Global Trends by Martin Khor

Monday 27 September 2004


The system of patents, copyright and other intellectual property rights are coming under public attack, including from famous scientists and well known law professors, who say that this system has gone too far in benefiting a few people at the expense of the majority.

The critics are concerned and even angry that patents and copyright are given (mainly to companies in developed countries) too freely and on terms that unfairly penalize consumers, researchers and small producers.

The wide range of criticisms emerged at a conference on the Future of the World Intellectual Property Organisation (WIPO) organized by the Transatlantic Consumer Dialogue earlier this month in Geneva.

Among the problems raised were that the IPR system is hampering the free flow of information, raising the cost of computer software, hampering scientists from advancing research, reducing the public’s access to information and raising the cost of medicines.

Among the participants were Sir John Suston, Nobel Prize winner and leader of the Cambridge-based scientific team that uncovered the human genome, Richard Stallman , a pioneer of the free software movement (which led among other things to the Linux operating system), and many academic professors specializing in IPR law.

Suston expressed concern that databases containing scientific information are increasingly placed under copyright, making it difficult and costly for researchers to have access, and thus impeding research.

He advocates that scientific data be placed in public databases which researchers can freely use.  When he completed his work on mapping the human genome, Suston’s team quickly published the results in a scientific journal, making it available to all.

“We put the details on a public database so everyone can have access and do their own research,” he said.

He spoke against the present practice of patenting of genes, which is an buse of the patent system as the gene sequences are discoveries and not inventions. He called the attempt by European governments to tighten copyright on databases as “absolutely retrogade.”

“We need ways to tame the market, and conduct research in ways that are not puely market driven,” he said.  “We need to restore trust, because I am afraid the human race will not survive if we don’t restore trust between the scientists and science.”

Stallman, who is president of the Free Software Foundation, said that IPRs were a restriction on the public’s access to information and essential goods, and should not be termed as “rights”.

“Patents granted for software only benefit very few, who are given the chance to sue, whilst the rest are threatened with potential suits,” he said.  “There are  negative effects for software developers and computer users.”

Librarians, scholars and students are also worried that higher copyright regulations are preventing access to information.

Jukka Liedes of the Finland Education Ministry, who is in charge of the country’s library system and access to information policy, said that in the past it was considered that “the less there was IP or copyright, the better.”

However, at present consumers are constrained by copyright terms and access to information has become a concern, he said.  The copyright system has effects on cultural diversity, cultural expressions and on the promotion of creativity. 

For Volker Grassmuch of Humboldt University in Berlin, the digital revolution (sparked by the personal computer and the internet) had made information, editing and copying available to many.

However, there was now a “digital counter-revolution,”  through restrictions placed on computer users, for instance on what they are allowed to download.  Moreover, he said,m copyright law mainly benefits not the authors or musicians but the major industry owners.  The consumers and small producers pay the price.

Several speakers stressed that they were not against intellectual property per se, but that there should be a balance between the monopoly privileges given to the patent or copyright holders, and the rights and welfare of the public.

Their concern was that the balance had tilted very much in favour of the IPR holders, which are able to jack up prices of their products, affecting consumers’ access, whilst also preventing other producers from competing with them.

Dr. R. Sothi, director of Consumers’ International’s Asian office (based in Kuala Lumpur) said a study of copyright laws in five Asian countries had shown that the IP system is making educational materials inaccessible to the poor as it raised the cost and prevented copying.   A one-size-fits-all system is unsuitable to treat  countries at different stages of development.  

The health organization, Medicin Sans Frontier, showed data on how medicines for AIDS patients had been maintained at high levels because of patents.  It also exposed the fact that 97% of patents worldwide are held in the developed countries, whilst 80% of patents in the developing countries also belong to residents of the rich countries.  Thus those who benefit from the IP system are overwhelmingly from the developed countries.

The patent system in the United States is being distorted  by recent practices, according to several American academics.  Brian Kahin of the University of Michigan said the standards for granting patents had been lowered, so many more patents are being granted. 

He added that the range of products for which patents are granted has also expanded to include, for example, life forms, software and business methods.As a result, many patents that are given are of questionable validity.

The seminar participants were worried that the US model, which is unsuitable even for Americans, is now being exported to the developing countries, where it is even more inappropriate and will cause more harm.

They were referring firstly to the agreement on intellectual property in the World Trade Organisation, and secondly to the attempts by the developed countries to create new treaties in WIPO (such as the substantive patent law treaty and the broadcasters’ rights treaty) that would “harmonise” the developing countries’ IPR laws with the laws of the US and other developed countries.

“This harmonization attempt is immoral and the last insulot to developing countries,” said Dr Graham Dutfield of Queen Mary’s University in Britain.  “Japan would not have developed if it had these IPR laws, and the big companies of Europe could not have taken off if they were disallowed from copying technology.

“In the past the IP system allowed countries to catch up as it differentiated among countries, but now the harmonization process will block developing countries from catching up.”

Well-known American academic Prof. Jerome Reichmann said that the proposed new WIPO treaties “would transmit a dysfunctional US system of intellectual property to the rest of the world. It is utterly unfeasible to do that, and it is completely wrong.” 

“Why should the developing countries participate in a standard setting exercise which would be bad for them and also bad for the US and EU,” he added. “How can any good come out of it and why should the developing countrues accept it?”    He called for a stop to such “harmonization” attempts, and this was supported by other participants.

The seminar also discussed many ideas for reforming WIPO so that it would not, as now, only promote IPRs but be able to consider IPRs within the broader context of development.  A declaration on the future of WIPO to that effect is under preparation.