MEDICAL INNOVATION & IP
Intellectual Property (IP) aims to encourage socially useful innovation by bounding and protecting knowledge within a robust legal framework. In effect it is a contract between a state and an individual to the long term benefit of both. In medicine for example, profitable patents on new drugs help boost investment in discovering them. Thats the plan, but there’s a catch…
All mental works are built up piece-by-piece via critical reflective enquiry. Knowledge is intangible – it cannot be seen, touched or physically measured. IP such as a computer game, or a circuit layout may take a lot of effort to create, yet be trivial to repeatedly copy. Should it become uncontrolled and not protected under the rule-of-law, it can quickly become costless. Ideas are universal – independent of any rendering system or language. Because of the abstract nature of IP, it requires ‘corporealisation’ – to make concepts ‘physical’ to be of use. Underpinning IP law is much fascinating philosophy that gets to the heart of what is real, of what reality itself is.
As we catalogue and encode (via computers) humanity’s knowledge; with a parallel virtual world being assembled in front of our eyes – IP may assume greater importance, and be enforced ever more vigorously.
There are many forms of IP: patents, circuit layout design protection, plant breeder’s rights, indigenous IP rights, confidential information, trade marks, passing off, copyright, moral rights, database rights, unregistered designs/design rights, registered designs… The most important however are:
Patents: Protect what makes things work – like what makes a jet engine spin or the chemical formula of a drug. They must be novel, industrially applicable inventions, that require an inventive step. They can last up to 20 yrs.
Trade Marks: Distinctive signs (like words and logos) that graphically distinguish goods and services in the marketplace. They function like ‘badges of origin’ and a form of advertising. They may be renewed indefinitely.
Designs: Protect the appearance of a product/logo, from the shape of a car to a toy. They can last up to 25 yrs, whilst the automatic design right can last up to 15 yrs.
Copyright: Is an automatic right which applies when the work is fixed, that is written or recorded in some way. Applicable to musical, literary, film media etc. The duration can be variable – but is often the life of the author +50 yrs.
Should IP even exist?
It is possible to present arguments both for and against the use of IPRs in a modern society. While there may be a case for indigenous IPRs and a tiered system for use on the unequal world stage (see TRIPS), it is widely held that, the current legal position of IPRs is both sensible and worthwhile to society – if only because it considers human nature. Others argue with some force, that innovation is actually far better fostered by prizes, secrecy, and other means rather than through the often asymmetric, slow legal system.
- Unjust Enrichment: The creator of any IP has laboured to produce works that may in time bring a valuable contribution to society as a whole. Is it fair that others should ‘reap without sowing’? That they should be so unjustly enriched?
- Natural ‘Rights’: What is property? both real (a house) and intangible (an idea). By labouring, the creator puts a boundary distinction and encloses a territory between themselves and the common. Whilst rights are generally a good thing we should think of them as useful devices that quite often simply don’t work; with the great debate as always being the drawing of reasonable boundaries.
- Utilitarian: Much common law thinking (UK, US, CAN, AUS, NZ etc) is summarised by: that which provides the greatest benefit to the greatest number. If it works – then let it continue, despite various flaws and inefficiencies and the cost of implementation. Whilst other methods in certain circumstances may be more suitable e.g. direct government funding, they often suffer from lack of individual incentive and consequent mediocre results.
- Law & Economics: Socially desirable investments may be deterred if IP creators cannot recoup their costs. Charging a price for a public good reduces access to it, making it artificially scarce, but increases the incentive to create it in the first place. The ‘power to exclude’ is often a complex series of dynamic trade-offs.
Ownerless and Costless
We are at the beginning of the information age. Even now we can effortlessly and almost instantly access vast tracts of ‘open’ knowledge at the click of a button. New thinking and developments are possible; and at a speed and a price not possible just 10 yrs ago. This stands in contrast to the bounded controlled knowledge protected under the rule-of-law by intellectual property rights.
The broad term: open source, covers many ideals. In time, it is hoped Arclight™ itself and any spin-offs, can become true ‘commons’ projects.