Intellectual Property Law and Modern Society

Critically consider the extent to which the law of intellectual property meets the needs of modern society The following consideration of the intersection between the needs of modern society and intellectual property law will focus upon specific examples drawn from patent innovation and its legal protections, and various developments in copyright law. Patents The fundamental purpose of intellectual property law is outlined in Aerotel Ltd. v. Telco[1]. Aerotel is the most recent UK Court of Appeal articulation of software patents principles. The Court stated that it had ‘no concern’ regarding the debates that have raged for years concerning software patents and the question of whether the larger public interest requires a greater degree of access to otherwise protected innovations[2]. A summary of the purposes of modern patents was developed as[3]: ‘The patent system is there to provide a research and investment incentive but it has a price. That price (what economists call “transaction costs”) is paid in a host of ways: the costs of patenting, the impediment to competition, the compliance cost of ensuring non-infringement, the cost of uncertainty, litigation costs and so on. There is, so far as we know, no really hard empirical data showing that the liberalisation of what is patentable in the USA has resulted in a greater rate of innovation or investment in the excluded categories.

Innovation in computer programs, for instance, proceeded at an immense speed for years before anyone thought of granting patents for them as such.

[4] TRIPS (Trade Related Aspects of Intellectual Property Rights) demonstrates that international software patent laws are a somewhat unstable mixture of legal theories and the hard edged economic realities of international trade regulation concerning the control of technology. The international intellectual property regime as contained within TRIPS is not so much a system as it is an organism that is not fully developed. The TRIPS agreement is Annex 1C of the Marrakesh Agreement creating the World Trade Organization[5]. This document is the product of a series of multi-lateral agreements made by the members of the World Trade Organization (WTO) respecting various aspects of intellectual property, including software patents. TRIPS represents the first time that intellectual property issues have been formally installed in any world trading structure. TRIPS is a point of commencement in the effort to bring order to the handling of intellectual property disputes. The comprehensive language regarding software patents in TRIPS is consistent with American, British, and European patent practices. However, it is open to question whether the TRIPS regime will assist in the satisfaction of the demands of modern society for clear and effective world wide intellectual property regulation. Earlier and equally lauded WTO initiatives that purportedly enjoyed the support of the international trade community, such as the General Agreement on Tariffs and Trade (GATT), are examples. The ability of the WTO to police a global software patent regime is doubtful – seemingly systemic software piracy in China and India has continued unabated. It is contended that if intellectual property is of value to the economic interests of nations, rogue elements will debase the economic advantages and reduce orderly development into anarchy. The counter position is that easing software patent laws will lead to greater economic development.

Microsoft supreme Bill Gates is not the most likely of champions for a relaxation of world software patent restrictions, as his company may hold more patented technologies than any other. Gates is quoted by those advocates of reduced patent software legislation as follows: “If people had understood how patents would be granted when most of today’s ideas were invented and had taken out patents, the industry would be at a complete stand-still today…A future start-up with no patents of its own will be forced to pay whatever price the giants choose to impose.

That price might be high: Established companies have an interest in excluding future competitors.”

[6] The counter argument to this Gates proposition is advanced in several ways. The first is one of seeming inevitability – patents are an entrenched property right that is an inherent feature of modern global economic systems; to eliminate this right and convert property to a form of shared access will end innovation. The companion argument advanced against the Gates opinion is that even the limited patent protection certainties are preferable to an unregulated system where the actual ownership and control of hard won intellectual property can never be certain. The second counter to the open door proposition is that competition and innovation are inherent to capitalism; the prevalence of software patents in the past 25 years has not diminished research or innovation. . By example, the European Patent Office has issued over 40,000 patents concerning with computer programmes alone through 2005[7]. The most attractive argument against software patents is the assertion that such protections have outlived their usefulness, in that patents represent excessive legal protection and that patents perpetuate economic imbalances through preservation of property rights monopolies. With patent protection, the rich get richer as large multi-national interests may control most of the patented software technology.

Innovation that would otherwise propel individuals and communities forward to success is made difficult, a situation that is contrary to the public interest. The less intrusive copyright laws and non disclosure agreements respecting commercial trade secrets are preferable to the blanket and long term barriers created by patents. Further, the only true beneficiaries of the current patent system are patent agents and patent lawyers, who are essential to the system. The counter argument has three parts. One, the reality of software patents is not as characterised because almost all development of software, from its origins in the 1940s to 1981 was achieved without patent protection; the software developers that spurred the IT revolution confirm this fact. Further, as software patent protection is now the norm, the elimination of patents will create hardship for those who developed their ideas within them.

Thirdly, patent actions have often resulted in judgements that served as a significant deterrent to others.

[8] Open Source Software (OSS)

[9] is defined as a computer programme that permits subsequent modifications of the software by both the current user and any other developer though the provision of its source code granted by the extension of a licence[10]. OSS is regarded by many in the software research and development world as essential to the maintenance of a development environment that ensures an optimum level of unhindered access to vital software application research materials. The OSS concept has its advocates. The Open Source Initiative is a world organisation of scientists and technology advocates devoted to the proposition that software evolves for the common good in a licensed and non patent protected environment.[11] The UK Web Standards Project advances a similar philosophy. Further, OSS would act to counter the ‘commodification of knowledge’[12], of which biotechnology patents are a current example[13]. Examples of software patent presenting a barrier to true scientific advancement in biotechnology is articulated by American researcher Peter Yun-hyoung Lee, where important contributions to vital research are excluded, delaying scientific advances that benefit society.[14] Defenders of the current property rights based approach to patent law counter the OSS approach in three ways. The first is that there is no coherent system that would permit access to all relevant data –who would organise and manage it? So long as software piracy is endemic throughout the world, the argument can be made for greater, more comprehensive, and multi-lateral patent enforcement, not less.

The second is rooted in the fundamental principles of capitalism – the innovators who created the patented softwares must be permitted their fair opportunity to recoup their investment, research and development costs, all of which would be compromised under OSS. The third is an acknowledgement that OSS has intellectual merit – OSS is a desirable goal, but it is Utopian and impossible to achieve in a world wracked by conflict, piracy and theft. Better the devil one knows than a devil one has never met. The special problems of bio technology patents Biotechnology is broadly cast as the development of all pharmaceuticals, medical procedures and innovations concerning the understanding of the human physical processes. Biotechnology patents are the best intellectual property example to illustrates the conflict between the irresistible forces of capitalism that pursue the creation and preservation of biotechnology profits and the immovable object of human rights and social justice goals. The arguments in favour of biotechnology patents are an extension of traditional patent philosophy – business must be encouraged to direct significant resources to innovation and new technology development, because these are the engine that powers modern international trade and commerce. Vibrant world economies benefit all humankind. The contrary position is played out in the media and in significant bodies of academic commentary.[15] It is an equally desirable social objective that free(r) access to biotechnologies is essential to relieve suffering in many nations; pharmaceuticals products in particular will ease suffering and prevent disease.

Genetically modified food technologies are also seen as a means of dealing with hunger and substandard food production. The ethical argument is irresistible to anyone who has watched a news programme or read an account of the horrors of AIDS in Africa, save for one problem – while ethical considerations are vital issues, they are impossible to address with in the context of current national an supra-national biotechnology patent law. The European Union and TRIPS legal structures are directed to trade, not ethics. No distinction is drawn between patents that may have a humanitarian application and those that do not.[16] Further, there is a significant concentration of biotechnological power in the control of United States patent law and American corporate interests, a biotech industry that controls 75 percent of all international biotechnology revenues generated.[17] The territorial nature of patent protection will require a significant reordering of this concentration of biotechnology if there is to be an ethical based freeing of this area. The attractiveness of this approach is developed further in the consideration of the broader human rights and social justice issues that form part of the copyright debate.

The recent UK proposals concerning intellectual property reform captured the essence of the issue: ‘…The ideal IP system creates incentives for innovation, without unduly limiting access for consumers and follow on innovators. It must strike the right balance in a rapidly changing world so that innovators can see further by standing on the shoulders of giants’.[18] The European Union issued its Directive 98 in an effort to confront these difficult issues concerning biotechnology patents. Similar to the observation made by the UK Court of Appeal in Aerotel, the Directive recognises patents as a protective device, not as an instrument to promote social justice. The language of the Directive specifies the essential connection that exists between patentability and profitability; the EU has not seen a need to develop a separate scheme to govern biotechnology patents. However, the Directive does provide for a limitation on patentable processes that may be the springboard for future expansion of the rights of access to biotechnologies, at least with in the European Union. The Directive defines as unpatentable the following types of processes: ‘1. Inventions shall be considered unpatentable where their commercial exploitation would be contrary to ordre public or morality; however, exploitation shall not be deemed to be so contrary merely because it is prohibited by law or regulation.’ 2. On the basis of paragraph 1, the following, in particular, shall be considered unpatentable: (a) Processes for cloning human beings; (b) Processes for modifying the germ line genetic identity of human beings; (c) Uses of human embryos for industrial or commercial purposes…[19]’ It is clear that broad expressions of public policy contained in phrases such as ‘ordre public’ and ‘morality’ must be refined to create a clearer delineation between profit and humanitarian interests in biotechnology in Europe. For those seeking to alter the present profit based paradigm, the Directive must be regarded as a start. Copyright, fair dealing and freedom of expression Copyright and the protection of the manner in which creative expression is protected is a more ubiquitous legal concept than that of patents but one that is equally under constant legal scrutiny.

The Copyright, Designs and Patents Act, 1998 of the UK (‘the Act’) represents a typical example of how nations seek to protect the dissemination of creative works; the UK codification of the ‘fair dealing’ defence to alleged instances of copyright infringement has generated significant case law. Judicial consistency in the interpretation of UK copyright protection is an elusive concept, as is demonstrated through the efforts of the courts to apply the imprecise language of the Act. The decisions rendered in Hyde Park Residence Ltd v Yelland[20], Newspaper Licensing Agency Ltd v Marks & Spencer Plc[21], and Ashdown v Telegraph Group Ltd[22].are excellent examples of the difficulties encountered with the interpretation of UK copyright law. The cases noted here (especially the Ashdown decision[23]) make reference to a balancing [24]of interests between the ownership of the creative work and the desired freedom of expression permitted others who seek to utilise the work. Section 29 through 31 of the Act sets the parameters of the copyright protection and fair dealing in creative works, literary criticism and news reporting; s.29 states: Fair dealing with a literary, dramatic, musical or artistic work for the purposes of research or private study does not infringe any copyright in the work or, in the case of a published edition, in the typographical arrangement.[25] Hyde Park Residence Ltd v Yelland[26]describes a practical interpretation of the Act. The case turned on the publication by the Sun newspaper of certain photographs of the late Princess Diana taken on private property shortly before her death in 1997. The Court held against the newspaper ( a well known tabloid), stating that ‘…even though an unpublished work (the photographs purchased scrumptiously by the Sun) are not automatically excluded from the defence of fair dealing, it is yet a much more substantial breach of copyright than publication of a published work (such as a previous article or review).’[27] The Court seemingly provided the quality papers a copyright infringement defence in both Jameel[28] and Ashdown[29], a case where the Daily Telegraph was sued for an alleged copyright breach regarding the personal papers of former Liberal Democrat leader Paddy Ashdown. The Telegraph did not pay for the information published. The language employed by the Court in Ashdown would give heart to those seeking to liberalise copyright law and create a true balancing of the interests between creator / owner and user of an idea or concept. The Court observed observation that as a fundamental principle, ‘…copyright is antithetical to freedom of expression. It prevents all, save the owner of the copyright, from expressing information in the form of the literary work protected by the copyright.’[30] The Court decided the issue with the determination that: ‘The fair dealing defence under s.30 should lie where the public interest in learning of the very words written by the owner of the copyright is such that publication should not be inhibited by the chilling factor of having to pay damages or account for profits’.[31] Copyright and human rights issues The right to the use or protection of copyrighted material may lack some of the immediacy of the biotechnology patent issues and their impact upon the human condition. As Telfer notes, ‘…few if any observers would list the rights of authors and inventors as human rights.

Yet such rights were recognized at the birth of the international human rights movement. No less an august statement of foundational principles than the Universal Declaration of Human Rights includes in its catalogue of rights and freedoms a statement that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he [or she] is the author.”[32] There is little question that with the TRIPS initiative and developments in various national jurisdictions[33], the scope of intellectual property rights has expanded dramatically, in terms of both subject matter and the economic interests they seek to protect. Nations have linked these rights to the world trading system, creating new opportunities for enforcement at the international and national levels. These twin developments have made intellectual property protection rules relevant to an expanding array of value-laden economic, social, and political issues, including public health, education, agriculture, privacy, and free expression.[34] Conclusion So long as societal need is expressed in terms of financial viability and return on investment, intellectual property law is a continuing success. The wider and more challenging issues of freedom of expression, human rights and social justice are not a ready fit in the current legal framework. Bibliography Gowers, Andrew Gowers Review on Intellectual Property (December, 2006) HM Treasury Guadamusz, Andres (2005) Open Science: Open Source Software Licenses and Scientific Research https://www.bileta.ac.uk/pages/Conference Papers.aspx (Accessed April 22, 2007) Helfer, Laurence R (2007) Collective Management of Copyright and Human Rights: An Uneasy Alliance pp. 1-37  https://papers.ssrn.com/sol3/papers.cfm?abstract_id=816984 (Accessed April 23, 2007) Lee, Peter Yun-hyoung (2005) ‘Inverting the logic of scientific discovery’ Harvard Journal of Law & Technology 19, 1 Raymond, Eric (2002) The New Hacker’s Dictionary Cambridge, Mass: MIT Press, (3rd ed.) Warshofsky, F. (1994) The Patent Wars (New York: Wiley) Washington Times ‘A Rebuttal on ‘Half-Truths’ 8 July 2005, A20 World Trade Organization <https://www.wto.org/english/tratop_e/trips_e/trips_e.htm#WhatAre (Accessed April 22, 2007) Table of Cases Aerotel Ltd. v. Telco et al [2006] EWCA Civ 1371 Ashdown v Telegraph Group Ltd CFPH’s Appns, 2005[2005] EWHC 1589 (Pat) Hyde Park Residence Ltd v Yelland [2000] EWCA Civ 37 Jameel and others v. Wall Street Journal Europe Sprl [2006] UKHL 44 MGM v Grokster 545 US, 125 SCt 2764 (2005) Menashe Business Mercantile Ltd v. Hill [2002] EWCA Civ 1702 Newspaper Licensing Agency Ltd v Marks & Spencer Plc[35] [2000] EWCA Civ 179 Table of Statutes Copyright, Designs and Patents Act, 1998 EU Directive 98/44/EC Trade Related Aspects of Intellectual Property Rights (TRIPS) 1

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Footnotes

[1] [2006] EWCA Civ 1371

[2] Aerotel, 7

[3] Aerotel, 8

[4] See also Menashe Business Mercantile Ltd v. Hill [2002] EWCA Civ 1702; CFPH’s Appns, 2005[2005] EWHC 1589 (Pat)

[5] World Trade Organization <https://www.wto.org/english/tratop_e/trips_e/trips_e.htm#WhatAre

[6] Warshofsky, F, The Patent Wars (New York: Wiley, 1994), 118

[7] See Aerotel, supra

[8] An recent example is Menashe Business Mercantile Ltd v. Hill, supra

[9] Guadamusz, Andres (2005) Open Science: Open Source Software Licenses and Scientific Research 2005 @ https://www.bileta.ac.uk/pages/Conference Papers.aspx [10] Ibid, 2 [11] See The New Hacker’s Dictionary Cambridge, Mass: MIT Press, 2002 (3rd ed.), for further articulations of the benefits perceived through OSS initiatives [12]Ibid, 3 [13] The ongoing controversy concerning the provision of AIDS medication protected by proprietary patents, especially in Africa is the best example. [14] Lee, Peter Yun-hyoung ‘Inverting the logic of scientific discovery’(2005) Harvard Journal of Law & Technology 19, 1 [15] See Helfer, infra [16] See EU Directive 98/44/EC, infra [17] “A Rebuttal on ‘Half-Truths” The Washington Times, 8 July 2005, A20 [18] Gowers, Andrew Gowers Review on Intellectual Property (December, 2006) HM Treasury, 5 [19] Ibid, article 6 [20] [2000] EWCA Civ 37 (10 February 2000) [21] [2000] EWCA Civ 179 (26 May 2000) [22] [2001] EWCA Civ 1142 (18 July, 2001) [23] n 3 [24] See n 18 [25] The Act, s.29(1) [26] Hyde Park Residence Ltd v Yelland & Ors [2000] EWCA Civ 37 (C.A) [27] Beloff v Pressdam Ltd [1973] 1 AER 241, cited at para 17 Hyde Park, supra [28] Jameel and others (Respondents) v. Wall Street Journal Europe Sprl (Appellants) [2006] UKHL 44 [29] N 18 [30] Ibid, para 30 [31] Ibid, para 69 [32] Helfer, Laurence R (2007) Collective Management of Copyright and Human Rights: An Uneasy Alliance pp. 1-37 https://ssrn.com/abstract_id=816984, 5 34 MGM v Grokster 545 US, 125 SCt 2764 (2005) (music download cases) [33]35 Helfer, 7 [34] [35] [2000] EWCA Civ 179 (26 May 2000)

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