Instigator of the Theme
On Friday-August 26, 2022- a symbolic event of global and enduring significance occurred which instigated this discussion on intellectual property. The bold headlines of most mainstream media outlets of that day ran typically as follows:
Moderna sued Pfizer and its German partner BioNTech for patent infringement in the development of the first COVID-19 vaccine approved in the United States, alleging they copied technology that Moderna developed years before the pandemic. The lawsuit, which seeks undetermined monetary damages, was filed in U.S. District Court in Massachusetts.
The suit also would be filed in the Regional Court of Duesseldorf in Germany, Moderna said in a news release. "We are filing these lawsuits to protect the innovative mRNA technology platform that we pioneered, invested billions of dollars in creating, and patented during the decade preceding the COVID-19 pandemic," Moderna Chief Executive Stephane Bancel said in the news release.
Specifically, Reuters gave background update concerning how the U.S. Food and Drug Administration granted emergency use authorization for the COVID-19 vaccine first to Pfizer/BioNTech in December 2020, then one week later to Moderna. Moderna's COVID vaccine - its lone commercial product - has brought in $10.4 billion in revenue this year while Pfizer's vaccine brought in about $22 billion. Pfizer said the company was confident in its intellectual property and would vigorously defend against the allegations.
Of course, prior to this Moderna case, there had been series of similar even if less popular instances; as a legal expert observed, “a copyright lawsuit can get contentious; some have even reached the Supreme Court”. In any case, just because a patent assigns exclusive ownership right, it doesn't mean another person or entity is not going to use the product or invention without obtaining permission. Court cases can drag on for years and eventual settlements may hardly justify the battle.
Whatever the outcome of the litigations, our interest is to explore the key issues pertaining to the theme especially its implications for third world development, starting with its definition.
Defining Intellectual Property Right
In the words of the World Intellectual Property Organization [WIPO] - the United Nations agency dedicated to making Intellectual Property [IP] work for innovation, IP refers to creations of the mind – everything from works of art to inventions, computer programmes to trademarks and other commercial signs, with the clarification that it covers a vast range of activities, and plays an important role in both cultural and economic life. This importance is recognized by various laws which protect intellectual property rights-across countries.
As rendered by Legal Desire, The Intellectual Property Rights (IPR) are the legal rights that are conferred as an exclusive right, to the creator or the inventor in order to, protect his invention or creation for a period of time. Originally, only patent, copyrights and trademarks of industrial design were protected under the IPR but, now it has a much wider meaning. The general position is that IPR enhances technological advancement as it’s a mechanism of handling piracy, unauthorized use and infringement; it gives protection to the trade secrets and undisclosed information which, are important factors in the industries and the Research and Development [R & D] institutions.
Origins of IPR
There’s a long history of the Intellectual Property, “traced all the way to 500 BCE, when Sybaris, a Greek State made it possible for the citizens of their state, to obtain a patent for one year, for “any new refinement in luxury”. Since then, Patent, Copyright and Trademark laws have become more complicated over the centuries but, the intent remains the same.”
At the face value viewpoint, the essence and motif of IPR comes across as wholly positive almost without drawbacks given its popular acceptance as being “important to promote and stimulate research and development. This is to ensure the rights of the individuals and organisations, the protection of their innovative ideas and research and so, they can reap the benefits of their hard work as it is extremely important, for the growth and development of humanity by efforts of individuals- as IP empowers enterprises, individuals or other institutes, to exclude others from having the right or using their name without the permission, with their creations/innovations. Thus, it gives the investors, a reasonable reason to recoup their investment, in the field of research and development.
The IPR system has blossomed in contemporary era to the level where there is in existence a global body, World Intellectual Property Organization [WIPO] which has published a booklet expressly entitled: “What is Intellectual Property?” As to be expected, the booklet concentrates on the benefits of the IPR system.
It is pertinent to acknowledge the drawbacks inhering in IPR, notwithstanding its celebrated benefits- notably the incontrovertible one of encouraging inventions. This benefit is anchored on the fact that creativity and inventiveness have the potential of spurring economic growth, create new jobs and industries thereby enhancing the quality and enjoyment of life. The WIPO is very explicit on the benefits, outlining how:
- The multibillion-dollar film, recording, publishing and software industries – which bring pleasure to millions of people worldwide – would not thrive without copyright protection
- The patent system rewards researchers and inventors while also ensuring that they share their knowledge by making patent applications publicly available, which helps stimulate more innovation; and
- Trademark protection discourages counterfeiting, so businesses can compete on a level playing field and users can be confident they are buying the genuine article.
At the same time, the argument in some quarters that the system is largely superfluous if not directly detrimental must be acknowledged. On balance, therefore, and as a commentator objectively presented in a broad assessment, “protection of intellectual property rights serves a dual role in economic development. While it promotes innovation by providing legal protection of inventions, it may retard catch-up and learning by restricting the diffusion of innovations.”
IPR restricts knowledge sharing and favours profiteering
As MR Online in its November 5, 2018 edition illustrates with explicit focus on the USA:
. . . There is an enormous amount of money at stake with intellectual property rules. Many items that sell at high prices as a result of patent or copyright protection would be free or nearly free in the absence of these government granted monopolies. Perhaps the most notable example is prescription drugs where we will spend over $420 billion in 2018 in the United States for drugs that would almost certainly cost less than $105 billion in a free market. The difference is $315 billion annually or 1.6 percent of GDP. If we add in software, medical equipment, pesticides, fertilizer, and other areas where these protections account for a large percentage of the cost, the gap between protected prices and free market prices likely approaches $1 trillion annually, a sum that is more than 60 percent of after-tax corporate profits.
From an entirely different but complimentary angle of critique, Peter Drabos- in his 312-page book entitled, “A Philosophy of Intellectual Property”, published in 2016 by the Australian National University- made the brave assertion as if in anticipation of our own perspective that: “I am against intellectual property rights in their present form and more or less against them in any form. Copyright in its present form underpins, amongst other things, a global oligopolistic structure of academic publishing that costs academics, students, universities and citizens dearly”. He went further to highlight the specific case of knowledge generation and sharing at the university level by declaring:
If the production of knowledge at universities is to be used to solve the world’s many problems it must be diffused. Copyright is a giant barrier to this diffusion, one that global publishers and their lobbyists seek to lift ever higher. Through obtaining intellectual monopoly privileges from morally corrupt legislatures they inhibit the diffusion of knowledge that is central to the growth of equality amongst people and nations.
If at the general, global scene there is strong ground for opposing intellectual property rights, elevating the discourse to the level of the fate of developing nations in that global order literally turns the IPR culture into legalized crime.
On February 12, 2021-Jomo Kwame Sundaram published an article, titled: “Intellectual property cause of death, genocide” to highlight how IPR denies access to critical medicines by developing countries through high pricing of drugs- well above what free market forces would have set. Basically, the IP system discourages, rather than encourages cooperation and sharing, both essential for accelerating progress. This is because IPRs have effectively denied access to patented formulas and processes except to the highest bidders.
IPR and its implications for developing economies
The Paper, “Is Intellectual Property the Root of All Evil? Patents, Copyrights, and Inequality”, presented by Dean Baker- at The Great Polarization: Economics, Institutions and Policies in the Age of Inequality conference, University of Utah, Department of Economics, September 27–29, 2018- provides an instructive insight into the logic underlining the whole IPR apparatus. The author isolated three issues of relevance to register the thesis, namely:
- .Patents, copyrights, and other forms of intellectual property are public; policy. Grants of intellectual property are explicitly designed as a mechanism by which the government provides incentives for certain types of activity-as illustration, the government grants their holders monopolies, allowing them to charge prices that vastly exceed the free market price;
- There is an enormous amount of money at stake with intellectual property rules. Many items that sell at high prices as a result of patent or copyright protection would be free or nearly free in the absence of these government granted monopolies; and
- The effect of these protections is to redistribute income upward. This can be seen most easily in looking at the origins of the fortunes of some of the USA’s richest people, starting with Bill Gates. It also is apparent from looking at the leading companies in terms of market capitalization and profits, starting with Apple.
This is why the Intellectual Property Law is considered a negative right because it is a right to exclude others from using the property generated by the registered owner. It is thus obvious that this law anticipates pre-emptive measures to prevent the misuse, as the property is intangible per se. Deriving from the observed detrimental effects of the IPR system against the backdrop of COVID-19 experience, in October 2020, India and South Africa submitted a proposal for waiving “certain provisions of the TRIPS [Trade-Related Aspects of Intellectual Property Rights] agreement for the prevention, containment and treatment of COVID-19.” Ironically and instructively so, the proposal was hotly resisted especially by some industrially advanced nations essentially on one argument: the importance of maintaining an ironclad IP system in the name of innovative practice. As the Global Research platform pointed out, were the waiver to be granted, patents would not be enforced or granted on “all COVID-19 drugs, vaccines, diagnostics, and other technologies, including masks and ventilators, for the duration of the pandemic.” Collaboration in research and development (R&D), manufacturing, scaling up and supplying COVID-19 tools could also take place.
Forging a way out of the IPR constraining box
In order to solve a problem, the nature of its real consequences must be understood as a step towards redress. In this vein, perhaps the most indicting charge against IPR is the offer by Michael Perelman in the 2003 article published in Monthly Review Magazine, entitled: “The Political Economy of Intellectual Property”-with the following far-reaching declaration: The dramatic expansion of intellectual property rights represents a new stage in commodification that threatens to make virtually everything bad about capitalism even worse. Stronger intellectual property rights will reinforce class differences, undermine science and technology, speed up the corporatization of the university, inundate society in legal disputes, and reduce personal freedoms.
In response to the question, ‘Does IP harm or help developing countries?’ in the Journal of Law, Technology & Policy, Professor Reichman had cautiously averred: “There’s abundant evidence that IP as an institution can help every country. But it’s also true that intellectual property laws are public goods, and like all public goods, they must be wisely managed. The same copyright laws that can promote the music industry in Africa can also make access to textbooks and scientific knowledge unaffordable for most students in Africa unless they’re managed properly”. It is pertinent to note a footnote provided to the response, namely, that when the U.S. was a developing economy, it was not a signatory to the IP convention. Thus, this nuanced response touches on two interrelated issues: the national context matters in dealing with IP system and second, the quality and orientation of national leadership is of primary importance-as we are never tired of emphasizing in this medium.
Already, there are suggestions on how to fight against the onslaught of copyrights on knowledge sharing. Some of the suggested measures, with the universities leading the fight-based on standard peer-review- include “free distribution of electronic texts and a small price to meet the cost of publishing the hard copy version”-tagged ‘express model’ by the University of Australia which argued that: “Academics should be given strong incentives to publish in these express university imprints. There would be lots of benefits. As more texts and journals became free, universities would pay less in excessive copyright license fees”. Their projection is that:
Eventually a global network of universities committed to being custodians of the intellectual commons would emerge. A central goal of the network would be continuous innovation in dissemination strategies aimed at growing the intellectual commons. Universities would strive to improve their free service as broadcasters of knowledge in the intellectual commons. Members of the network could determine rewards and incentives for joining the network. One also hopes that being part of a network of universities that was committed to a vision of the intellectual commons based on equality and the diffusion of knowledge would be seen as inherently rewarding.
The prevailing global order presents itself as both a challenge and an opportunity for development. In this vein, a developing economy such as Nigeria owes itself the obligation of taking decisions in respect of IPR and other international conventions and treaties with very open eyes on the ball of strategic national interest. I come in peace, please.
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