November 2012        

Intellectual property rights:
Who benefits?

“In the twentieth century, the physical sciences were the centre of development, whereas in the twenty-first century it’s clearly the biological sciences which are. Because these are closer to human life, there may be a greater element of politicisation. But there is certainly one counter-factor: increasingly, scientists have been integrated into the system of capitalism, both as individuals and within scientific organisations. Forty years ago it would have been unthinkable for somebody to speak of patenting a gene. Today one patents a gene in hopes of becoming a millionaire, and that has removed quite a large body of scientists from left politics.”
—Eric Hobsbawm (1917–2012), “World distempers,” New Left Review, July–August 2012.
      This extract is part of an answer given to a question about the role of science in the culture of the left and whether or not the obvious importance of environmental issues can bring about a fruitful re-engagement between them.
      Hobsbawm correctly identified an important factor contributing to the integration of scientists in the capitalist system. But an examination of “intellectual property rights” reveals the contradictions underlying them.
      Intellectual property is an explicitly modern notion. The first patent law was enacted in 1623. Early laws were limited in scope and restricted to a few types of information; the broader interpretation of these principles used today in the western world is quite modern, certain elements having been added only within the last few years.
      The idea behind such “rights” is that the fundamentals of an invention are made public, while the inventor for a limited time has the exclusive right to make, use or sell the invention.
      Discoverers and inventors are thought to deserve special reward or privilege because of the benefit of their discoveries or inventions to society. “Public good” is not considered a reward in itself, and—true to classic economic theory—certain incentives are needed to encourage invention or innovation.
      The whole argument regarding intellectual property rights is based on a contradiction, namely that in order to promote the development of ideas it is necessary to reduce the freedom with which people can use them. But intellectual property rights create a tension between an individual’s claim to the product of their labour and undeserved monopoly privilege granted by the state.
      The dominant argument is that a person who labours upon resources that are either un-owned or “held in common” has a natural property right to the fruits of their efforts, and that the state has a duty to respect and enforce that natural right.
      These ideas are widely thought to be applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem in some sense to be “held in common” and where (intellectual) labour seems to contribute so importantly to the value of the finished product.
      Throughout much of human history the possession and distribution of property was mediated by the use of force. Laws to protect property rights were developed to protect, in the first instance, land. Later, when manufacturing became the dominant mode of economic activity, laws grew around the centralised institutions that needed protection for their reserves of capital, labour, and machinery. Today, to a large extent, information has replaced land, capital and machinery as a commodity that needs to be protected in order to protect control over the means of production.
      The earliest patent and copyright laws were geared, to some extent, towards benefiting the individual artisan, or the author of a literary work or a musical score. In practice today most creators do not in fact gain much benefit from intellectual property. Independent inventors are frequently ignored or exploited. When employees of corporations and governments have an idea worth protecting it is usually registered or patented by the organisation, not the employee. As intellectual property can be sold, it is usually large corporate entities that benefit.
      To turn scientific knowledge into a commodity on the market arguably inhibits science. Companies may take out a patent, or buy someone else’s patent, in order to inhibit others from applying the ideas.
      One of the newest areas to be classified as intellectual property is biological information. Courts in the United States have ruled that genetic sequences can be patented, even when the sequences are found “in nature.” This has led companies to race to take out patents on numerous genetic codes. In some instances patents have been granted that cover all transgenic forms of an entire species, such as soybeans or cotton.
      Transnational corporations are patenting genetic materials found in Third World plants and animals, so that some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries.
      Large pharmaceutical companies have generated superprofits through the patenting of widely sold drugs. But drugs that sell in the market may have little to do with the health needs of the global population—for often there is nobody to pay for drugs required to treat diseases in the poorest countries. Research and patenting in pharmaceuticals is driven not so much by therapeutic needs as by the need of companies to maintain their superprofits at present levels. Simultaneously, the development of new drugs has become more expensive because of more stringent regulatory laws. This is a major reason for the trend towards global mergers.
      So creation, which corporations seek to protect, occurs within a system where those who make the money are rarely those who create. The alienation of the innovator or author from their product is not an issue; yet the innovator or author is put to the forefront when a defence of intellectual property rights and the incentive they provide for creation is needed.
      Until 1891 the United States did not recognise foreign copyright. Today it has become the international advocate of intellectual property protection, adopting the high moral ground that the issue is the protection of creative and innovative work, though the reality is that the creators are not the primary benefactors of the intellectual-property system.
      This allows the United States to present the whole issue as an organised effort by foreign countries to systematically usurp American creativity and technological knowledge—the “innocent victims” being American companies, such as Microsoft, Merck, or Walt Disney!

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