7 November 2019

Intellectual Property “Rights” or Monopoly “Privilege”?

By Charles Oppenheim

A major issue in copyright is the balance between the uses of copyright to protect commercial interests versus the public interest in access to knowledge. Much of the debate has been in the scholarly publishing arena, where authors of scholarly outputs are pressurised to either assign copyright, or grant an exclusive licence to commercial publishers in return for the kudos and promotion/funding opportunities that result from having got an output published. The debate, though, is broader than just this.

There is considerable concern about the future of the planet due to global warming, which in turn requires an informed public to participate in debates and policy-making, but that is not possible if much of the evidence is behind paywalls. Civil society groups rightly argue that current copyright norms and practices compromise the necessary access to the required knowledge. Movements have emerged that favour making copyright and other forms of intellectual property appropriate to the goal of affordable, appropriate access to information for the good of humanity. This raises a fundamental question: who should have priority in copyright, the general public or private corporate interests?

The excessive length of copyright protection means that the balance is too heavily skewed in favour of private corporate interests. In other words, profits rule. Even the term “rights” in “Intellectual Property Rights” is challenged, as these “rights” should really be considered as “monopoly privileges” which can damage fundamental human rights. Similarly, critics have complained about the terms “theft” or “piracy” when referring to deliberate infringements of copyright, as such terms imply that anyone who does such actions is automatically cast as the bad guys. One way of reducing the strength of copyright are compulsory licences to restrict and reduce the power of intellectual property rights. Such licences may or may not involve payment to the rights owner.

The idea of compulsory licences raises the question of when, and to what extent, they should be used, and should every country in the world have compulsory licences written into their legal systems? There are already compulsory licence provisions for translation and reproduction of copyright works in some developing countries, but such compulsory licences have rarely been used. Countries have been very reluctant to use them for fear of antagonising the private sector, and perhaps reducing investment from abroad. An alternative approach to compulsory licences is a significant expansion of exceptions to copyright, but here too, one can expect vigorous opposition from vested commercial interests.

My own view is that the current copyright system is too heavily skewed in favour of copyright owners, and that rebalancing by changes to the law is required. This requires a concerted world-wide effort through WIPO. But expect the fight to be difficult; the vested corporate interests have the money and lobbying power to delay or nullify any such efforts, and WIPO’s own history in these debates so far does not inspire confidence about its ability to push the agenda forward at a reasonable speed.