To Share or Not to Share
In my postgraduate course on Commercialising Innovation I review intellectual property (IP) and the laws surrounding its protection and use. When we reach this stage in the program, I feel we are confronting a topic at a watershed: on one side is the traditional IP system, and the rules surrounding patents, copyrights, etc.; on the other side there is an unclear and emerging regime, forced on us by having to deal with a digital world where most information is generally available cost free. The transition is recent, roughly before and after 2000, and we’re still in the watershed, the terrain is misty, marshy and muddling. This is a huge topic, with many books and journals, and a plethora of complications and competing issues. The millions of words make it clear the system’s riddled with stresses and strains. Two examples to illustrate the challenges, before moving on to briefly consider whether we could change much of what is being done right now. Can we rethink IP protection in the 21st Century? Or even abandon protection altogether?
The world of IP protection had been relatively straightforward to the end of the 20th Century as it dealt with intellectual activity manifested in things, objects. Most patents were applied to inventions, physical devices that contained a novel technology, quite often devices you could see, touch and easily take apart. Similarly, copyright was ‘visible’, covering intellectual activity realised in creative works, written materials and visual items ranging from artworks to designs.
Both these forms of protection have a long history, reaching back to medieval English law. The 1624 Statute of Monopolies is considered the origin of patent law; the Statute of Queen Anne in 1710 the first step in copyright. Inevitably, early simplicity has been overtaken by complex rules and regulations, and steadily accumulating legal precedents. Global consistency in IP protection provisions is the responsibility of the World Intellectual Property Organisation, (WIPO), which defines IP as “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce … By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish”. [i] To achieve this, IP laws give people and businesses rights for a limited period of time, giving “economic incentive for their creation, because it allows people to profit from the information and intellectual goods they create. These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators”. [ii]
In this system, commentators agree the word property “presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is “indivisible”, since an unlimited number of people can “consume” an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation: a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or literature can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods’ wide use is the primary focus of modern intellectual property law.” [iii]
Sounds good, but in the last 20 years, strains have been growing, well illustrated in two cases, the first concerning patents and genetic materials, the second over copyright extensions.
Traditionally, a patent was granted for an invention (based on a novel idea), most often a new method or process of manufacture. By definition a patent can only be granted if the proposal is demonstrably new, and involves an ‘inventive step’. As you can imagine, patenting takes some time as the registration system requires extensive checking to ensure this innovation has not been created before. Ownership is granted to the inventor or person (and companies are ‘persons’ in law) who derives ownership through the inventor. This usually means employees cannot claim a patent if they developed an innovation in the course of their work. [iv] Patentable subject matter includes processes, substances, business methods, computer programs, and games, but not algorithms, discoveries, methods of human treatment, living organisms, computer program as such, nor “laws of nature, naturally occurring physical phenomena, and abstract ideas”.
Enter big business, as companies have increasingly sought patents for processes that were not inventions, but discoveries, (together with claims for new methods of human treatment). A major issue has centred around the patenting of human genes. This took off after June 2000 when the human genome was almost completely mapped. Private and public entities unleashed a flood of patent requests for genes and parts of gene sequences. There are some 30,000 human genes, and up to 15% of these were patented. To be clear, a gene patent gives an exclusive right to a specific sequence of DNA, whereby the patent holder, usually a company, has sole control over how the gene can be used in commercial settings, such as clinical genetic testing, and in non-commercial settings, including research, for 20 years from the date of issuing the patent.
This situation changed on June 13, 2013, when the U.S. Supreme Court unanimously ruled that naturally occurring genes and genetic sequences were not patentable. The case centered on patents for the genes BRCA1 and BRCA2, genes found in all humans, but mutations in which increase the risk for breast cancer. It invalidated the patents on these genes, because DNA is a “product of nature.” Correctly, the Court decided that because nothing new was created in discovering a gene, there was no intellectual property to protect. Prior to this ruling, more than 4,300 human genes had been patented, but the Supreme Court’s decision invalidated those gene patents, making the genes readily accessible for research and for commercial use in testing.
Excellent, you might think. However, the decision of the Supreme Court contained a further decision, one which supports patenting, even though their decision appeared to deny gene patents. In its ruling the Court did allow DNA manipulated in a lab to be eligible for patenting on the grounds DNA sequences altered by humans are not found in nature. In essence, the Court allowed the patentability of a type of DNA known as complementary DNA (cDNA). This form of DNA is produced from the molecule that gives the instructions for making proteins (called messenger RNA). In other words, while the decision by the Court on the non-patentability of natural genes was clear and irrefutable, with regard to the patentability of cDNA, the Court held that “cDNA does not present the same obstacles to patentability as naturally occurring, isolated DNA segments”. As you can imagine, this distinction has raised considerable controversy, many arguing “cDNA is not patent eligible [because] the nucleotide sequence of cDNA is dictated by nature, not by the lab technician”. Without getting bogged down, cDNa is what our DNA would look like if it were purged of all introns (DNA segments which are not part of genetic instructions, and eliminated when the DNA is copied to form RNA). The Court argued, wrongly, “cDNA is an artificial creation, even though it contains the same data as the mRNA, which is a natural creation.” [v] It’s a fine distinction, but enough for the Supreme Court, stating “the lab technician unquestionably creates something new when cDNA is made”.
What’s going on here? Let me try an analogy. Let us suppose a man asks his neighbour to keep an eye on his house while he is overseas for a month. In the garage are three cars, including a beautifully maintained 1972 MGB. Aware of this, the neighbour had converted his garage into workshop, with a cleverly adapted pneumatic jack. He drove the car around to his garage Over the next two weeks he took it completely apart, and then reassembled it. He had the MGB ready to drive, even emptying the ashtray and cleaning the carpets. When the owner returned from overseas, he went to his neighbour to find his car. ‘It’s mine now: I completely reassembled it!” Would that stand up in court? No, it was still the neighbour’s car (even though the neighbour had cleaned it, of course!). So why would reassembled DNA be any different? The Supreme Court’s decision wasn’t only about one piece of DNA (one reassembled car, as it were). Rather it can be used by courts to justify patent claims in cases where a man made contribution was made, however trivial, to pre-existing natural matter, with the result no distinction remains between discoveries and technology, allowing the appropriation of natural matter by companies.[vi] Biotech companies have been delighted at the control they can acquire. Big business wins yet again.
The second case has to do with copyright, and in particular with Disney’s antics to keep Mickey Mouse protected (in so doing, making the copyright law ‘mickey mouse’!). This may also seem rather technical, but it is worth reading on as the outcome is important here, too.
When copyright law was first codified in the United States under the United States Copyright Act of 1790, the copyright duration was limited to 14 years but included a provision that it could be extended for an additional 14-year term if the creator was alive. Years later, in 1831, the Act was amended to allow for an initial 28-year term, with eligibility for a 14-year extension, and, in 1909, the Act was changed yet again to allow for a 28-year renewal instead. In 1928, Walt Disney released the first Mickey Mouse cartoon: Steamboat Willie. At that point, Mickey was entitled to protection for 56 years (28 years for the initial term and the 28-year extension). On that basis, copyright on Mickey Mouse was to expire in 1984.
However, rather than lose control over the mouse, in 1984 (interesting date?) Disney lobbied Congress to change the Act. They succeeded: in 1976 Congress passed legislation to change the copyright scheme. Now individual authors were granted copyright protection in their lifetime, plus an additional 50 years! For works authored by a corporation, the legislation granted a retroactive extension for works published before the new system took effect. Now the maximum term for already-published works went from 56 to 75 years, extending Mickey’s protection out to 2003. But Disney wasn’t finished, and in 1998, Congress passed the Sonny Bono Copyright Term Extension Act of 1998, which lengthened copyrights for works created on or after January 1, 1978 to “life of the author plus 70 years,” and extends copyrights for corporate works to 95 years from the year of first publication, or 120 years from the year of creation, whichever expires first. Once again, Mickey Mouse’s protection was extended. Now, he will come out of copyright in 2023. Hang on, that’s just around the corner! What will Disney do now? “Disney would not possibly allow its most famous character to go into the public domain, would it? Although no one can be certain, if the past is any indication of the future, we can expect that Disney will, assuming they have not already, ramp up the lobbying effort and try to get Congress to pass additional legislation to extend its Mickey Mouse copyright. Whether or not this happens, it is indisputable that Mickey Mouse’s effect on United States copyright law has been profound.” [vii]
A cynic might say this is all about business. Strangely enough, businesses seeking to protect their IP do not have to rely on patents nor copyright, as there are other well-established ways in which protection can be ensured. Leaving on one side trademarks (registered or not), two key approaches are to use trade secrets and confidentiality agreements. These are very effective. If you have signed to respect a trade secret, or a non-disclosure agreement to cover commercial-in-confidence information, telling a third party is a clear-cut case of default. Such clarity is hard to obtain in claims over copyright and patents, where company lawyers can keep a dispute running for years. Many companies prefer sharing, but only with those bound to keep things secret.
Should we abandon most existing IP law? Critics of intellectual property point at evidence intellectual monopolies are harming health (as in the case pharmaceutical patents), preventing progress, and argue that the public interest is harmed by ever-expansive monopolies with copyright extensions, and software or business method patents. They argue for policies to encourage the diffusion of ideas, including modifying patent laws to encourage competition and to encourage innovation. [viii] Others simply argue the current system is fundamentally unjust. [ix]
I can every reason to return to the original basis for patents, overthrowing recent decisions. But there’s a problem: it’s a Supreme Court seemingly beholden to corporate greed and Republican lawmakers. Darn. Even so, surely genetic material should not be patentable, however tweaked?
What about copyright? Here, the possibility of change is real, restoring reasonable ‘economic incentives’ without building long lasting walls over 100 years or more. That makes no sense. Many support the Open Access movement, and Creative Commons, a nonprofit “dedicated to building a globally-accessible public commons of knowledge and culture … [which makes] it easier for people to share their creative and academic work”, including free use of work funded by government. [x] I, like millions of others, use Creative Commons licenses, offering reasonable but limited protection for what I write: even best-seller writers can use the approach, as most of their rewards come within 2-3 years of publication. If the choice is to share or not to share, it shouldn’t be an issue. Quite obviously we should share and ensure we all benefit and learn!
[i] https://www.wipo.int/about-ip/en/
[ii] My emphasis. See https://en.wikipedia.org/wiki/Intellectual_property. Trademarks can be retained in perpetuity.
[iii] Ibid. Sorry about all the quoting, but I can’t improve on these comments.
[iv] As in much else in this blog, I am avoiding complicating detail: for example, there are exceptions to this rule for employees under common law rules in some jurisdictions, and employees in some countries have statutory rights
[v] Actually, cDNA is created naturally, by viruses. Guo J (2013) The Supreme Court revealed its ignorance of genetics. See http://www.newrepublic.com/article113476/supreme-court-genetics-ruling-reveals-judges-ignorance
[vi] S D Bergel, Patentability of human genes: the conceptual differences between the industrialised and Latin American countries, Journal of Community Genetics, 2015 Jul; 6(3): 321–327
[vii] J H Escovedo, Disney’s Influence on Unites Sates Copyright Law, 17 February 2016, The IP Law Blog
[viii] See the extensive discussion of these issues at https://en.wikipedia.org/wiki/Intellectual_property
[ix] See Intellectual Property and Theories of Justice, ed. Gosseries, Marciano and Strowel, Palgrave McMillan 2008
[x] https://en.wikipedia.org/wiki/Open_access; and https://creativecommons.org/about/
