Intellectual property as a matter of modernity and cows? As I began to type this post I received an email announcing that the Republic of Mozambique has deposited its instrument of accession to the Berne Convention, with effect as of 22 November 2013. In his recent
lecture at Melbourne University Francis Gurry (WIPO Director General) begins by "recalling briefly the traditional explanations of why we have IP".
There are four main reasons, applicable to varying degrees to all the rights that
we characteristically consider to be IP rights.
One set of explanations arises from the non-rivalrous nature of knowledge and
information. Knowledge and information are private goods in production. They
cost human and financial resources to create. In contrast, they are public goods
in consumption. Once available, they may be used by another without lessening
their enjoyment by the producer. This characteristic of knowledge was noticed by
Columcille in his defence against the charge by Finnian in Ireland in the Sixth
Century that he had copied the illuminations of a bible that Finnian had lent to
him. When called before King Diarmuid to answer to the charge of theft,
Columcille protested that he had not stolen anything, since Finnian still had his
drawings and “Finnian’s book was none the worse for his copying from it.” In
dismissing the defence, the king ushered copyright into the world by pronouncing
“To every cow her calf; and to every book its copy.”
Gurry goes on to comment that
I believe that there are three questions that are most likely to preoccupy us in the
new context of IP. I shall call the first “entitlement”. It relates to the function of
IP as a regulator of competitive behaviour that I described above. The second and
third questions relate to the function of IP as the keeper of the social and
economic equilibrium in respect of the multiplicity of interests surrounding
innovation or creation. I shall call them “appropriability” and “access”. Each of
these questions deserves a vastly more wide-ranging discussion than I am able to
accord them here. I shall limit myself to sketching some highlights to provide an
indication of why I believe that they are or will be the dominant questions in the
new world of IP.
“Entitlement” is an age-old question. It is the question of the ownership of, or the
right of control over, Finnian’s illuminations. It is about who invented or created
something first, what are the boundaries between legitimate inspiration from
someone else’s literary creation or design, on the one hand, and illicit imitation or
slavish copying, on the other hand, and it has always animated the IP world. But
it is likely to become even more animated, for three reasons.
The first reason is the enhanced values now involved as a consequence of the rise
of the knowledge economy.
The second reason is the rise in importance of espionage and the illicit
appropriation of trade secrets and confidential information. Technology has
enabled espionage on a widespread basis in a way that was not possible
previously. This development has coincided with the rise in value of the
intangible assets that are the target of the espionage. At the same time, the
movement of skilled persons from enterprise-to-enterprise on an international
scale is now commonplace. This is not a form of espionage, but it does create a
potential vulnerability for the knowledge assets of enterprises.
These developments underline the importance of that branch of IP that is the
protection of confidential information or trade secrets. Worldwide it is in a poor
condition. There is very little uniformity in approach, with the common law and
the civil law traditions viewing the matter juridically in completely different ways.
There are few multilateral provisions; those that exist are in the Paris Convention
on the Protection of Industrial Property and the TRIPs Agreement. It is an area
in great need of attention. But giving it multilateral attention will not be easy. It
is a difficult sell to promote secrecy in an age of transparency. Even if this is an
entirely superficial way of looking at the matter, this is the immediate reaction
that one may expect and a great deal of care will need to be exercised in laying
the basis for an international action.
The third reason for expecting greater animation over the question of entitlement
is the silently growing tension between competition and cooperation. I have
outlined the reasons why competition is heightening in the area of innovation and
IP. At the same time, open innovation has become an increasingly important
mode of behaviour in innovation. Open innovation may mean many things, but
broadly it describes the tendency a firm to look outside itself to partnerships and
collaborations to satisfy its innovation needs, rather than relying on purely inside
processes to generate innovation. As has been said, the advantages of
cooperation are increasing. This tension between competition and cooperation
is going to be a defining issue in the coming decades and IP will be the means of
resolving the tension. This is why Samuel Palmisano, the former President and
CEO of IBM, has said that “[i]ntellectual property will become one of the key
geopolitical issues of the twenty-first century“.
A second cluster of issues and questions will revolve around “appropriability”,
which is, of course, not a word. I use it to describe two things– whether
something should be the subject of an IP right and whether something can be the
subject of an IP right.
Whether something should be the subject of an IP right raises the question of
what may be taken out of circulation and placed in the domain of private
property. Theoretically, the position is clear. IP deals only with the new, the
original and the distinctive. It only protects what did not previously exist and
therefore does not involve any subtraction from the public domain. But in
practice, the position is not so clear. The boundary between science and
technology, or discovery and invention, is more and more difficult to draw,
especially for lawyers, as the recent parliamentary and judicial attention given to
gene patenting has shown. The question of what should be appropriated is not
confined to scientific advances. It occurs equally with respect to the
appropriation of words, signs and symbols through trademark law. Should
colours be able to be the exclusive domain of one enterprise, for example?
A major challenge for IP here will be not to lose touch with the general public. As
mentioned above, there is an increased social attention and focus on IP for a
variety of reasons. If IP, whether through the legislature or the judiciary, takes
decisions about appropriability that are not in consonance with the sentiment of
the general public, it will lose the social credibility on which all good regulation
depends.
Whether something is capable of being appropriated is an entirely different
question that arises from the arrival of technologies of perfect and efficient
imitation, notably the life sciences and digital technology. The problem that has
emerged here is the disjunction between the cost of production, on the one hand,
and the cost of reproduction, on the hand. In the case of a new pharmaceutical,
the cost of production is estimated by industry to be in the vicinity of a billion
dollars and to involve several years of work. Once available and disclosed,
however, it can be reproduced by a competent graduate student in three months
for a relatively meagre outlay. A new feature film may take two years to produce,
involve several hundred persons and cost several hundred million dollars. But,
once produced, it can be reproduced with perfect fidelity in a matter of seconds
and for near zero cost. These developments are massive challenges for IP and,
again, deserve much greater analysis than I am able to give them here.
The third issue that will occupy our attention in the new environment is access. As
mentioned above, what IP does is to make access a saleable commodity. While
this enables technology markets, it also creates social tension over the price of
access and over the lack of access. We have seen this tension played out in
relation to access to medicines and biomedical technologies, content on the Internet and climate change technologies, although the last area is more a
theoretical debate than a full-scale political engagement that has seized the
public’s attention.
It is unlikely that the tension around access will subside. For policy-makers, the
challenge will be to try to orchestrate an informed and reasonable public debate.
For corporations, the challenge will be to balance being competitive and getting a
financial return on investment, on the one hand, with management of a
potentially hostile public response, on the other hand. There is a paradox at work
here, of course. No one minds, it seems, someone making billions out of new
social networking or media technology, but there is widespread social unease at
someone making billions out of a new life-saving drug. Which outcome do we
want to achieve in the innovation system?
