the universities turn to patents as a source of income.

Plagiarism

Many of the intellectual workers think that the use of intellectual property can save their work from being plagiarized. The question arises: why is not someone able to put one’s name on his essay and get it published? The truth is that copyright does not provide much protection against plagiarism. Though moral rights of authors exist in various countries, but they are too complex and cumbersome to make use of in order to deal with plagiarism.

Plagiarism means copying one’s ideas without appropriate acknowledgement. There exist various types of plagiarism. One of them is plagiarism of ideas, that is when someone takes somebody’s ideas and presents them as his own by using slightly different expression. Copyright does not provide any kind of protection against this kind of plagiarism. Another kind is to copy word-to-word, when someone takes your content and presents it as his own without any modification. This kind of plagiarism can be dealt with copyright. In most cases copyright is possessed by the publisher and not by the author (Kintner, 1982).

Royalties

It is important to note that there are very few individuals, who are able to make enough money from their royalties. Much of the rewards earned form intellectual property is earned by big companies and corporations. Therefore, a serious question rises about the posotion of intellectual workers who depend on royalties and other incomes related to intellectual property.

The suggested alternative for this case is to reorganize the economic system. The workers who depend on royalties should be granted some kind of salaries or funds like most scientists do.

Stimulating Creativity

Generally, the innovators and creators are motivated majorly by their own intrinsic interest and not the rewards. In fact, rewards have been found to reduce the quality of the work that is produced. If the ultimate objective is to have better and more creative work, paying royalties play an adverse role to the creator.

In a society where intellectual property does not exist, creativity is likely to prosper. Most of the problems that are feared, for example, the exploitation of a publisher that abandons copyright, depend on the economic structure which creates inequality.

Strategies for Change

Change Thinking

Intellectual property is associated with physical property. It can be better described as monopolies provided by the government; such description provides a better understanding of the process. Appeals to free market principles are also associated with intellectual property which challenges the barriers to trade in ideas obligated by monopolies.

Expose the Cost

Setting up and operating the entire system of intellectual property can be very costly. Various costs involved in the process are legislation, patent offices, agencies to collect fees, court cases and many more. It is however, suggested that a research should be done to calculate and expose the costs along with the transfer of money between different groups and countries. A developed country like Australia, pays more to the US than it receives for intellectual property. Once the facts and figures are analyzed and understood, it will help reducing the legitimacy of the intellectual property system all over the world.

Reproduce Protected Work

From the point of view of intellectual property, reproducing protected word is called a piracy. An example of piracy is when a boss takes credit for the work done by his worker. Piracy is very common these days when people get copied the copyright articles, duplicate copyright software or record copyright music. Illegal copying of such materials is so easy, that governments have mounted offensives in order to promote intellectual property rights.

However, illegal copying is not an appropriate strategy against intellectual property. Theft of any object exploits the existing ownership system. Since the copiers try to hide the copies in order to avoid penalties, they appear to accept the legitimate system against copying.

Refuse to Cooperate with Intellectual Property

If the people start refusing to cooperate with intellectual property it would be far more powerful action than illegitimate copying. It has been suggested to make use of non-violent actions like noncooperation, boycotts and setting up alternative institutions. If penalties are imposed on those, who refuse cooperation with intellectual property, this would create a repercussion of sympathy. Once the law of civil disobedience to intellectual property occurs, it would not be easy to stop.

Since photocopying of protected material is so common and easy these days, it is very difficult to enforce a law against small violators of this kind. Copyright authorities make use of other methods to earn revenue from intellectual property like payments made by institutions for library copies.

There has been a major discomfort in India over the effects of intellectual property and patenting of genetic materials. Hundreds of farmers protest in rallies against intellectual property.

Promote Non-Owned Information

A good example of non-owned information is the public domain software which is free for everyone. The freeware developers gain satisfaction by producing their work and providing services to others. The Free Software Foundation has expanded the production and development of free software. It is dedicated to eliminate unnecessary restrictions on the rights of people to use, modify, copy and distribute computer software, and is put into practice by encouraging people to use their software freely. Hence, an appropriate alternative suggested for copyright is “share right”.

Principles for Dealing with Credit

Even if the rewards are not granted financially, the intellectual work should be dealt with credit. This would also include guidelines for not using anyone else’s work and present it as one’s own. Although, intellectual property is supposed to deal with unfair appropriation of ideas, the actual situation is a bit different. If people want to challenge intellectual problem, it needs to be assured that misuse of ideas would not be an issue.

More importantly, it needs to be recognized that intellectual work is a collective process including efforts of a big number of people. Ever idea is built on previous studies and ideas presented by earlier intellectuals. Moreover, culture is built on material and practical contributions along with intellectual contributions including the construction of buildings and rearing of families. Intellectual property can be termed as a theft from an individual creator or from the entire society.