-Caveat Lector- <A HREF="http://www.ctrl.org/">
</A> -Cui Bono?-
>From le monde diplomatique
{{<Begin>}}
DEFINING THE WORLD'S PUBLIC PROPERTY
Who owns knowledge?
by PHILIPPE QU�AU *
Far from being a mere technical adjustment to the "information society", the
changes to intellectual property law are a political matter. Using the
"multimedia revolution" as an argument, some interest groups have in fact
mobilised to get intellectual property law revised, strengthening it in the
rights holders' favour.
They have succeeded in getting the period of protection for works extended and
new intellectual property rights created (like the sui generis right that
protects the activity of constructing data bases from existing information,
hardly an "invention"), statutory exceptions restricted (like the fair use of
protected works), and the established benefits for users (public libraries)
called into question, not to mention the possibility of patenting computer
programs.
In 1985 all the data from the American publicly-funded programme of earth
observation by the Landsat satellite were conceded to EOPSat, a subsidiary of
General Motors and General Electric. As a result, the cost of access to the
data increased 20 fold. Universities could no longer afford to buy the
information, even though it had been obtained entirely using public money. It
was used mainly for the benefit of the big oil companies, who thus received a
direct subsidy.
This new development is but one sign of the changing balance of power between
countries (net exporters or importers of intellectual products) and between
social groups with divergent interests (shareholders, teachers, educators,
scientific researchers, users). Thought must therefore be given to the concept
of "general interest" if intellectual property rights are not to be turned to
the benefit of the dominant groups alone.
Most innovations and inventions are based on ideas that form part of the common
property of humanity. It cannot therefore be right to restrict access to the
information and knowledge that make up this common property by making the law
too keen to safeguard individual interests.
Guaranteeing the protection of a global "public domain" of information and
knowledge is an important aspect of defending the general interest. The market
does benefit from the "global public goods" currently available, such as
knowledge falling within the public domain or information or research financed
out of public funds. But it is not its role to contribute directly to promoting
and defending this public domain. International organisations, on the other
hand, are well placed to do so.
The "multimedia revolution" served as a catalyst and pretext for launching a
general round of intellectual property law revision, which began in 1976 with
the revision of the US Copyright Act.
The European directives on databases (1) or the protection of computer programs
(2), the two World Intellectual Property Organisation (Wipo) treaties adopted
in 1996 (treaty on performances and phonograms and treaty on copyright), the
Digital Millennium Copyright Act or the Sonny Bonno Copyright Term Extension
Act adopted in the US in October 1998, the Trips agreement (3), etc. are all
evidence of an excessive legislatory zeal.
Before the Trips agreement, countries like China, Egypt or India granted or
recognised patents on pharmaceutical processes, but not on the final products.
This allowed generic medicines to be manufactured locally, with a considerable
effect on costs. As the United Nations Development Programme (UNDP) 1999 report
stressed, the price of medicines may be as much as 13 times higher in Pakistan,
which accepts patents on products, than in India.
The case of South Africa, which is about to authorise the manufacture of drugs
to combat Aids by national pharmaceuticals firms, even though patents are held
by American or European companies, is exemplary (see Martine Bulard's article).
In a world where science is still the prerogative of the rich countries while
the poor continue to die, there can be no doubt that the niceties of
intellectual property seem less persuasive than social reality. The
transnational corporations and institutions of the rich countries are patenting
everything they can, from the human genome to subtropical plants, committing
daylight robbery on the common property of humanity.
Euro-American consensus
We all need to give thought to the defence and funding of the "global public
goods": without its existence humanity would be reduced to a myriad of
sectional interests. The concept of the "public domain" urgently needs to be
revitalised, strengthened and protected against the voracity of private
interest at a time when private operators are seeking to extend their control
over information.
Consider, for example, the ownership of raw data and facts. Everywhere, the
state is "pulling out" and having countless public databases managed by
subcontractors who then get the rights to exploit that data. Thus, the
Securities and Exchange Commission (SEC, the American stock market watchdog)
has been obliged to buy back its own data from a commercial enterprise which
now "owns" it.
The US ministry of justice ceded publication rights in federal laws to West
Publishing. A commercial version of the publication included a system of page
numbering that was used for reference indexing in subsequent trials. West
Publishing was then able to claim an "intellectual property right" over the
entire database of federal laws on the strength of this supposed "added value".
West Publishing even tried, at the 104th session of the US Congress, to get a
special clause inserted into the Paperwork Reduction Act (adopted in May 1995)
that would have guaranteed its de facto monopoly over the publication of
federal laws. However, this manoeuvre was thwarted by a massive letter-writing
campaign organised in protest by a taxpayers' association.
In France, the ORT company exploits commercial registry databases (company
balance sheets, payment difficulties) on Minitel and the internet as a public
service under licence from the National Institute for Industrial Property
(INPI). This exclusive licence brings it an annual turnover of some 280m francs
($46m) and profits of some 8m francs ($1,485,000). The state, which supplies
the data, is one of its biggest customers. On 9 December the Reuters group
confirmed it was going to take over ORT.
Does not the information contained in public databases automatically belong in
the public domain? Since the state has the monopoly on the collection of that
information, it cannot withdraw without harming the citizen. Moreover, this
kind of transfer of ownership may prejudice the right to information, since
access to public data may be made subject to payment and authorisation that are
both private and arbitrary.
This change is the outcome of a consensus between the US and Europe, masked by
the recurrent (and necessary) debate about the "cultural exception". Concerning
her meeting with Motion Picture Association of America president Jack Valenti,
who represents Hollywood's interests, European commissioner for education and
culture Viviane Reding said, "American officials consider our excitement about
'cultural diversity' completely outdated. What they are concerned about is
piracy and the protection of copyright in the new media. They told me they
would not attack our quotas or our public aids. What they want is for us to try
to see how we can meet these new challenges together. If we grant aid to
production and distribution but the works are then stolen using new
technologies, our entire system will be done for. Instead of fighting the
Americans, we should be trying to preserve our cultural diversities together"
(4).
The manna of patents
But who are these "pirates" and "robbers"? The answer can be found in a recent
European Commission note on the Trips: "We must expect," it says, "resistance
from a number of developing countries belonging to the World Trade
Organisation. They feel that the protection given by the International
Convention for the Protection of New Varieties of Plants (5) gives too much to
the owners of those varieties and fails to take account of the needs of
traditional farmers." (see chart)
The same note concludes by referring to a "strategic problem": "The developing
countries are going to resist the start of substantial negotiations on the
protection of intellectual property. They could even launch a debate on the
relationship between the Trips and other aspects, such as competition, the
environment and its impact on health and welfare. Such an attempt must be
resisted in order to preserve the interests of every party." (6)
What is the purpose of protecting intellectual property? Is it still, in the
words of the doctrine on which it is based, to protect the general interest by
ensuring the universal distribution of knowledge and inventions in exchange for
an exploitation monopoly conferred on the authors (for a limited period)? The
creation of a monopoly on the exploitation of works until 95 years after an
author's death (as in America since the Sonny Bonno Copyright Act) is not in
itself likely to encourage creation. It is more likely to encourage publishers
to live on their catalogue of recognised authors instead of encouraging them to
look for new talent.
What is needed is to encourage creativity and avoid it being lost, not simply
to protect successors in title. If society grants inventors a measure of
protection, it does so in exchange for something "in the higher interest of
humanity", namely that the invention will ultimately fall into the public
domain or that it can be accurately described and published so that everyone
can benefit from it.
It is more advantageous for humanity to have ideas and knowledge circulate
freely than to limit their circulation. It was Aristotle who said that man is
the greatest mimic of all animals. The idea was taken up by the Enlightenment:
the French philosopher Etienne Bonnot de Condillac (1715-80) said: "Men only
end up being so different because they began by copying and continue to do so."
Moreover, excessive protection of intellectual property undermines "free
competition", the pillar on which the market is built. The Allarde and Le
Chapelier decree of 2 and 17 March 1791 expresses the principle of freedom for
trade and industry and therefore the principle of the freedom to compete. By
definition, this implies the possibility of placing on the market the same
product as someone else and therefore the freedom to copy.
There are two opposing trends here: the desire for deregulation and "fair
competition" on one hand, and the ascendancy of oligopolies and monopolies on
the other.
Finally, fundamental rights like access to information and freedom of
expression must be taken into account when extending intellectual property to
information. In the US, the idea of public access to information goes back to
the Founding Fathers and Thomas Jefferson in particular, who promoted the
concept of the "public library" and the doctrine of "fair use" allowing
protected texts to be used for education and to be quoted for academic purposes
(7).
Although some theorists like Friedrich Hayek consider "social justice" an
"inept incantation" and a "quasi-religious superstition" (8), it is important
to understand that the very foundations of a right as important as that of
intellectual property in the global information society cannot be examined
without considering "social justice" and even what might be called "global
social justice".
At the end of 1997 Wipo decided to cut the fees charged to firms wishing to
file industrial patents by about 15%. The reason was the growing number of
applications being filed, which within the space of scarcely ten years had
risen from a few thousand a year to over 50,000 in 1997. This had given the
organisation sizeable financial surpluses that it did not know what to do with.
It is nowadays extremely rare for an international body to be earning too much
money. And there is no shortage of ideas about how such funds, which flow
continually from one of the deepest financial sources, could be applied to the
general interest.
Industrial patents, and more generally all intellectual products protected by
the laws on intellectual property, draw substantially on a common fund of
information and knowledge that belong indivisibly to the human race as a whole.
If we are talking about "global public goods", it would be only fair to use the
income Wipo derives from patent applications to encourage, for example, the
creation of a virtual world public library consisting entirely of texts in the
public domain and therefore freely accessible to all.
The justification would be all the greater since, in international
organisations like Wipo, the combined public power of the member countries is
put at the service of defending the private interests of those filing patents.
The cost of the legal and policing infrastructure for effectively strengthening
intellectual property is in fact paid entirely out of public funds.
Some of the funds collected from patent holders could also be used to finance
research in areas neglected because of their lack of interest to the "market",
as a recent UNDP report suggests (9). Such sums could be allocated to the UN
agencies, which are known to be notoriously under-funded. Those agencies would
then be so much better placed to regulate research on a world level, which is
what they are expected to do, and which, left to itself, the market is quite
incapable of doing.
* Director of the Unesco Information and Informatics Division
(1) Directive 96/9/EC of the European Parliament and of the Council of 11 March
1996 on the legal protection of data bases.
(2) Council Directive 91/250 of 14 May 1991 on the legal protection of computer
programs.
(3) Agreement on trade-related aspects of intellectual property rights (Trips),
the subject of Annex 1C of the agreement establishing the World Trade
Organisation. Note in particular that China will be forced to accept the terms
of the Trips if it wants to join the WTO.
(4) Interview with Lib�ration, 29 October 1999.
(5) International Convention for the Protection of New Varieties of Plants,
adopted in March 1991 and entered into force in April 1998. See
http://upov.int/eng/convntns/1991/content.htm
(6) European Commission (DG I) note of 24 February 1999.
(7) See "Offensive insidieuse contre le droit du public � l'information", Le
Monde diplomatique, English edition, February 1997.
(8) Friedrich A, Hayek, "Law, legislation and liberty" vol. 2, University of
Chicago Press, 1976.
(9) Inge Kaul, Isabelle Grunberg, Marc A. Stern (ed.), Global Public Goods:
International Cooperation in the 21st Century, UNDP-Oxford University Press, New York
and Oxford, 1999.
Translated by Malcolm Greenwood
ALL RIGHTS RESERVED � 1999 Le Monde diplomatique
{{<End>}}
A<>E<>R
~~~~~~~~~~~~~~~
Integrity has no need of rules. -Albert Camus (1913-1960)
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
The only real voyage of discovery consists not in seeking
new landscapes but in having new eyes. -Marcel Proust
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Believe nothing, no matter where you read it, or who said
it, no matter if I have said it, unless it agrees with your
own reason and your common sense." --Buddha
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
It is preoccupation with possessions, more than anything else, that
prevents us from living freely and nobly. -Bertrand Russell
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Everyone has the right...to seek, receive and impart
information and ideas through any media and regardless
of frontiers." Universal Declaration of Human Rights
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
"Always do sober what you said you'd do drunk. That will
teach you to keep your mouth shut." Ernest Hemingway
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
Forwarded as information only; no endorsement to be presumed
+ + + + + + + + + + + + + + + + + + + + + + + + + + + +
In accordance with Title 17 U.S.C. section 107, this material
is distributed without charge or profit to those who have
expressed a prior interest in receiving this type of information
for non-profit research and educational purposes only.
<A HREF="http://www.ctrl.org/">www.ctrl.org</A>
DECLARATION & DISCLAIMER
==========
CTRL is a discussion & informational exchange list. Proselytizing propagandic
screeds are not allowed. Substance�not soap-boxing! These are sordid matters
and 'conspiracy theory'�with its many half-truths, misdirections and outright
frauds�is used politically by different groups with major and minor effects
spread throughout the spectrum of time and thought. That being said, CTRL
gives no endorsement to the validity of posts, and always suggests to readers;
be wary of what you read. CTRL gives no credence to Holocaust denial and
nazi's need not apply.
Let us please be civil and as always, Caveat Lector.
========================================================================
Archives Available at:
http://home.ease.lsoft.com/archives/CTRL.html
http:[EMAIL PROTECTED]/
========================================================================
To subscribe to Conspiracy Theory Research List[CTRL] send email:
SUBSCRIBE CTRL [to:] [EMAIL PROTECTED]
To UNsubscribe to Conspiracy Theory Research List[CTRL] send email:
SIGNOFF CTRL [to:] [EMAIL PROTECTED]
Om
