Intellectual rights and wrongs

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What do the arguments over Napster and South African drugs have in common? Both illustrate weaknesses in the existing regime for the management of intellectual property.

There is not much in common between geeks who exchange MP3 files on the hard disks of their computers and the South Africans who are fighting to contain the spread of AIDS. But both groups are in the frontline of disputes about the use of intellectual property.

Many people who would not dream of shoplifting a compact disc feel no compunction about downloading copyright music from the internet. The South African government’s record in protecting the rights of Western investors is impeccable, as it needs to be if the country is to attract the outside help needed. It will not expropriate the factories and mines of foreign companies. But it sees no reason not to import cheap generic drugs.

But music and pharmaceutical companies claim that their intellectual property has the same status as their tangible property. Music fans and aids victims are engaged in theft, and Napster and the South African government are receivers of stolen property. If other people do not see it that way – and other people clearly do not – then what is needed is a process of education and enforcement. So the issues are paraded in the courts and at the World Trade Organisation.

Common sense is right and the legal theory of intellectual property is wrong. An essential characteristic of tangible property is the right to exclude other people from its use. My toothbrush is mine, not yours. No-one may come into my house except at my invitation. I am jealous of these rights, and everyone will agree that I can look to the police and the legal system to enforce them.

The last thing creators and inventors want to do is to keep their creations and inventions to themselves. They are promiscuous, often tedious, in promoting them.

What creators and inventors want is recognition. The rule of the academic world is that appropriating other people’s ideas is encouraged, even required, but that you must make proper attribution. Usually this attribution is in itself the most important form of recognition. Articles in academic journals are not paid for. Authors of academic monographs receive royalties but they cannot live off them. Most of the creators of great intellectual property, from Jane Austen to Einstein, obtained little direct cash reward for their achievements. But who does not envy their fame! Money is nice, even essential, but it has never been the mainstay of creativity and invention: and if we want to stimulate creativity and invention, large cash prizes are only one of the weapons we should use.

The debate has become confused because the interests of companies in businesses related to creation and invention are different from the interests of creators and inventors themselves. Such companies want to build wide-ranging commercial monopolies, and to exploit the protection offered by intellectual property for that purpose. That is precisely the issue at the heart of the Microsoft anti-trust case.

The public interest is to ensure that there is as much innovation as possible: that it happens as quickly as possible: and that it is disseminated as widely as possible. We need to provide incentives to innovate without allowing a previous generation of innovators to intimidate competition, block entry, or restrict the exploitation of new technologies.

That means that a balance needs to be struck, and at the moment it is not at all clear that we have the balance right. The internet offers an exciting new technology for distributing music. We have to weigh the interest in developing that technology as effectively as possible against the need to ensure that there is sufficient incentive to produce new music and new recordings. But it is the former, not the latter, that we need to worry about. If there is a problem in the music business, it is not a shortage of material: it is that there is already too much encouragement to produce large amounts of derivative material of low quality. Record companies have gone to court to protect their existing business model against the threat posed by new technology.

The future of MP3 seems trivial beside the problems that AIDS poses for South Africa. And here too the problem is dissemination rather than production. Incentives to AIDS research are already large. There is no area of pharmacology in which the commercial and reputational rewards of successful innovation are potentially larger. The issue is how to make the benefits available to the people affected, of whom the majority are very poor.

The positions of music and pharmaceutical companies have little moral legitimacy, which is why they are receiving a bad press. If they stand on their alleged rights, they call in question the validity of the framework of intellectual property which gives them these rights. In both cases, a solution should be found by the industries themselves. The music business needs to make its libraries available through the internet. The pharmaceutical industry must establish systematic mechanisms for making drugs available at low prices in poor countries.

Intellectual property legislation confers too much protection on existing, well-established businesses ‘O! it is excellent to have a giant’s strength, but it is tyrannous, to use it like a giant’. The lesson of history is that giants who use their strength are cut down.

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