08 October, 2013

Rethinking The Role of Intellectual Property

The role of IP laws and the framework it currently resides in has been debated for decades, and with changes looming in both Australia and the UK, this discussion has been further highlighted. In a recent lecture (a transcript of which can be found here) at the University of Melbourne, Dr. Francis Gurry, the Director of WIPO presented his thoughts on the future of IP.

Dr. Gurry's opening statement set the stage for the topic well, presenting the volatile changes intellectual property has gone in recent years: "...the context in which intellectual property operates in the contemporary world is vastly different from that in which IP was born and that new context has changed the position of intellectual property in the economy and it’s changed it in society, and I think it should cause us to rethink the role that we give to intellectual property." This change has manifested in many ways, such as the digitization of media, the emergence of the Internet and recently the Cloud.

The role IP has played was laid out well by Dr. Gurry. According to him IP is both a private good, where information and knowledge serve as a vehicle for personal gain, but they are also a public good in consumption. In the case of the latter, information and knowledge can be enjoyed and used by others without lessening the value of the information or knowledge itself for the producer of it. The current IP framework serves as a way to protect commercial interests by limiting its public consumption, in order to recuperate the costs that were incurred through its creation, or as was incredibly eloquently put by Dr. Gurry: "It thereby creates an economic incentive to investment in knowledge creation and provides a safe passage through hostile terrain for the long and often lonely march of an idea from conception to commercial implementation as a new product, service or process." This aspect is important, as it creates the possibility of the creation of that information or knowledge to begin with, especially in a modern society where basic human needs are only met through the acquisition of money.

IP does provide another interesting benefit, one which most undoubtedly overlook as a result of the heavy emphasis on the commercial aspect of IP. This is the opening up of knowledge, and the ability to build on old information; more specifically relating to patents. Dr. Gurry expanded on this with an example of the patent relating to the saxophone, one which was subsequently built on, used to create something new and to arguably improve the initial patent itself. Contrasting this is the loss of knowledge in how old masters made violins, such as Stradivari and Guarneri, as without any open and accessibly information to their specifics their methods still allude even modern manufacturers. The patent system has also created an amazing database of human invention, both past and present, for future generations to use and study. This availability of information clearly can be argued to counter-balance any commercial interests relating to patents themselves, showcasing the amazing things that proper IP schemes can create.

The status quo aside, Dr. Gurry does point out that "...much has changed in the world... [and the changes] should cause us to add certain other responsibilities to the job description of IP in order to reflect better the position of IP in the contemporary economy and society". This is caused by the ever-growing intangible nature of new IP, a shift in the economic marketplace from the West to the East, and the empowerment of non-State factors through the Internet. These affect how and why companies invest in certain types of IP and how they engage with the information they already own, such as shifting towards a more knowledge-based investment plan, providing a competitive edge, whereas some decades ago physical capital was king. Also the shift from West to East has, for the first time, presented a world where the East is slowly catching up with the West in the production and creation of both information and knowledge. Finally non-State factors play a huge part in the impact that individuals and collectives can have on all types of IP, more notably the denial of SOPA (Stop Online Piracy Act) in the US. How and why new networks impact this framework is new and presents and interesting paradigm of interaction.

So how should this change be addressed in the field of IP? Some geographical and geopolitical issues have to be tackled, according to Dr. Gurry. The impact IP has on any country's economy harbors a culture where countries attempt to attract talent, and even conduct espionage to attain secrets relating to new developments. This culture would have to be addressed before it becomes a problem, potentially through international agreements relating to the acquisition of talent and the limiting of any illicit activities. What IP will encompass, and does currently, might also need addressing. This means that, according to Dr. Gurry, "[t]he boundary between science and technology, or discovery and invention, is more and more difficult to draw, especially for lawyers" -  creating uncertainty over what subject matter IP would cover, as shown by the recent battle over gene patents. Dr Gurry also raises some concerns should any given legislature or judiciary overlook the public's opinion in this matter: "If IP, whether through the legislature or the judiciary, takes decisions about 'appropriability' that are not in consonance with the sentiment of the general public, it will lose the social credibility on which all good regulation depends". Some signs of detachment can be noted, especially with some opinions pointing to even the abolishment of the current copyright regime. This can lead to problems in the long-run.

Finally access to IP has to be addressed, where Dr. Gurry points out two competing interests: "For policy-makers, the challenge will be to try to orchestrate an informed and reasonable public debate [over access to IP]. For corporations, the challenge will be to balance being competitive and getting a financial return on investment, on the one hand, with management of a potentially hostile public response, on the other hand". A balance between the two would be incredibly challenging to create, and it would have to periodically be addressed, as one can see from the current imbalance in especially copyright relating to fair dealing for example.

At the end of the lecture Dr. Gurry does leave us with something to think about:
"If you were in the 18th or the early 19th century, new wealth was being created, in new ways and on a rather massive scale, by physical capital and the process of industrialization. Industrialization spawned the great ideological debates and cleavages that shaped the world for the next 200 years – capitalism, Marxism, communism, socialism – and they all centered on property, the control of property and its use by the State and citizens. Now, in the early 21st century, new wealth is being created, in new ways and on a rather massive scale, by intellectual capital and virtualization. This is what we are seeing in what I have described – the contours of the new ideological battle lines that will shape our world for the foreseeable future."
Source: IP Australia

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