-Caveat Lector- <A HREF="http://www.ctrl.org/"> </A> -Cui Bono?- Dave Hartley http://www.Asheville-Computer.com/dave =============================== DEFINING THE WORLD'S PUBLIC PROPERTY Le Monde diplomatique January 2000 A GLOBAL PUBLIC GOOD Who does knowledge belong to? When intellectual property increases the price of vital drugs ten fold, sentencing millions of sick Africans to death, this is not just a hypothetical question. The future of the world economy and of part of humanity now hangs on the answer. Computing, agro-industry, biotechnology, pharmaceuticals and communications lead the way in the "information revolution". The rise of these activities has brought with it an ever greater need for a check to be kept on new inventions. If such a virtual product as knowledge, which is by nature copiable, is to be turned to profit, its dissemination must be controlled and an artificial scarcity created that allows a price to be set. Such is the primary objective of intellectual property law, together with a concern to protect the "moral" rights of authors over the future of their works (literary and artistic property), to protect the consumer (trade marks) or to limit recourse to industrial secrecy by publishing the detail of inventions (patents). In an attempt to keep pace with these developments, following the trend in the United States the World Trade Organisation and the World Intellectual Property Organisation have launched themselves into a frenzy of legal activity to "strengthen" the rights of owners in order to ensure they get a return on their investment and thereby, in theory, stimulate world growth. But a number of factors stand in the way of this. First, as the United Nations Development Programme points out, many of today's developed nations which are so keen to see intellectual property rights strengthened had very vague rules when their own national industries were being built. They only changed their tune when they became exporters of technology. By amassing intellectual property rights over the whole of knowledge (from photographic archives to the human genome, from software to drugs), the richest countries, which are also the ones with the most highly developed legal systems (the US employs one third of the world's lawyers) are making sure they have control over vast swathes of future output. Secondly, the appropriation of knowledge by private firms is not always legitimate. Both technological research and cultural production feed primarily on knowledge shared by the whole of society. But there are for the most part no mechanisms for promoting and defending the public domain of knowledge, little thought having been given to what might be called "global public goods" (1). Current thinking about the ownership of this common wealth of humanity is embryonic. The American lawyer James Boyle compares it to 1950s thinking on the environment: a few commentators are sounding the alarm about particular issues but are not yet in a position to make a connection between them (2). But the matter needs to be discussed urgently if we are to put a stop to the sequestration of knowledge by private interests (see articles by Philippe Queau and Martine Bulard). [Ph. Ramonet] (1) 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. (2) James Boyle, "A Politics of Intellectual Property: Environmentalism for the Net?", http://www.wcl.american.edu/pub/faculty/boyle/ =============== International Protection INDUSTRIAL PROPERTY "A means of encouraging creativity, industrialisation, investment and fair trade" PATENTS. In return for placing a description of the invention in the public domain, the patent prohibits any exploitation (manufacture, use, sale or import) by a third party without the holder's permission. Protection of the invention is limited in time (generally for a period of 20 years from the date the application is filed). TRADE MARKS . When a trade mark is registered, no person or firm other than the one owning it is allowed to use it for identical or similar products or services. There is generally no time limit on trade mark protection, provided the registration is renewed periodically and the mark continues to be used. There are over 8m registered trade marks. UNFAIR COMPETITION . Actions which are considered contrary to fair practice in the context of commercial or industrial activities are prohibited: practices likely to give rise to confusion with a company's products, services or industrial or commercial activities or which take unfair advantage of its reputation (counterfeiting); false allegations likely to discredit a company's activities; statements or allegations that might mislead the public, especially as to how a product or service is produced or as to its quality; the illegal acquisition, disclosure or use of manufacturing secrets, etc. COPYRIGHT AND NEIGHBOURING RIGHTS COPYRIGHT applies to literary and artistic works. "Economic" rights are not generally exclusive rights of authorisation but simple rights to remuneration; thus, in some countries, any work may be broadcast. Some strictly defined uses (quotations, use of a work for illustration purposes in education, use of articles dealing with political or economic questions in other journals) require neither authorisation nor payment of any remuneration. CREATORS also enjoy "moral" rights by virtue of which they may claim authorship and require their name to be mentioned on copies of their work and whenever it is used in other ways and have the right to object to the mutilation or distortion of their work. In most cases, the holder of a copyright may transfer his right or cede certain uses of his work under licence. But moral rights are generally inalienable, although the author need not exercise them. (Summarised from WIPO documents) ====================== DEFINING THE WORLD'S PUBLIC PROPERTY Apartheid of pharmacology Twenty-two million people in Africa are seropositive - 65% of all the people infected with the Aids virus world wide. South Africa, which is particularly badly affected, has made fighting the scourge a priority. But rather than help, in their determination to protect their patents, the pharmaceutical laboratories are putting treatment beyond the reach of the poorest patients and countries. by MARTINE BULARD * Journalist Sleeping sickness, which is transmitted by the tsetse fly, is making a comeback, killing 150,000 people every year, especially in Africa. There is a treatment, eflornithine (Ornidyl), developed by the American firm Merell Dow in 1985. Costing a small fortune, it was beyond the reach of those most seriously affected and was subsequently abandoned. Having "inherited" the drug when it took the company over, Hoechst Marion Roussel has finally agreed to transfer marketing rights to the World Health Organisation (WHO). But the WHO lacks the resources to manufacture it. After three years of talks, the French humanitarian agency Medecins sans frontires (MSF), together with other non-governmental organisations, is hoping that the product will be available, in some places at least, at the very start of this year. But if it is to continue to be available, a sponsor will have to be found. Microsoft Chairman Bill Gates is a possible candidate. The remedy for bacterial meningitis, which is particularly prevalent in the countries of the South, has not been so lucky. Doctors saw chloramphenicol in oil as having the advantage of being both cheap and easy to use. In 1995 Roussel Uclaf (which merged with the Hoechst group in 1997 to form HMR) stopped making it. Initially, the International Development Association got it transferred to a laboratory in Malta. But now the money has run out. The molecule to treat leishmaniosis, a common parasitic disease in Africa resulting in very severe skin lesions or death, is no more profitable. It exists in the laboratory, but has not gone into production because there is no guarantee of a "return on the investment". The list of molecules discovered but which got no further than the laboratory and of useful medicines abandoned is a long one. Dr Bernard Pecoul, MSF's drugs project coordinator, notes that, of 1,223 molecules placed on the market between 1975 and 1997, only 13 are aimed specifically at tropical diseases. And only five are the outcome of veterinary research (1). Now that many diseases, such as malaria, sleeping sickness or tuberculosis, that had been thought to have been conquered are coming back in force, more virulent than before, the old medicines are no longer always effective, since more and more bacilli are showing multiple resistance, whilst the cost of new remedies is exorbitant. As a result, no serious research is being carried out into a vaccine to replace the good old BCG, even though eight million more people are infected every year. Of these, the number of patients - or should we say customers? -- able to pay is estimated by MSF at 400,000, way below the threshold required to launch an investment. Somewhere in the world, someone is dying of tuberculosis every ten seconds (2). For a medicine to be produced commercially, not only does it need a large market (three quarters of the population), but it must also make money. A lot of money. As quickly as possible. As World Health Organisation (WHO) Director General Dr Harlem Brundtland herself says, "More than a billion fellow human beings have been left behind in the health revolution" (3). In fact four fifths of world health expenditure goes on one fifth of the world population. While drug sales in North America and, to a lesser extent, Europe, mushroomed between 1993 and 1999, in the countries of Africa and Asia (excluding Japan) they declined (see chart). In the case of Aids, the picture is even more devastating: 92% of the world population have to make do with only 8% of total expenditure. "If the rich countries do nothing," Professor Franois Bricaire, head of the parasitology and tropical diseases department of the Pitie-Salpetriere Hospital in Paris, warns, "this human imbalance will result in an explosion. People know that, on the one hand, there are medicines to conquer the disease and that, on the other, they are denied them for lack of resources." For example, triple therapy (the combination of three types of antiretroviral drugs), which has cut the Aids mortality rate by 60% in the West, is virtually inaccessible in the countries of the South. "We get patients coming to us from Africa who have saved every penny to pay for their treatment," Professor Bricaire adds. "We get them back on their feet knowing full well that most of them will not be able to afford to continue their treatment once they return home. And then there are those who arrive illegally. We cannot just abandon them to their fate, so we muddle through, but it is too random to be satisfactory." DRUGS ARE NOT EVERYDAY PRODUCTS According to the World Bank, the number of Aids-related deaths in Africa will soon exceed the 20 million victims of the plague that ravaged Europe between 1347 and 1351 (4). With the simple difference that in those days they did not know how to handle the crisis. Today science is capable of dealing with epidemics. Many try to conceal this reality by highlighting the lack of a reliable health infrastructure in those countries. They say that some long-term treatments like triple therapies against Aids would be impossible there, or even dangerous. The obstacles are real enough: in some countries, wars and population movements have destroyed the health care system; in others, the policies imposed by the International Monetary Fund and the World Bank have had much the same result by requiring drastic public expenditure cuts. It is ironic to see the same people who helped to dismantle the health-care structures turning down emergency programmes on the strength of those systems' very shortcomings. Not only could health care networks be rebuilt, but there are already premises and staff (local and expatriate doctors and nurses) qualified to treat conventional infectious diseases and start long-term treatments for Aids. Provided they have access to the latest medicines at affordable prices. The pharmaceutical industry does not seem to be about to turn over a new leaf. National Pharmaceutical Industry Association director-general Bernard Lemoine does not hide his annoyance at the campaign being waged on this issue. He stresses the positive things being done by the laboratories: temporary price reductions, donation of unused molecules, grants to foundations. But his conclusion is nevertheless final: "I don't see why special effort should be demanded from the pharmaceutical industry. Nobody asks Renault to give cars to people who haven't got one." But that is just it: drugs are not everyday products. Not only do the pharmaceuticals companies set their own prices and select the markets that will push their share prices up, but they oppose every outside initiative. Before the first half of 1998 Thailand had only one drug, fluconazole, to treat cryptococcal meningitis, a fatal disease often associated with Aids; it was manufactured locally by the American laboratory Pfizer under the name Triflucan. It was effective, but extremely expensive: 12,000 bahts (around $330) for a pack of 50 tablets. For a patient starting treatment, that meant a monthly outlay of 15,000 bahts, one and a half times an executive's salary. Finally, two Thai companies managed to put on sale an equivalent product for 4,000 to 4,500 bahts a pack. Still too expensive for much of the population, but much more affordable than Triflucan. Six months later sales were banned: alerted by Pfizer, the United States government had threatened the Thai authorities that it would impose a duty on their main exports (timber, jewellery, microprocessors) if they did not stop making fluconazole. South Africa almost suffered the same fate. In 1997 the government passed some health laws allowing local firms to produce treatments for Aids or to import them bypassing the big corporations' patents. At once the big American pharmaceutical companies, some of which have subsidiaries in the Cape, complained, then pressed their government to take reprisals of the same kind as inflicted on Thailand. Vice-president Al Gore, head of the US-South Africa Binational Commission, took the matter in hand himself. As soon as the confrontation began, the Aids organisations (Act Up-New York) and James Love and Ralph Nader's Consumer Project on Technology began lobbying the US leadership. Gore was unable to hold a single public meeting for the presidential election without being questioned on the subject. This campaign, coupled with the South African government's tenacity, resulted in the Clinton administration abandoning all proceedings and retaliatory measures in September. The laboratories rushed to withdraw their complaints. True, it will probably be some time before South Africa produces its first generic medicine, but the first battle has been won. To measure the scale of the victory, we must look at the changes made to the world trade rules since the World Trade Organisation (WTO) was set up (5). Up until 1994 every country was free to make its own health policy and produce generic medicines without waiting for the patent to fall into the public domain. India, Egypt and Argentina, for example, were able to pursue a policy of import substitution and create a local pharmaceutical industry. Since 1994, the members of the WTO have had to submit to the so-called Trips agreements on trade-related aspects of intellectual property rights. Under this agreement it is, in general, no longer possible to manufacture a drug or buy it abroad without the permission (granted in return for payment of royalties) of the owner of the invention, who holds this power for 20 years. As a result of pressure from countries like Spain and Canada (6), however, the Trips do contain exception clauses: in the event of a medical emergency or hindrances to competition (inventor's refusal to sell or excessively high prices), every government is entitled to have recourse to "compulsory licences" and parallel imports. Compulsory licences allow a product to be manufactured without the inventor's consent, while parallel imports allow it to be bought wherever it is sold the cheapest. South Africa, where according to the WHO one adult in six is seropositive, is an obvious case of medical emergency. The big pharmaceuticals corporations know that. But, as Pharmaceutical Research and Manufacturers of America (PhRMA) spokesman Jeffrey Trewhitt bitterly comments, these South African laws "could set a very, very bad precedent that could undermine legitimate patent protection around the world. The potential harm from these recent developments can be expected to reach into many other developing countries" (7). Furthermore, all the emergent nations are subject to unbelievable pressures. Under WTO rules, India, where only one third of the population has access to drugs, should abandon price controls and the production of generic medicines. It is easy to see that this would result in small firms closing down and even fewer people having access to medical care. Yet the industry journal Pharmaceutiques says that "the reforms and the liberalisation that are under way are opening up new prospects for pharmaceutical laboratories" (8). It is certainly too early to draw detailed lessons from the Trips agreements. But we already know the damage that was caused when the countries of Latin America were forced to deregulate in 1988. According to the WHO, drug prices escalated by 44% in Mexico, 24% in Brazil and 16.6% in Argentina in the space of four years. But the pharmaceutical lobbies are hoping to use the WTO to get all exceptions to patent rights abolished. At the same time, they want greater access, without cost and without constraint, to the plant life of the developing countries, since knowledge of their genomes is one of the keys to future medicines. In other words, they want complete control over the raw materials and ever tighter protection for the discoveries made from those plants, making them inaccessible to the countries they came from (9). In addition patents are being filed further and further upstream, which, Professor Axel Kahn, former chairman of the French National Consultative Committee on Ethics, explains, is "a considerable handicap on freedom to create". Until recently, he argues, "a distinction was made between knowledge that is discovered and belongs to us all and products or processes that are invented and can be patented" (10). Protecting earlier reduces the scope of common knowledge. At present, there is five to ten times more information on genomes in private, limited access, data banks that have to be paid for than is freely accessible in the public domain. As a result, a number of American doctors and researchers say in an open letter, the use of patents or the exorbitant cost of licences to prevent doctors and medical laboratories from conducting genetic tests is restricting access to care, lowering its quality and pushing up costs unreasonably (11). We are moving towards a situation where a handful of firms have a monopoly on life and have seized control of genetic diversity. There is a great danger that the rich countries will officially become a technological and financial directorate, a sort of "G8" for drugs, deciding everything, from the level of research to whether or not a particular product will be launched. That would make the imbalances even worse: the developed countries, with plenty of money to spend, would have the latest treatments, very expensive and protected by intellectual property rights. The others could benefit from them when the patent rights were exhausted - 20 years and several hundred thousand deaths later. Non-governmental organisations, associations of people suffering from various diseases, doctors and researchers are mobilising against these dangers. If they differ on strategy, all are agreed that at the very least the exceptions provided for in the current Trips agreements must be preserved in the millennium round talks. This basic minimum could, MSF suggests, give them time to get a "health exception", just as there is already a "cultural exception". Patent law cannot be placed above humanity's basic needs. It would be perfectly sensible to decide that human genome and biodiversity research should be "global public goods". Monuments like the Angkor Wat temple or cities such as Venice are considered part of human heritage. Why not human genetics? Likewise, a stop must be put to the plundering of the third world: not only should a fee be paid for using plants originating in those countries, but they should all be guaranteed the benefit of treatments developed from those plants. Without waiting for that, how can we fight the epidemics that are devastating the peoples of the poor countries? Prices could be cut quickly to make drugs accessible without jeopardising the financial health of the pharmaceuticals corporations: those based in France, for example, spend nearly as much on advertising and promotion as on research: 11.3% as against 14% of turnover respectively (12). German Velasquez, Sara Bennett and Jonathan Quick, who have been studying health care systems for the WHO for a long time, say that, unlike the rest of health care, the pharmaceuticals sector is experiencing serious problems owing to the lack of competition (13). This has an effect on prices. In fact two thirds of the world market are in the hands of about 20 large groups. And concentration is proceeding apace, as evidenced by the merger of HMR and Rhone Poulenc, or the current link-up between Switzerland's Novartis and US giant Monsanto. Of the 25 drugs most widely sold, 20 are American. There is more or less a single world price, based on those charged in the US, which are among the highest in the world. Some, like Dr Pecoul, propose that a tax should therefore be levied on the pharmaceuticals companies' profits, the proceeds of which would go into a fund to pay for research into tropical diseases and the production of essential medicines. RESEARCH HAMPERED BY PATENTS While the pharmaceuticals groups carry a tremendous responsibility, international organisations and governments must not be let off the hook. France, at least, has shown some signs of action: it has taken part in the United Nations Programme on HIV/Aids (UNAids); it was behind the creation of the International Therapeutic Solidarity Fund, which has brought a lot of hope to the poorer countries. But these programmes have come to a standstill. France has thrown in the towel, Europe is doing nothing and the US refuses to take part in most collective actions of any size. For its part the WHO is now supporting countries making use of "compulsory licences", but it is still far behind what is needed. It remains prisoner to an opaque method of operating and an outdated view of its role. This hampers its ability to innovate and formulate new objectives for world health. Of course the lack of funding is just as crucial. But it would be possible to design emergency programmes making drugs available to health care professionals in the poor countries at cost price or less. The difference would be paid by the pharmaceuticals companies, the governments of the countries concerned and by the developed countries. After all, such a model was adopted in the 1950s and 1960s to fight smallpox, which has been eradicated since 1977. "Financial prudence is not the real enemy," Nobel Prize-winning economist Amartya Sen explains, but "the use of public resources for purposes where the social benefits are very far from clear, such as the massive expenses that now go into the military in one poor country after another. It is an indication of the topsy-turvy world in which we live that the doctor, the schoolteacher or the nurse feels more threatened by financial conservatism than does the general and the air marshall" (14). And he adds: "the price of inaction and apathy can be illness and death". _________________________________________________________________ (1) Bernard Pecoul, Pierre Chirac, Patrice Trouille, Jacques Pinel, "Access To Essential Drugs In Poor Countries. A Lost Battle?", Journal of the American Medical Association, Chicago, vol. 281, 27 January 1997. See also the dossier in the journal Messages, no. 102, January-February 1999, published by Medecins sans frontieres, 16 rue Saint Sabin, 75011 Paris. http//www.msf.org/ (2) Figures provided by the WHO. Note that 98.8% of victims live in third world countries. (3) Dr Gro Harlem Brundtland, statement to the 52nd world health assembly, "Looking ahead for WHO after a year of change", World Health Report, WHO, Geneva, March 1999. (4) "Intensifying action against HIV/AIDS in Africa", World Bank - Africa Region, Geneva, June 1999. (5) See Le Monde diplomatique, November 1999. See also Andre Ferron, Philippe Herzog, Bernard Marx, "Pour un controle social du cycle du Millenaire l'OMC", L'Option de Confrontations, Montreuil, November 1999. (6) Spain did not fully recognise the patenting system for drugs until 1992, Canada in 1993. (7) Quoted by Mike McKee, "Tripping over Trips", IP Magazine, San Francisco, September 1999. http://www.ipmag.com/ (8) Jean-Jacques Cristofari, "Facettes indiennes aux 23,700 firmes pharmaceutiques", Pharmaceutiques, Paris, no. 53, January 1998. (9) Jean-Paul Marechal, "Making merchandise of biodiversity", Le Monde diplomatique, English edition, July 1999. (10) Axel Kahn, Et l'homme dans tout cela, NIL, Paris, to be published in February 2000. (11) See The Guardian, London, 15 December 1999. (12) "L'industrie pharmaceutique: realites economiques 1999", document published by the Syndicat national de l'industrie pharmaceutique (SNIP), 88 rue de la Faisanderie, Paris. (13) German Velasquez, Sarah Bennett and Jonathan D. Quick, "Rles des secteurs public et prive dans le domaine pharmaceutique. Incidences sur l'equite en matire d'accs et sur l'usage rationnel des medicaments", WHO, Geneva, 1997. (14) Amartya Sen, "Health and development", keynote address to the 52nd world health assembly, Geneva, May 1999. ========================= Who owns knowledge? by PHILIPPE QUEAU * * Director of the Unesco Information and Informatics Division 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. ______________________________________________________________ (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 Liberation, 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 *** NOTICE: In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. *** <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! 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