INTELLECTUAL PROPERTY

The concept of property is as old as civilization. As people acquired possessions or inhabited land or shelters, they sought to secure these items for personal or collective use. Customs and rules evolved to define ownership and specify the rights and responsibilities that attached to ownership. In conjunction especially with developments in science and technology, property has taken on intellectual forms that embody ethical stances and have policy implications.

From Property to Intellectual Property

The definition of property evolved as society invented or identified new things that can be owned. Property rights began with the physical or concrete, such as land, and eventually expanded to include more intangible or abstract phenomena (Horwitz 1992). Interference with such rights shifted from a physical invasion to interference with a proprietary right or a decrease in market value.

Property rights are a series of formal and informal rules governing what owners are allowed to do with their property and the degree to which they can exclude others from its use. Such rights describe relations "not between an owner and a thing, but between the owner and other individuals in reference to things. Property rights reflect societal values of how wealth should be distributed and protected.

Intellectual property is abstract and refers to the products of human intellect such as inventions, literary works, music, and art. Many societies historically have not recognized ownership in intellectual property. Others have associated names with achievements but have not provided serious protection. As societies industrialized, they found a need to protect intellectual property, especially the valuable products of science and technology. Intellectual property rights (IPRs) describe a bundle of rights or privileges that, like other property rights, allow the owner to use, derive income from, and transfer the ownership of the property.

Intellectual Property Rights

IPRs define the rights and privileges attached to ownership of intellectual property. Such rights allow owners to exercise a temporary monopoly over the use of their creations; they have exclusive rights, for a limited time, to decide who may use a product or work and under what conditions. Such rights define ownership and specify the degree to which inventors and creators may profit from their work, the access others may have to the works themselves or to information about them, and how others may use or improve upon existing works.

IPRs involve issues of wealth distribution, incentives for innovation and creativity, access to information, and basic human rights. Ethical issues attach to questions of what should be publicly or privately owned, how ownership is established, how much and how long the owner can control the property, and whether public policy should create exceptions to intellectual property rules to serve social interests.

IPRs encourage innovation by protecting new work from appropriation by others and allows people and institutions to profit from their work. Such rights promote the communication of information; as long as the right is in place, information can be published without fear of loss. IPRs also define public rights by indicating when private protections expire.

Rationales for IPRs fall into two categories, "instrumental rationales, which view intellectual property in terms of its benefits to society as a whole, and natural rights which stresses the inherent authority of innovators to control works they have created" (Schecter and Thomas 2003, p. 7). Instrumental rationales focus on the need for protection to promote societal goals, such as economic growth or technological innovation. Natural rights arguments, grounded in the philosophy of John Locke, assert that people are entitled to protection for the products of their minds, regardless of whether the protections serve other societal goals. The two rationales may lead to different policy decisions about the appropriate type and level of intellectual property protection.

Intellectual property protection is regarded as a basic human right. According to Article 27 of the Universal Declaration of Human Rights (1948), "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." The reach of the right differs across nations, with industrial nations generally providing higher levels of protection than developing nations.

Constructing an IPRs system requires the balancing of often conflicting societal values and needs, such as the need to promote innovation; concerns for equitable distributions of wealth, information, and other benefits; and the desire to allow authors or inventors to profit from the fruits of their labor and imagination. Increasing protection in one area often detracts from another.

Types of Intellectual Property Law

The international system recognizes two types of intellectual property: industrial property, including but not limited to inventions, trade secrets, and trademarks; and copyright. Systems of IPRs laws differ across nations but often include the following.

Copyrights protect works of creativity and authorship such as literary, musical, and visual art, as well as audio recordings, choreography, and computer software. Laws specifying such protection must consider issues such as fair balance between private and public use, the need for public access to information, when protection should begin and how it can be triggered, and how to enforce protections.

Patents protect innovative products and processes by allowing the patent holder to control use of the invention for a limited period of time. In exchange for patent protection, inventors generally must agree to disclose information about their inventions to the public. Patents are generally restricted to inventions, including both products and processes, although the restrictions on patents have narrowed in recent years. Products of nature have generally not been patentable but improvements in biotechnology have challenged definitions of what is natural.

Trademarks identify the origin of products or services and are used to promote them. Trademark protection prevents others from using a trademark to promote a product or service of a different origin. Such protection prevents the appropriation of the competitive advantage trademarks are intended to provide.

Trade secret law protects proprietary business information from misappropriation. Some information, such as an industrial process, might be eligible for protection either under patent law or trade secret law but not both. Trade secrets must be protected from disclosure, while the patent process generally requires making information public.

Science, Technology, and Intellectual Property

Science and technology provide many societal benefits, such as the enhancement of economic growth or quality of life. They also can produce negative, unintended consequences. Most societies promote science and technology, but this can be costly. Establishment of IPRs that protect new works and give innovators the right to profit from their creations provides incentives for expensive innovation without the need for direct government subsidies (Posner 2004). At the same time, IPRs may maintain or aggravate wealth inequities.

Rights have little meaning unless they can be enforced and modern technology has made IPRs enforcement increasingly difficult. Photocopiers make it possible for anyone with access to a machine to reproduce works entitled to copyright protection and the Internet allows anyone to make literary or musical works available to the world.

Science and technology challenge intellectual property systems, particularly patent laws. New fields such as information technology and genetic engineering force courts to decide how to apply laws made before such technologies were contemplated. As knowledge itself becomes more valuable, people and institutions seek additional protection for control of the knowledge and its profits. At the same time, society has an increasing need for access to some kinds of knowledge and protection from the use of others.

Abstract ideas cannot be patented but their applications can qualify for patent protection. For example, "Einstein could not patent his celebrated law that E MC²; nor could Newton have patented the law of gravity. Such discoveries are 'manifestations of Nature, free to all men and reserved exclusively to none."' (Diamond v. Chakrabarty, p. 309, quoting Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 1948). General ideas remain in the public domain but their applications may be privatized through the patenting process.

Biotechnology, perhaps more than any other field, has challenged courts and lawmakers to reconsider intellectual property laws. In 1972 Ananda Chakrabarty, a microbiologist, sought a U.S. patent for a genetically engineered bacterium. The U.S. Patent Office denied the application because bacteria are products of nature, and living things cannot be patented under U.S. law. The case was appealed and eventually reached the U.S. Supreme Court. The Court restated the principle that natural phenomena cannot be patented, but found that Chakrabarty's bacterium was "a product of human ingenuity," and therefore was patentable under U.S. law.

So many biotechnology patents have been issued for such small innovations that some fear the creation of a tragedy of the anti-commons in which new innovations involve so many existing patents that innovation is discouraged. At least one study has found the anti-commons is not yet a significant deterrent to innovation, but that the situation should be monitored.

IPRs can be attached to writings or products regarded as dangerous or immoral, and IPRs tend to legitimize such works by implying social approval. Societies must decide whether to provide protection for harmful or otherwise objectionable work. New technologies, particularly those that create or replicate life, often trigger debate over whether the work should be done at all, much less be protected by law. IPRs also establish ownership of particular innovations, which may help to determine liability if a product causes harm. This raises questions of whether innovators should be held responsible for their products, particularly when the products are used in unintended ways.

Public funding for science and technology further complicate intellectual property issues. Who should benefit from works developed under public funding, the creator or the public? What balance of public/private benefits best serves societal goals?

Academics build their reputations by producing intellectual works. They seek recognition for their accomplishments, control over any economic benefits, and protection against plagiarism. IPRs promote release of information to the public by assuring the author of protection for the work, even after it is made public. IPRs protect authors from possible appropriation of ideas by others, including peer reviewers, before the work has actually been published.

Ownership can be a major IPRs issue. Who owns the product of collaborative work? At what point does a contribution by a supervisor, graduate student, or coworker deserve coauthorship? When the creator works for a corporation or a university, does ownership lie with the creator or the institution? What about funding agencies? In many cases, ownership or authorship is established by disciplinary customs or by agreements among the parties (Kennedy 1997).

Plagiarism is professionally unacceptable and sometimes illegal, but timing is critical to determining whether plagiarism has occurred. According to Donald Kennedy, "To take someone else's idea and use it before it has been placed in the public domain is a form of theft … [t]o make further use of someone else's idea after it has been published is scholarship" (1997, p. 212). Of course attribution is critical even, or especially, in scholarship, whether or not a work is protected.

International Intellectual Property Rights

The absence of an international sovereign makes a global IPRs system problematic. Every nation has different intellectual property laws, making cooperation difficult, although many international IPRs agreements have been developed. Which nation's standards should apply? Most international agreements take a national approach in which a country agrees to provide foreign innovators with the same protection provided to its domestic citizens. Creators of intellectual property generally must seek protection separately in each jurisdiction, a cumbersome process.

The United Nations World Intellectual Property Organisation (WIPO) provides support for the international intellectual property system. Its mission is "to promote through international cooperation the creation, dissemination, use and protection of works of the human mind for the economic, cultural and social progress of all mankind."

Globalization has increased the need for more international IPRs coordination. Multinational organizations seek consistent laws across borders and inventors want universal protection for their inventions. The World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) attempts to provide a more standard IPRs system and sets minimum protection that must be provided by all member states.

Ethical issues become particularly important at the international level (Rischard 2002). Some fear that increasing IPRs protection will increase inequities between the developed and the developing world. Others are concerned that IPRs deny access to products desperately needed by the poor or powerless. Still others believe adequate IPRs standards are critical to promoting technology transfer and foreign investment.

IPRs can deny access to essential products and information to those who need them most, particularly in developing countries. Drug research and development is extremely expensive, and pharmaceutical countries price drugs to recoup expenses and make a profit. No one else is allowed to manufacture drugs protected under patents. Those who need the drugs often have little money. Is it fair to allow people to die because they cannot afford drugs that could prolong their lives?

The TRIPS Agreement allows for compulsory licenses, an exception to IPRs in special cases such as emergencies, that give developing countries access to essential drugs for major health problems such as HIV/AIDS or malaria. Such policies may have a boomerang effect; pharmaceutical companies may be less likely to invest in research to develop drugs for conditions found primarily in poor countries if there is no profit to be made. The answer to the drug access problem may be better addressed by turning to solutions unrelated to intellectual property rights, such as foreign aid. Some pharmaceutical companies have made drugs available at drastically reduced rates to those who cannot afford them.

Inspiration for new products often comes from local or traditional knowledge. Who should benefit when a drug company develops a new drug based on knowledge about the properties of a plant gained from an indigenous tribe in a remote region? Is the company that developed a commercial drug entitled to all the profits or should it share revenues with the people who supplied the information or with the country from which the plants are harvested?

Conclusion

Consensus exists over the need for IPRs but not over the content of such rights. Countries that produce more science and technology and other intellectual property support more protection than other nations. Globalization requires more consistency in IPRs than has traditionally been available. IPRs help to promote innovation and the communication of information, but questions remain about the appropriate balance between public and private rights, the nature of ownership, and the equitable provision of access to products and information. Debates continue over the types of intellectual property that should be protected by law. New technologies intensify such debates, particularly technologies that create new or duplicate old life forms.

MARILYN AVERILL

SEE ALSO Human Rights;International Relations;Property;Science, Technology, and Law.

BIBLIOGRAPHY

Horwitz, Morton J. (1992). The Transformation of American Law: 1870–1960. Oxford: Oxford University Press. General property rights are addressed throughout this treatment of the development of American law over a ninety-year period. IPRs are not specifically treated.

Kennedy, Donald. (1997). Academic Duty. Cambridge, MA: Harvard University Press.

North, Douglass C. (1990). Institution, Institutional Change and Economic Performance. Cambridge, England: Cambridge University Press. This book discusses how formal rules develop, including property rights; it does not specifically discuss IPRs.

Posner, Richard A. (2004). Catastrophe: Risk and Response. Oxford: Oxford University Press.

Rischard, Jean-François. (2002). High Noon: 20 Global Problems, 20 Years to Solve Them. New York: Basic Books.

Schechter, Roger E., and John R Thomas. (2003). Intellectual Property: The Law of Copyrights, Patents and Trademarks. St. Paul: West. This comprehensive reference covers American intellectual property law in great detail, including the history of, rationales for, and elements of each right.

Walsh, John P.; Ashish Arora; and Wesley M. Cohen. (2003). "Effects of Research Tool Patents and Licensing on Biomedical Innovation." In Patents in the Knowledge-based Economy, ed. Wesley M. Cohen and Stephen A. Merrill. Washington, DC: National Academies Press.

INTERNET RESOURCES

World Intellectual Property Organization. (2005). WIPO Intellectual Property Handbook: Policy, Law and Use. Available from http://www.wipo.int/about-ip/en/iprm/. General organization site can be found at http://www.wipo.int/. This site provides a wealth of materials on intellectual property rights.

World Trade Organization. TRIPS Material on the WTO Website. Available from http://www.wto.org/english/tratop_e/trips_e/trips_e.htm.