When a legal tool enthrones monopolies

Since 2000 and by approval of the General Assembly of the United Nations, 26 April was established as World Intellectual Property Day, in order to raise awareness of the role that intellectual property (IP) rights play in the promotion of innovation and creativity.

IP rights include copyright, patents, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications, and in some jurisdictions trade secrets. There are also more specialised or derivative varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US), supplementary protection certificates for pharmaceutical products (after the expiry of a patent protecting them) and database rights (in European law).

In the case of copyright, it is one of the human rights included in the Universal Declaration of Human Rights, recognising the moral and economic rights granted by law to authors (copyright) for the simple fact of the creation of a literary, artistic, musical, scientific or educational work, whether published or unpublished.

In the case of patents, it is a set of exclusive rights granted by a State to the inventor of a new product or technology, which can be commercially exploited for a limited period of time, in exchange for the disclosure of the invention. Patent registration constitutes the creation of an artificial monopoly, and falls under industrial property, which in turn is part of the intellectual property regime.

Industrial property grants two types of rights: the first is the right to use the invention, design or distinctive sign, and the second is the right to prohibit a third party from doing so. The right to prohibit (Ius prohibendi) is the most prominent part of industrial property and allows the right holder to request payment of a licence fee, also called royalty.

The two most important international agreements on industrial property are the Paris Convention for the Protection of Industrial Property of 1883 and the Agreement on Trade-Related Aspects of Intellectual Property Rights of 1994, the latter of which also served as the basis for the creation of the World Trade Organisation (WTO).

Although the official discourse indicates that industrial property protection was originally intended to stimulate the creativity of companies and individuals, in practice patent legislation had already existed in colonial systems since the 15th century as mechanisms (which openly discriminated against the colonies in relation to the metropolis) for granting and protecting the use of technologies.

In many colonies, patent regimes complementary to the metropolitan patent system were established; they were an instrument of technological policy with the aim of establishing new industries, but they were also economic models that emphasised mercantilism, to justify a more efficient exploitation of the wealth of the colonised peoples, with an extractivist and monopolistic mentality. By emphasising economic liberalism, they sought to eradicate trade and industrial restrictions.

For example, in many countries there were patents of introduction, also known as patents of importation, which was a form of protection recognised in Spain and its overseas territories. The aim of this legislation was to encourage the imitation of foreign technologies, regardless of whether or not the patent applicant was the original inventor.

Today, the charging of licenses for the use of patents continues to be an extractivist colonialist device that serves to perpetuate the theft and the artificial increase in the cost of productive processes, for the investment in knowledge or industrial property whose payment is largely cancelled. The territorial and nationalist colonialism of modernity has led to a post-modern, global and deterritorialised colonialism.

At the beginning of the 21st century, an overwhelming concentration of wealth in the hands of a few billionaires, the vast majority legalised by industrial and intellectual property institutions, began to take shape. Numerous international bodies have launched campaigns, pressures and wars to force developing countries to respect their copyrights, and submissive governments have launched campaigns to intimidate or threaten with prison sentences the potential user of unregistered software or the potential viewer of a record or video copied without permission.

In reality, industrial property is a legal weapon that has disastrous results, because it only serves to exploit each patent, making it more expensive to use or consume, and slowing down the development of new knowledge. For example, in the new technologies sector, it is common for patents to serve primarily to fuel costly legal battles. This is not about innovation, but simply about obtaining a legal weapon to blast rivals. In 2012 Google bought Motorola Mobility for 12.5 billion dollars in order to get its hands on its numerous patents. In the trade press it was said that the internet giant was interested in such a treasure trove only to the extent that it could help it in possible lawsuits against its competitors.

Giant technology corporations (such as Apple, Samsung, Microsoft and Google) regularly attack each other for patent infringement with every new product launch. They obtain injunctions from judges and thus delay the marketing of the new product by up to several months – a precious time to try to seize interesting market shares. Google’s purchase of Motorola Mobility allows it to regain ground in the patent race, as it had far fewer patents than its competitors.

One of the most emblematic examples of patent theft is Microsoft, a corporation that was born with the acquisition of the DOS Operating System licence, which gave rise to Windows and numerous other programmes in the technological ecosystem, such as MS Office, .Net and SQL, Skype, Visio, and others (such as Xbox, Surface, etc.), many of which have been acquired rather than developed thanks to its economic power. Many of its products have been born as “beta software” (known as such in computer science for not being finished), in order to be pioneers and position themselves in their markets, and each update or improvement implies numerous new patents and licences, generating expiration on the previous versions. Microsoft has more lawyers and licensing teams on its payroll around the world than staff involved in the development of new products.

Most inventions today do not require any specific protection. Just being at the origin of an innovation, in a fast-growing domain of activity, offers enough advantages (such as rapid progress under the learning curve and other factors) that there is no need to add a legal monopoly to them, but even so there are obvious and gigantic interests in not discussing possible new alternative mechanisms to stimulate creativity.

Benefiting from their monopolistic status has favoured numerous corporations in many economic sectors, promoting opportunism and violating the slightest ethical sense of social value. And as with everything in the capitalist system, the more important the profits they generate, the more voracious and corrupt their competitive behaviour is and the greater the damage they cause to producers and users, taking advantage of a totally questionable legality, affecting the privacy and freedom of others.

There are numerous anti-intellectual property movements around the world, such as the Free Software and Pirate Party Movements (which celebrate 26 April as World File Sharing Day) and even the Humanist Movement itself, which believes that vested interests that subjugate individuals, societies and entire peoples for nothing more than their ruthless drive to accumulate capital cannot be allowed to do so.

Giant corporations seize, through patents, ancestral plant species, human genomes, traditional technologies and even the cultural manifestations that have been the product of the often free and selfless work of numerous individuals over generations. An emblematic case was that of the US-based International Plant Medicine Corporation, which obtained a US patent for a plant variety of a sacred Amazonian plant: “ayahuasca”; picking a plant from a family garden in Ecuador was enough for such theft.

Corporate emporiums such as Monsanto, Disney or Sony, to name but a few of the most prominent in various fields, have registered traditional knowledge of peoples or have taken advantage of it to appropriate knowledge that historically belonged to members of societies and cultures. The case of pharmaceutical patents is so serious that it will be dealt with in another position paper.

It is often used to explain the issue of patents with the case of Francis Drake, who had two apparently contradictory titles: 1) he had an honorary title from the British crown, in recognition of his heroic deeds at sea and is considered an outstanding hero for this, while 2) he was nothing more than a pirate who dedicated himself to plundering ships carrying the riches extracted from America. In other words, the title of Sir and that of pirate were motivated by the same facts, he was authorised by the British crown to commit acts of piracy (and thus assault and plunder Spanish ships, so they were entrepreneurs, known as privateers and had what was called a “privateer’s patent”) and the Spanish carriers were assumed to be the victims of illegal privateering.

Just as the privateer’s patent was the privilege granted to appropriate by force what belongs to others, the patent of invention today is the authorisation to appropriate part of someone else’s property, through the privilege of ownership of an idea. What turns a criminal into a hero is the legal qualification given to him.

Finally, it should be noted that most of the world’s spending on basic science is funded by states and thus by society as a whole. The basic sciences are the fundamental sciences that have no practical, short-term purposes, but are the ones that broaden human knowledge the most.

These basic sciences have sustained the dynamics of science in all ages and at all times. Because they do not yield short-term benefits, the private sector shies away from investing in these developments and their operators are left waiting to see how they can get their hands on such knowledge once work in the basic sciences gains practical applications for production, communications, advances in the biological, social, and so on.

The more a state is influenced by the actions of private para-state corporations, the more parasitism that sector generates on the public sector, appropriating the practical results of research funded by society as a whole.

The International Humanist Party considers that the current exaggerated levels of protection of some forms of industrial property cannot be sustained by the theoretical function of encouraging innovation. The advances in the field of knowledge that today form part of the current state of science are the product of the accumulated development of the human race throughout the historical process of our species, with contributions from diverse cultures, not only from Western culture. The current central incentive of profit demanded by a few must evolve towards the incentive to contribute to the benefit of building societies where happiness and freedom are constructions of human beings as a whole.

International Coordination Team
Federation of Humanist Parties