Patents and intellectual property rights

Authors: Brownsword, R.

Pages: 354-367

ISBN: 9781844656370

DOI: 10.4324/9781315744520-35


Intellectual property rights (IPRs) operate across a broad spectrum of protected subject matter, including innovative products and processes, literary, creative and artistic works, trade secrets, trade marks, designs and images, and so on. The particular interest at issue might be one of being recognized as the originator of a work (in civilian legal systems, the so-called droit d’auteur is seen as an important moral right); however, in the Anglo-American tradition, the principal driver is the interest in controlling access to and use of the property so that its commercial value can be realized. In the marketplace, IPRs typically represent an asset having some cash value; and whether the claimant is a multinational pharmaceutical company or a celebrity in the music or film industry, IPRs matter. Within the range of IPRs, it is patents and copyright that tend to be most frequently in thespotlight; and, not surprisingly, it is the breadth and depth of these particular IPRs that has attracted most discussion. Globally, the existing regime of copyright protection has been called into question by the serial violations of file-sharers. In the leading US Supreme Court case of MGM Studios Inc v Grokster Ltd (2005, 125 S.Ct 2764, (2005) 545 US 913), the evidence collected by MGM (the copyright holders) indicated that some 90 per cent of the files shared by using Grokster’s software involved copyright-infringing material. As Justice Souter, delivering the Opinion of the Court, remarked, “[in view of the fact that] well over 100 million copies of the software in question are known to have been downloaded, and billions of files are shared across the … networks each month, the probable scope of copyright infringement is staggering” (545 US 913 (2005) at 923). In the face of such large-scale non-compliance, one of the regulatory challenges is to find ways of making the law more effective, that is to say, more fit for purpose. However, it is clear that, for many – particularly for those who are involved in such movements as the Open Source Initiative, the Creative Commons and copyleft – it is not so much the (in)effectiveness but the (il)legitimacy of copyright law that is the real issue (see e.g. Lessig 2001). Although much could be written about the global ethics of copyright, in this chapter, the focus will be on patents. The chapter is in eight sections. I start with a thumbnail sketch of the way that patent lawdefines and then protects an “invention”. In the next section, I outline the mainstream debate about patents, where views are polarized to the point that one is pressed to declare that one is either for or against patents. In recent years, the patentability of inventive work in biotechnology has been at the centre of this storm and this vexed question is the focus of the third section. In the following three sections, I try to disentangle the claim that patents are unethical tout courtfrom the more nuanced claims that there should be more ethical regulation of (a) what is treated as patentable and (b) the scope and duration of patents. In the seventh section, a number of proposals for better and more equitable strategies to promote innovation are reviewed. Finally, in some short concluding remarks, the thread of the chapter is summarized. Broadly speaking, the thrust of it is that the shape and substance of IPRs, particularly patents, should track the public interest; that the public interest comprises both economic and ethical interests; and that, although there are many competing ethical views, there is a general commitment to respect for human rights. From this, it follows that, for patents to pass muster from a global ethical perspective, they must at least be compatible with the protection, preservation and promotion of human rights.

Source: Scopus