Whenever you rent a video, there is always that bit at the beginning which you fast forward, the have-you-got-what-you-paid-for? copyright and piracy warning. Most people would support the idea that artists and authors deserve reward for their work, and similarly scientists and technology innovators should be encouraged to pursue worthy goals with the prospect of financial recompense for patentable inventions.
According to the original theory, the protection of intellectual property by patents and copyright ensures that the public benefits from the continued invention and creation of useful works and innovations.
However, we now live in the information age, and with the strengthening of copyright and intellectual property protection across the globe, information and knowledge is no longer a public good but patentable private property. Peter Drahos and John Braithwaite argue that we have gone too far in recognising and protecting intellectual property rights. The nadir was the 2001 South African court case that saw 39 pharmaceutical companies suing the South African government in an attempt to prevent the parallel importation of cheap, generic, anti-retroviral AIDS drugs. That case represented the culmination of decades of increasing intellectual property protection which has created a world in which abstract property rights are in direct conflict with human rights and public health needs.
Drahos and Braithwaite have called their book Information Feudalism to draw an analogy with the inequitable distribution of property rights in medieval systems, where lords held ownership over land, and hence the power to control and exploit serfs and vassals. In the modern world, copyright and patent systems have become global in scope. Through the Trade Related Aspects of Intellectual Property (TRIPs) agreement of the Uruguay Round of GATT, multinational companies can gain ownership over information and abstract objects, and thus control and exploit consumers, the developing world and potential competitors.
In addition to consumer welfare and competition concerns, ‘the globalization of intellectual property rights will rob much knowledge of its public good qualities. When knowledge becomes a private good to be traded in markets the demands of many, paradoxically, go unmet. Patent-based R&D is not responsive
to demand, but to ability to pay.’ This phenomenon explains why billions are spent on the production and marketing of drugs such as Viagra and Prozac for the West, while tropical diseases are largely ignored. Indeed, anti-malarial drugs are predominantly developed for Western tourists and military personnel, not the nationals of disease-affected countries.
Information Feudalism is a fascinating tour through intellectual property history, and analyses how business and the United States government lobbied and bullied the world to adopt the intellectual property standards of the TRIPs agreement as part of the Uruguay Round of GATT.
The historical journey includes a comparison of today’s CD and DVD pirates with the maritime piracy of Sir Francis Drake, which at the time was an endorsed state policy. England, a relatively poorer state than Spain, commissioned privateers like Drake to take Spanish profits for the benefit of England. It’s not such an imaginative leap to consider CD pirates as Robin Hoods, stealing from the rich American recording industry to give to the consumer poor.
The development of copyright through the Stationers’ guild and the creation of ‘letters patent’ is traced from medieval times through to the 20th century—charting the competition between German and American chemical industries, the impact of the two world wars, and the later move from chemistry to biochemistry and genetics as the intellectual property perimeter. Today even DNA sequences can be patented.
Much of the book involves a detailed account of the motivations and machinations of securing global agreement to TRIPs. Initial US policy was to pursue bilateral agreements, in a carrot-and-stick approach involving the threat of trade sanctions under the ‘Special 301’ provision of the US Trade Act. US negotiators then presented TRIPs as a non-negotiable part of the Uruguay round. As a quid pro quo they offered vague promises to liberalise agricultural trade, which were never carried into effect.
This book should not be mistaken as an anti-American polemic. Drahos and Braithwaite recognise the US national security aim of ‘securing intellectual property protection, for the knowledge industries that gave the US its technological superiority.’ However, they argue that this motivation has driven the US government too far into negotiating excessively strong intellectual property protection which now serves only to create supra-normal profits for multinational businesses, reducing competition and allowing a new and legal method for the formation of ‘cartels’ and monopolies. As a consequence, international public goods are neglected: human rights (including access to medicines) are held hostage to the commercial considerations of patent law; indigenous knowledge, often the source of commercially successful patents, is not rewarded; while under TRIPs the South will pay the North, in perpetuity, for
intellectual property, further deepening the North-South divide.
Perhaps the most alarming consequence identified by Drahos and Braithwaite is the risk that the new
‘information feudalism’, by ‘dismantling the publicness of knowledge, will eventually rob the knowledge economy of much of its productivity.’ This would be a disaster for humankind, for as a perceptive scientific genius once said, ‘I can only see as far as I do, by standing upon the shoulders of those who have gone before me.’
Information Feudalism: Who Owns the Knowledge Economy?, Peter Drahos with John Braithwaite.
Earthscan, 2002. isbn 1 85383 917 5, rrp $39.95
David Ferris is a final year Commerce/Law student at Melbourne University.