Ethics of Intellectual Property Rights Research Paper

1. The Notion Of Intellectual Property Rights

As a generic term, intellectual property rights stand for: patents relating to inventions in all fields of human endeavor; copyright covering literary, artistic, and scientific works; neighboring rights dealing with performances of performing artists, phonograms, and broadcasts; trademarks, service marks, and commercial names concerned with signs distinguishing goods and services as well as economic subjects; industrial design protecting novel and original ornamental or aesthetic aspects of a useful article; or plant breeders’ rights relating to new varieties of plants. Conceptually, intellectual property rights can be understood as rule governed privileges that regulate the ownership and exploitation of objects which are to be characterized as intangible or incorporeal, thus abstract or intellectual. These objects are nonexclusive, since they can be in many places at once, and can be used at the same time without being consumed by their use. The possession or use of such an object by one person thus does not preclude others from possessing or using it as well. Despite their common fundamental character, i.e., being rights in intangible, abstract objects, and being territorially limited, they differ from each other in many legal details and character.

Whereas a patent also gives its owner rights against the independent creator of a similar invention, copyright confers rights against copying but does not affect the independent creation of a similar work. In other words, while patents restrict the actual usage of an idea, copyrights restrict only the copying of an expression of an idea. Necessarily, the period of protection, i.e., during which the rightful owner can prohibit unauthorized use, is tailored according to the specifics of the respective rights—for instance, 20 years from filing the application in case of patents, 50 or 70 years after the death of the author in case of copyright, or renewable at will, i.e., indefinite, in case of trademarks. However, neither patents, nor any other intellectual property right, confer on their owner a license to use the patented invention, copyrighted work, etc. Such use is prohibited whenever it would violate, for instance, laws dealing with public health, safety, environmental protection or certain ethical standards, or would infringe the rights of third parties.

2. Economic Importance

Due to enormous advances in science and technology, in particular in communication and information technologies, biotechnology, and life sciences in general, on the one hand, and the global economic policy developments following the conclusion of the GATT-Uruguay Round and the establishment of the World Trade Organization in 1994, on the other, intellectual property rights have gained most remarkable economic importance. They have penetrated, or are about to penetrate, new areas of economy, such as the service sector, life sciences, and agriculture. Patents have been granted for instance, for microorganisms, plants and animals, genes, as well as computer programs and business methods. Universities and other academic institutions, primarily aimed at generating and disseminating new knowledge, have also not remained unaffected. Consequently, the new, knowledge-based economy has been characterized as ‘intellectual property economy’ or ‘intellectual capitalism.’ This trend is reflected, for instance, by the number of patent applications filed and patents issued, which in the USA almost doubled from 1988 to 1998, from 160,000 patents to 260,000 patent applications; by the amount of royalties paid for patent licenses, which increased in the USA from US$3 billion in 1980 to over US$100 billion in 1997; or by the fact that commodities constituted 62 percent of the market value of the manufacturing industry in the USA in 1980, but less than 30 percent in 1998. Also remarkable are the numbers of patents issued to US universities, which went up from 177 in 1974 to 2436 in 1997, the year in which US universities filed some 6,000 patent applications and granted around 3,000 patent licences.

3. Historic Roots And Rationale

The historic roots of patents and copyrights, as the two forms of intellectual property with the longest tradition, go back to the systems of inventors’ and printers’ privileges at the close of the Middle Ages. Inventors’ privileges formed part of the industrial policy of regional sovereigns, being aimed at promoting domestic crafts and industry, and at transferring to their own country the production of goods which had previously been imported from abroad; thus, as expressed in a grant issued by Edward III in 1331, ‘instruendi et informandi causa.’ The first statutory regulation, the Venetian Statute of Inventors, of 1474, with its time-limited protection of inventions against imitation, was also intended to stimulate ‘deep thinkers and ingenious inventors from other regions to exercise their activity to the advantage of Venice.’ Similar economic rationale is to be observed in the English Statute of Monopolies of 1624, under which the grant of patent monopolies of 14 years’ duration was restricted to the ‘real and first inventor,’ and was conditional upon its not being contrary to law or ‘mischievous to the state’ in any way.

Following the invention of the press, the first printers’ privileges were granted in the second half of the fifteenth century in Venice, later followed by Milan, and at the beginning of the sixteenth century by other Italian cities, France, Germany, and England. Whereas in Venice and France some of these privileges were granted to authors, the great majority of privileges were for publishers, or, as in England, for stationers, who acquired a work from its author and organized its printing and sale. In England, where the stationers in 1534 gained protection secured by the Crown against the importation of foreign books, and in 1556 a Charter from Queen Mary, the privileges were combined with censorship over all publications, by mandatory registration with the Stationers’ Company. Although the first Copyright Act, issued in 1710 in the reign of Queen Anne (the Statute of Anne), conferred the ‘sole right and liberty for printing books’ for 14 years to authors and their assigns, it did not change fundamentally the economic rationale of protection.

By naming booksellers and printers as falling among the author’s assigns, it demonstrated that the right ‘stemmed from commercial exploitation rather than literary creation pure and simple’ (Cornish 1999). Despite the remarkable influence which John Locke’s theory—that all persons have a natural right to hold property, particularly the fruits of their own labour— played from the very beginning in justifying intellectual property, the economic policy of legislation has remained utilitarian. This is well demonstrated by Art. 1, Sect. 8 of the US Constitution of 1787, providing that ‘The Congress shall have power … (8) To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.’ This is equally true for the first modern patent laws. which were passed in 1790 in the United States and 1791 in France, although they strengthened the position of the inventor and awarded him a property right to his ideas. The same rationale controlled also the first US Copyright Statute of 1790.

The doctrine of intellectual property developed in eighteenth-century France, advocated primarily by D’Hericourt, Diderot, and Voltaire as a weapon against extended privileges of publishers. A first true statutory shift of the emphasis from the publisher to the author can be observed in the Decrees of the French revolutionary legislation of 1791 and 1793, which extended the term of protection to the entire life of the author and beyond; first for five, then for 10 years after the author’s death. In the course of the nineteenth century France further extended the term of protection to cover also the lifespan of the author’s widow, and 20 (later increased to 30) years for the benefit of the children. Eventually, in 1866, the duration of French copyright was extended generally to 50 years after the author’s death. Even this shift of emphasis, however, did not add to the economic rights of the author any ‘personality right’ or droit moral, which had been first mentioned by Immanuel Kant. Kant stated that the right of the author ‘is not a right in an object (in re), i.e., in the copy (for the owner can burn this up before the author’s eyes), but an innate right, inherent in his own person, which implies the possibility of opposing the attempt of another person to compel him to speak against his will.’ Kant characterized copyright as a supremely personal right (jus personalissimum) (Stromholm 1983).

French and German legal doctrine and French case law in the second half of the nineteenth century eventually paved the way for droit moral: first, into the case law, and then into copyright statutes of the principal Continental countries. Although droit moral was introduced into the Berne Convention for the Protection of Literary and Artistic Works of 1886, as revised in 1928 in Rome, with a new Article 6 bis—which at present guarantees an author independent economic rights, and even after their assignment, ‘during his whole lifetime the right to claim authorship of the work and to object to any distortion, mutilation or other alterations thereof, or any other action in relation to the said work, which would be prejudicial to his honour or reputation’—the common law countries of the United Kingdom and USA remained reserved in this respect. In general, therefore, one distinguishes between ‘author’s rights’ of civil law countries, with their emphasis on the principles of natural rights, and the ‘copyright,’ rooted in the idea of utilitarianism, of common law countries. However, on balance, it was neither human rights nor copyright doctrine that decisively shaped the law, but economic interests of copyright owners, because: ‘In the world of copyright policymaking, a Canadian book publisher has far more in common with a Japanese book publisher than it does with a Canadian librarian who wants to make free copies for library patrons’ (Goldstein 2001).

4. International Legal Developments

The very nature of the objects to which intellectual property rights relate, and the development of international trade combined with the progress of transportation and communication technologies, already by the nineteenth century revealed the need for international instruments for protecting intellectual property rights. What started in 1883 with the adoption of the Paris Convention for the Protection of Industrial Property, followed by the Berne Convention for the Protection of Literary and Artistic Works in 1886—which established the principles of national treatment or nondiscrimination and minimum rights as binding standards for the contracting states–subsequently developed into a true network of international conventions and treaties covering the entire range of intellectual property rights under the administration of the World Intellectual Property Organization (WIPO).

However, membership in many important conventions long remained limited, and minimum rights incomplete or, as in the case of patents, nearly nonexistent. The turning point came when, during the GATT-Uruguay Round negotiations, issues of international trade, including membership in the World Trade Organization (WTO), were linked directly to an effective protection of intellectual property rights, and the International Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) was adopted in 1994. Under this new umbrella for international protection of intellectual property rights, all members of WTO accepted unified high standards of protection, including protection requirements, content, and limitations and duration of rights, as well as their enforcement. Developing countries, countries in transition and the least-developed countries were granted transition periods.

5. Old And New Ethical Aspects In Intellectual Property Rights

Traditionally, ethical aspects in intellectual property rights have been discussed in the broad context of justification of these rights. Lockean theory of natural rights to the fruits of one’s labour, the doctrine of intellectual property, as well as Hegel’s personality justification suggesting that the best way of progressing science and the arts is to protect scientists and artists from theft, so as to become the basis for learning by others, are such examples and had some lasting influence on legal developments, reflected, inter alia, in broad acceptance of droit moral. Modern critics of intellectual property rights also put emphasis on ethical aspects when, for instance, claiming that increasing scope of patentable subject matter or legislatively creating new forms of abstract objects, such as plant variety rights, constitutes effectively the creation of capital, which has the danger that it can act as an enormous power resource for a select few. Furthermore, a global protectionist scheme for intellectual property would help to promote the formation of global factions, resulting in the danger of global rent seeking, and perhaps providing temptation to multinational elites to increase their profits through the simple stratagem of persuading a supranational body to elevate levels of protection for abstract objects already in existence (Drahos 1996). With such reasoning, neither the ethics of the controlling doctrine nor the ethical aspect of attempts to take care of the developing world and the unprivileged in general can be overlooked. The same is true for the debate on intellectual property rights in genetic resources and benefit sharing. Although clear empirical evidence whether intellectual property rights confer a net benefit or a net loss upon society is still missing modern law makers seemingly accept a limited and flexible intellectual property rights scheme as a reasonable and, as revealed by the adoption of TRIPS, internationally necessary effort to maximize benefits while minimizing costs. This attitude is demonstrated by the adoption of statutory rules or acceptance of case law, creating new objects such as DNA sequences, monoclonal antibodies, or for instance, business methods as subject matter of protection. In their overall positive attitude toward exclusive intellectual property rights modern law-makers might have been in part influenced by the negative experience with some alternative protection found in the former socialist states such as ‘investors’ certificate’ which did not provide for exclusivity and had no beneficial macro-economic effects.

Special attention is paid to ethical aspects when patentability of inventions is at hand, the commercial exploitation of which would be contrary to ‘ordre public’ or ‘morality.’ Under the TRIPS standards, members of the WTO ‘may exclude from patentability inventions, the prevention within their territory of the commercial exploitation of which is necessary to protect ordre public or morality, including to protect human, animal or plant life or health or to avoid serious prejudice to the environment, provided that such exclusion is not made merely because the exploitation is prohibited by their law.’ Thus such exclusions may only apply for ethical reasons, first, if commercial exploitation is prohibited, and, second, if they are prohibited for specifically qualified reasons, which need not necessarily be set out in statutes, however. European patent law reflects these ethical considerations by excluding from patentability the human body, at various stages of its formation and development, including germ cells, processes for cloning human beings, processes for modifying the germ line genetic identity of human beings, uses of human embryos for industrial or commercial purposes, processes for modifying the genetic identity of animals, which are likely to cause them suffering without any substantial benefit to man or animal, and in general all therapeutic methods. By declaring, explicitly in principle, that biological material, even that of human origin (provided the prior informed consent of the source person is obtained), as well as animals and plants (except varieties) is patentable, European law makers demonstrated clearly that they do not share respective ethical objections against patentability of life forms. This ethically reasoned approach, which differs in particular from that applied in the USA, where no such exclusions exist, however itself raises ethical concerns. On the one hand, it seems consistent that inventions, which for reasons of ethics may not be commercialized, should also not be patented, although an issue of a patent does not confirm more than that the usual patentability requirements of novelty, inventiveness (nonobviousness), and industrial applicability (utility) were met and the invention adequately disclosed. It does not contain any other value judgment. On the other hand, the invention under such circumstances cannot be commercialized in any case, as long as its exploitation is prohibited. However, if such a ban were to be lifted, anybody could use the invention, and the inventor would remain empty-handed. As history demonstrates—for instance, with contraceptives—this is not a far-fetched scenario and could easily happen again, e.g., with regard to specific uses of stem-cell technology, germ line gene therapy, etc. Empty-handed inventors, and at least to the same extent the lack of incentives for investment in potentially useful research, may be viewed as ethically doubtful results.

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