19. Intellectual Property

- 19.1. What is "intellectual property"?
- 19.2. Forms of intellectual property protection
- 19.3. Intellectual property protection and the Information Society
- 19.4. Intellectual property protection in developing countries
- 19.5. Indigenous knowledge

19.1. What is "intellectual property"?¹

Intellectual property (IP) is an intangible thing – such as an idea or innovation – that, in most parts of the world, you can own, similar to the way that you can own tangible things like a car or a plot of land. The intangible thing can be something that you have written, drawn, designed, invented, or spoken, and it can be something that you have created yourself or paid someone to create for you. Like tangible property, you can buy, sell, exchange or give away intellectual property, and you can control its use by others. However, in order for your intangible thing to qualify as intellectual property so you can gain these rights, you have to be able to distinguish it from similar things. There are many different perspectives on intellectual property and many people feel that current intellectual property regimes need to change. Some feel that these regimes need to be tightened, to apply stricter rules to the ownership and control of ideas, while others feel that there should be fundamental transformation of IP regimes to ensure equitable public access and stimulate innovation. Some even argue that IP should be eliminated in its entirety.

Inventions of the mind – ideas – are very special. All cultures and societies are built upon numerous layers of accumulated past knowledge and ideas. In the arts, medicine, education, agriculture, and industry – in almost all areas of human endeavour – knowledge and ideas lie at the base of human life and its passions.

Intellectual property rights (IPRs) emerged in the industrialised world as a means to mediate and control the circulation of knowledge, and as a means of balancing the conflicting rights of different groups involved in the generation and use of ideas of economic value. IPRs are premised on concerns that the creators or authors of ideas should have a material right to a fair return for their effort and a moral right not to have their ideas misrepresented.

However, ideas are not simply the product of individuals and corporations. For the most part they incorporate and build upon the traditions, collective wisdom, and understanding of social groups and societies. Sometimes they build upon natural creations and processes that have taken millions of years to evolve. Consequently, society in general has a social right to use ideas for the benefit of the public good – especially if they are key to social and physical well being.

IPRs attempt to balance these rights: the moral, the economic and the social.

The justification of intellectual property is that it will protect innovations and allow people to make money by sell-ing their ideas. Usually the expression ‘intellectual property’ is used as a legal term to indicate four distinct types of protection given to intangible property:

• Patents

• Trademarks

• Copyright, and

• Trade secrets.

The rules for IP protection, such as the scope of protection and the requirements for obtaining protection, are set out and enforced in laws and regulations of national governments. While the details of national IP laws can vary, the basic principles are generally the same. In general, the IP owner is responsible for proving a violation in order to enforce IP rights.

History

Key events in the development of notions of intellectual property were the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention (1886), where the foundations of international IP law were laid. Here the concepts of international respect for copyright, automatic copyright without any need to register, and the limit of 50 years after the death of the author were introduced. The Berne Convention revision (1928) added the concept of moral rights, such as the right to have work acknowledged and not be disparaged. Again in Berne, in 1996, digital media were included in the existing rights framework. In the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement, part of the GATT agreements of 1994, intellectual property was extended from individual works to intellectual creation, making software copyrightable. Current IP regimes emerged mainly in Europe and have increasingly been adopted in the rest of the world.

International institutions that play a role

There are a number of international treaties and agreements that aim to harmonise national IP laws across countries. Most of the key treaties are incorporated under the umbrella of the World Trade Organisation (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which sets out the standards for IP protection among WTO member countries. Members can use WTO mechanisms to enforce the IP protection offered by these treaties. The World Intellectual Property Organisation (WIPO) otherwise administers these treaties and drives the enforcement of intellectual property law worldwide. It also administers other international agreements on IP, including the WIPO Copyright Treaty and the WIPO Performances and Phonograph Treaty, which require signatory nations to punish people who circumvent technologies intended to protect copyrighted works. The laws that regulate patents are national laws, but the agreements such as TRIPS make sure that these laws are extended internationally.

In practice, what is established as the norm in the USA, and increasingly in the European Union, is often copied in other countries. For instance, in Korea, “the Korean Intellectual Property Office put Business Method Patents into the patent system by simply importing the US Patent Examination Guideline despite ... different legal principles.”² As with so many other things, IP developments in economically dominant countries tend to determine world trends.

19.2. Forms of intellectual property protection

A patent is an intellectual property protection that applies to inventions or designs for inventions, which gives the inventor exclusive rights to make, use, and sell the invention for a certain period of time. Usually an invention can include a product or a process to make a product. In general, the invention must be novel, useful, and non-ob-vious in order to qualify for IP protection. Patents commonly cover things like devices, chemical compositions, and processes for creating devices and chemicals. Some countries offer patents for ornamental industrial designs, and new varieties of plants. As part of the application for a patent, the inventor must disclose the details of the invention or design to the public. After the period of exclusive rights has expired, anyone can use the invention or design in any way they wish. The idea behind patents is that the period for exclusive rights will encourage innovation because inventors (or those who fund inventions) will have a chance to recover their costs for research and design. Limiting this period is intended to encourage the commercialisation of the idea. At the same time, patents are intended to serve the public good by encouraging researchers to share information and limit duplication of effort. The TRIPS treaty obliges WTO member countries to protect the exclusive rights of patent holders for 20 years from the date when the application to register the patent was made. Signatory countries must adopt legislation that gives full product patent protection by 1 January 2005.

Trademarks

A trademark is an identifying feature that denotes a particular group of goods or services. It is usually some kind of distinctive sign – like a word, logo, colour combination, or musical tones – that is intended to differentiate a company’s products or services from those of its competitors. It is intended that clients and consumers will associate the trademark with the goods or services of the company. Trademarks are protected as intellectual property in order to allow companies to build a reputation for their goods and services that can be associated with the identifying feature. You are not allowed to use a trademark for your goods and services that is the same as or similar to a protected trademark if it is likely to cause confusion among clients and consumers. For example, confusion is likely to be caused by a similar trademark that is used to identify similar goods and services, or to identify different products or services sold in the same market. When choosing a trademark, you have a responsibility to avoid infringement of other trademarks, and may be required to conduct a search to make sure that no one else is using the trademark. In order to protect your trademark, registration with the national authority is sometimes, but not always, required. Some countries grant protection to the first person to use the trademark in the course of business, but other countries grant rights to the first person to register the trademark. Even when not required, it is recommended that you register your trademark to ensure that you can stop others from using it. For example, if your trademark is registered, then other people will be certain to find it when they conduct a search. But once you register the trademark you have to use it within a given period of time or it could be considered abandoned. If the trademark is ‘well known’ it does not always have to be registered. For example, WTO member countries have to give protection to well-known trademarks (such as the McDonalds golden arches). Trademark protection is indefinite, as long as the requirements are met.

A recent source of controversy is the relation between trademarks and Internet domain names. In some countries, domain names can be registered only if the registering entity has a proven claim to that name, such as a registered trademark, or their name and the domain coinciding. In others, registration of obvious names of companies or institutions is forbidden except to that organisation. But in many countries, there is no restriction, and anyone can register a domain name that is the same as a company’s or a person’s name or product.

This has led to a number of cases where domain names have been challenged. These challenges have often been successful, especially when the domain has been registered with the obvious aim of selling it, sometimes after using it as a link to a pornographic or gambling site as a means of applying pressure on potential buyers. Rules for registering domain names vary from country to country, and some are stricter than others. In the USA, for domains such as .com, now used internationally, a dispute resolution mechanism has been instituted to deal with problems of domain ‘squatting’.

Another contentious issue is the use of trademarks or official logos in web pages without the consent of the owner of the trademark. Whilst the inclusion of trademarks within text is generally allowed, this is normally within the limits of fair dealing. A site that misleads the public by using trademarks or logos, will have less chance of protection from the law than one which is clearly a parody. In the latter case, issues of free speech come into play and the matter is not clear-cut. It is all very well for a trademark owner to have the right to challenge its use by a rival company (for example the producer of a Coca Colalike beverage who makes use of the Coca Cola logo). However, when, for example, a trade union uses the logo of a company where workers are on strike to publicise the labour dispute, limiting the use of the trademark can constitute a limitation of freedom of expression.

Copyright is an intellectual property protection granted to literary, musical and artistic works, including drawings, poems, films, written publications, and software. It applies to original, creative works fixed in a tangible medium that is permanent or stable. It gives the creator the exclusive right to copy, publish, perform, or broadcast the work, but it does not prevent the independent creation of similar works by others. It also does not prevent the ‘fair use’ of the work, such as for news reporting, teaching, or research.
Copyright exists automatically once the work has been created, and does not require registration. It usually lasts for the life of the creator plus 50 years. In most cases, if the creation is made in a work setting, the employer holds the copyright for the work. Under the TRIPS treaty, corporate entities can have the copyright for 50 years from the year of publication, but under certain conditions the copyright can last much longer. For example, in the United States such a work can have a copyright for 120 years from the time of creation or 95 years from first publication, whichever is shorter. Even though copyright registration is usually not required in order to gain copyright protection, it is available in most countries; in some countries registration is considered proof of the copyright ownership. The copyright owner must include a copyright notice on the work. On a recording the copyright notice should include a symbol - ã - with the year of first publication and the name of the copyright owner. For other works the copyright notice should include a symbol or the word “Copyright”, the year of first publication, and the name of the copyright owner. For example, “Copyright 2003 APC”.
On the internet, copyright is more complicated. While the material is not in printed form, normally the form covered by copyright, a text on a computer screen can be printed and reproduced in hard copy. Also, internet tools such as email and the World Wide Web makes copies of material as part of the way they function. When you click on a link on a web page, your browser sends a message to the server where the document is stored, requesting a copy of a file which it converts into the visually accessible page you see on your screen. On the way to its destination, the file, perhaps containing copyrighted text, is copied and stored on several other computers. It would be reasonable to ask an author who puts his/her work on a web page whilst prohibiting its being copied: “Why do so if you know that to read the file it must be copied?” In practice, copying copyrighted material on the internet is accepted, provided it is only for the purpose of reading.

In the United States, the Sonny Bono Copyright Term Extension Act of 1998 retroactively extended the duration of copyright from the life of the author plus 50 years to the life of the author plus 70 years, in the case of individual works, and from 75 years to 95 years in the case of works of corporate authorship and works first published before 1st January 1978. Under the Berne Convention states are required to provide copyright protection for a term of the life of the author plus 50 years. However, the convention permitted parties to provide for a longer term of protection, and between 1993 and 1996, the European Union provided protection for a term of the author’s life plus 70 years. The United States, however, only provided for the minimum required by the convention. As a result, many literary works, movies and fictional characters, which were quite profitable for the copyright owners, were threatened with passing into the public domain. This included several characters owned by the Walt Disney Company; without the act, Mickey Mouse would have entered the public domain between 2000 and 2004 when early short films such as Steamboat Willie and Plane Crazy were due to reach the end of the 75-year copyright term. As a consequence of the act, no copyrighted works will enter into public domain due to term expiration in the United States until 1st January 2019, when all works created in 1923 will enter into public domain. Source: http://www.wikipedia.org/wiki/ Sonny_Bono_Copyright_Term_Extension_Act

Copying music is more controversial. Modern digital technology allows easy copying of compact discs and sending of music in various formats, such as mp3, via the internet. Peer to peer (p2p) software has been developed to allow the sharing of these and other files without the intervention of a central database or a web page, that is directly between two people who are connected to the internet. The multinationals which dominate the music industry today have taken several companies, such as Napster and Kazaa, to court to try to preventhis, but the decentralised nature of modern p2p programmes makes this extremely difficult, if not impossible, to enforce, unlike the direct selling of pirated CDs in the street. Another example is the attempted prosecution of those who made available software (DeCSS), which permits DVD disks to be copied on a computer.³

Trade Secrets

A trade secret is confidential business information that gives its owner a competitive advantage, such as techniques, processes, recipes, or methods. Trade secrets are protected as intellectual property where they are valuable to the owner and steps are taken to keep the information confidential. They are not protected if someone else independently obtains the information.⁴

The TRIPS Armoury

A key means by which IPR has been reinforced and extended is through TRIPS and the Copyright Treaty (1996) that was negotiated by the World Intellectual Property Organisation (WIPO). These agreements have been used as a means to tie trade with IP, as templates for national legislation on IPR and for ensuring the harmonisation of global agreements such as TRIPS with local IP legislation. These global agreements have been backed by trade associations, such as the Motion Picture Association of America (MPAA), groups like the US-based International Intellectual Property Alliance (IIPA) and corporations such as AOL-Time Warner, Microsoft and IBM. These groups are all concerned with issues such as the impact of piracy on profits, and are keen to extend the life of copyrights and patents, thus profiting from royalties and licensing agreements by creating more or less permanent enclosures over cultural property.

The TRIPS agreements cover patents, industrial design, trademarks, geographic indicators and appellations of origins, layout design of integrated circuits, undisclosed information on trade secrets, and copyrights (literary, artistic, musical, photographic, and audiovisual).

TRIPS favours industrialised countries and trans-national copyright industries, while limiting the freedom of countries, especially less-industrialised ones, to design IPR regimes to meet their economic, social, and cultural needs. Especially onerous are TRIPS provisions on the patenting of life forms and pharmaceuticals and the appropriation and commodification of indigenous knowledge by international corporations.

19.3. Intellectual property protection and the Information Society

Intellectual property protection is intended to reward innovation, and to allow people to make money from their ideas. The rules that govern intellectual property are set out in the laws and regulations of national governments, and enforced at the national level. However, the emergence of the global information society has made intellectual property an international issue. Modern information and communications technology (ICT) makes it easy and cheap to copy, modify, and disseminate ideas and information in a wide variety of forms, including audio, video and text. And the global nature of information networks makes worldwide distribution possible in a matter of seconds. In particular, computer technology has made the copyright concept of “tangible medium” less obvious, in that information is so easily heard, viewed, or exchanged without ever taking a physical form. Technological developments have raised copyright enforcement issues as well, largely because it is more difficult to prosecute offenders now due to the speed of technology changes, the volume of infringement, the difficulty in tracking offences across international borders and the decentralised nature of peer to peer networks that copy material.

The worldwide trend is toward harmonization of IP laws and a focus on enforcement, but the views on intellectual property vary widely. Many people support the move toward stronger IP laws that are better enforced around the world, in order to protect the profits of people and companies and foster creativity. They argue that the creator has a moral right to control his own work, and that creators must be compensated for their work, both be-cause that is the ethically right thing to do and because it will help foster a creative society that will bring broad benefits to more people. Others argue that the very nature of information is linked with the concept of sharing and wide use, and that the realities of today’s information society demand an entirely new philosophy about intellectual property. They claim that the gains for society when information is shared outweigh the interests of IP owners. They also argue that copyright laws are defective, pointing out that mainstream publishers and music companies make far more profit than creators. Many also question the concept of “originality”, suggesting that few ideas are so original that they warrant protection as intellectual property. Also, new thinking on the social value of shared information makes it difficult to impose criminal penalties for copyright infringement where there is no “intent to profit”.

‘Open’ knowledge sharing

New ideas about intellectual property have emerged in recent years that appreciate the importance of creators’ rights while at the same time recognising the value to be gained from sharing knowledge and information. The concept of ‘open’ knowledge aims to create an environment where people share information in order to build on one another’s work, but creators get certain rights because of their original contribution.

Free and open source software

Most software that you buy online or in a store is distributed by proprietary software companies that have a copyright giving them the exclusive rights to publish, copy, modify, and distribute the software. They make most of their money by selling an “end user license” to people who use the software programme on their computers. The end user license agreement limits the way you can use the software – for example, only allowing non-com-mercial uses – and it often restricts you from sharing the software programme with anyone else. You usually agree to these terms either by opening the software packaging (a ‘shrink wrap’ license), or by clicking “I agree” in a license window that appears when you install the software on your computer (a ‘click’ license).

Proprietary software companies do not allow the modification of the underlying programming code for the software, the ‘source code’. The programming code in which the software is written must be compiled or converted to a form, which will run efficiently on the computer, before it is distributed to the user. In this process the original code becomes inaccessible. If you had access to the source code you could copy, recreate or modify how the software works, and that would allow you to make a similar application very easily (assuming you are a software programmer, or can pay or persuade one to do the work for you!). Access to the source code would also allow you to make unlimited copies of the software programme (for example, by enabling you to circumvent the built-in copy prevention mechanism). So proprietary software companies keep the source code secret, and they build security mechanisms into the software that prevent you from circumventing the end user agreement. Usually, no one ever has access to see how the source code works. When other people want to make compatible software programmes that will work with the proprietary software, the copyright owner will tell them only what they need to know about how the programme works.

Digital Millennium Copyright Act of 1998 (DMCA) Under the DMCA, a corporation may do many things not traditionally protected in the U.S., such as legally destroy materials a person has bought from them, deny a person's right to sell their used copy of a published work, deny a critic or academic access to the material, or, as has happened in this case, silence and imprison people who point out exploitable flaws in their software. Not only is this not traditional copyright law, but it is unconstitutional and harmful to the nation, allowing a programmer or company to effectively decide what is illegal or not, allowing industry associations to circumvent the First Amendment rights of individuals, and making security experts afraid to report on their findings. The DMCA is a law written by a corporation-friendly Congress (H.R. 2281 - 105th Congress) for the benefit of massive corporations with the approval of their lobbying groups like the Recording Industry Association of America (RIAA), the Motion Picture Association of America (MPAA), and the Association of American Publishers (AAP), all of whom support the arrest of Dmitry Sklyarov. The stated intention of the law is to protect the artists' copyright under international treaty. The result has proved something very different. Some examples: Used booksellers and libraries are under direct threat by these measures, and, as reported in the Washington Post (February 7, 2001; Page C1), the AAP is actively trying to close them out of the electronic book business entirely. Professor Felten of Princeton University cannot discuss his paper on a proposed CD standard for fear of retaliation by the RIAA. Links on the web to code written by a Norwegian minor by the name of Jon Johanssen to allow DVDs to be played on unsupported computers were declared illegal. Dmitry Sklyarov, who helped to create software that allows the legitimate owner of Adobe Systems Inc.'s brand of "electronic book" (e-book) files to convert them into generic files, was arrested under the provisions of the DMCA on July 16 , 2001, in Las Vegas, Nevada, where he was speaking to a computer security conference on the techniques Adobe uses in their e-books. His company won its court case. Source: Campaign for Digital Rights http://ukcdr.org/issues/sklyarov/

Ruben Blades puts his music on the Intenet for free The singer and actor Ruben Blades has put all his latest songs on the web. Anybody can download them for free, and give a donation if they wish. Said Blades: “ Send us afterwards what you think is fair for the work done. This experiment will determine whether in the future we can get rid of the middleman and offer our works more cheaply, making sure the profits go directly to the artist.” Source: Ciberpais, 31st July 2003, p. 6

Perhaps the best-known examples of the new thinking about intellectual property are open source and free software. Open source software is software that is made publicly available with the source code open for other programmers to look at. When programmers can read, modify, and redistribute the source code for a piece of software, the software evolves as people improve it, adapt it, and fix bugs. The creator of an open source software application holds the copyright for his work, but distributes the software under a license that grants a number of substantial rights to the user.

Free software has specific social objectives, and uses a form of a license based on four freedoms:
• The freedom to use the software freely. The user has the right to install and use the software on any and as many computers as he likes and use it for professional or private purposes or both.
• The freedom to modify the software to suit the user’s needs. The user has the right to change how the software works, can extend its functionality, fix bugs or combine it with other software applications to fit specific needs.
• The freedom to have access to the source code to exercise the right to modify the software.
• The freedom to redistribute the original or modified software, either at no cost or for a fee.

The term ‘free software’ is not used to indicate that the software costs nothing. In fact, free software is often sold, as in a ‘distribution’ of GNU/Linux such as Red Hat or SuSE. The ‘free’ in ‘free software’ refers to freedom, not to money. Open source does not only refer to the ability to access the original code, although this is the obvious interpretation, and one which some of the more commercial users of the term prefer. Free software is developed by a huge community of programmers, testers, translators, etc, all collaborating via the internet, largely without receiving payment. It thus poses a challenge not only to the proprietary software companies’ products, but also to their way of producing commodities, their business practices and their forms of organisation.

The debate around free versus proprietary software

Microsoft Windows and Office proprietary software comes pre-bundled with most new personal computers and has a market share of just over 90% of the world market. Microsoft’s Word, Excel and PowerPoint products have become synonymous with text documents, spreadsheets and presentations, and are standards for the electronic exchange of information. The ability to use basic Microsoft products is a valuable skill in almost every occupation and often is required by employers. Proponents of Microsoft Windows and Office proprietary software claim that businesses and individuals that cannot use Microsoft Office applications are clearly at a disadvantage in today’s computing environment, because of their widespread use. Training and user support for Microsoft applications is widely available around the world. In addition, the enormous user base makes it easy to find informal help from friends or co-workers. On the other hand, critics argue that Microsoft products are expensive, involve frequent upgrades, and require increasingly powerful equipment to run. Moreover, some complain that the software is too complex, unreliable, and insecure. Another argument is the criticism of the dominant position of Microsoft in the software market, which allows it to dictate to consumers, impose its own criteria and determine trends in software development and thus computer usage. Microsoft’ s monopolistic practices have been challenged in the courts in both the USA and the EU. A free alternative to Microsoft will break this monopoly and encourage diversity, improving standards and services.

Once confined to technically advanced users, free software applications such as the GNU/Linux operating system have entered the mainstream market and are today used in many sectors of industry and services on backend server computers as well as desktop workstations. Proponents argue that free software is an ideal solution for developing countries because it can run on low-end hardware, is easy to maintain and very secure, and unlike proprietary software, free software comes with the permission for anyone to use, copy, and distribute it, usually free of charge. So a country such as China can create its own versions of GNU/Linux, tailor-made to the special needs and conditions of that country. Having the source code means that any suspicions that spyware programmes have been inserted into the programme can be excluded by checking the code. The previous difficulties in installation and hardware recognition have been overcome, although some problems still exist with peripheral devices.

A major distinction of free software is the user’s ability to modify the software code. The free school of software development argues that this leads to better software products, which can be developed in less time. Proponents of proprietary software argue that the open source success is based on a non-sustainable business model, only possible because of indirect funding through universities and tax money. Both open source and proprietary software proponents claim that their software development model will foster a domestic software industry in the long-term. The impact of the freedom to modify the source code on users’ attitude towards technology has not been investigated enough to indicate if it will lead to more and better computer scientists or not. However, the growing free software movement, and the quality of many free software applications that already exist, indicate that it must be taken seriously as an alternative to proprietary software. Already, developing countries such as Brazil, China, and India, are adopting GNU/Linux as a major alternative to dependence on the Microsoft monopoly.⁵

Open content

While open source deals with software, open content brings the same approach to a range of other creative works, such as websites, music, film, photography, literature, and learning materials. In this case, the creator has a copyright on the work but allows its use by others un-der an open content license. There are several widely used licenses that differ somewhat with regard to the rights they grant a user and the protection for the creator, but they stem from the same ideas, and originally found their inspiration in the GPL software licenses (copyleft). Generally the users are allowed to copy, publish, and redistribute the work as long as the original author is given credit, and to modify the work as long as all modifications are clearly marked as such. The supporters of open content believe that free availability of content for others to use, modify and distribute will allow people to work collaboratively and build on each others’ work to contribute to a greater body of knowledge, while at the same time reducing duplication of effort.

The Public Library of Science (PLoS) is a non-profit organization of scientists and physicians committed to making the world's scientific and medical literature a freely available public resource. The internet and electronic publishing enable the creation of public libraries of science containing the full text and data of any published research article, available free of charge to anyone, anywhere in the world. Immediate unrestricted access to scientific ideas, methods, results, and conclusions will speed the progress of science and medicine, and will more directly bring the benefits of research to the public. To realize this potential, a new business model for scientific publishing is required that treats the costs of publication as the final integral step of the funding of a research project. To demonstrate that this publishing model will be successful for the publication of the very best research, PLoS will publish its own journals. PLoS Biology is accepting submissions now, and the first issue will appear in print and online in October 2003. PLoS Medicine will follow in 2004. PLoS is working with scientists, their societies, funding agencies, and other publishers to pursue our broader goal of ensuring an open-access home for every published article and to develop tools to make the literature useful to scientists and the public. Source: http://www.publiclibraryofscience.org/

Second, software patents are extremely broad, because they cover ideas, not concrete ways of doing or making things, so basically anything is patentable. For example, a traditional patent could be of a technique for making buttonholes. But a patented idea could be the concept of a buttonhole. If this seems ridiculous, the truth is sometimes stranger than fiction. Attempts to patent the wheel and all possible telephone numbers were surprisingly successful at first. But Amazon has the patent for oneclick purchasing, and prevented its competitor Barnes & Noble from using this idea. It is not a programme they have patented, not a complicated code sequence, but the idea of one-click purchasing.⁶Recently, the European Parliament approved a Patents Directive which had been amended to exclude software from patenting, in response to a campaign against this.⁷

19.4. Intellectual property protection in developing countries

Overall, intellectual property protection has not been a priority for developing countries until recently. Previously, colonial systems instituted IP regimes that primarily protected the interests of colonising nationals and businesses. IP laws were seen as a tool for foreigners to protect their profits. During subsequent post-colonial periods, there was very little enforcement of intellectual property rights, and counterfeiting, illegal copying, and pirating were common. In some countries, local industries were built around intellectual property violations, such as the infamous software pirating industries of Asia. Many argue that it is OK for developing countries to copy things like music, films and software that come from developed countries because it brings profits to the local economies where it is needed most. Others highlight the costs to local industries and artists that cannot gain IP protection for their work in the domestic market and cannot compete with low cost copies made by others. For example, the lack of intellectual property enforcement in Ghana is said to be responsible for the migration of many Ghanaian recording artists to Europe where their work can be protected.

Previously it has been the case that many developing countries did not have patent laws in place, and this created an environment where people could exploit inventions patented in other countries. Pharmaceuticals and agro-chemicals are two areas where this was a particular issue. The WTO, WIPO and others (notably developed countries where patent holders have a powerful voice) have been urging developing countries to update their patent laws. The US and European pharmaceutical industries argue that patent protection is needed so they can sell their drugs at a price that will allow them to recover the enormous costs involved in drug research and development. They say that developing country governments must enforce their intellectual property rights against locally manufactured generic versions of their drugs that would be sold for far less. IP proponents point out that national patent laws would also help foster domestic drug industries in developing countries, which would attract foreign investment and result in increased employment and exports. Developing countries hold the position that their immediate need for drugs to deal with the monumental healthcare crises they face is a greater priority than intellectual property enforcement for foreign pharmaceutical companies. Many are acquiescing to pressure from international organisations and complying with their obligations un-der international treaties, but the cases of South Africa, India and Brazil, which threatened to ignore the patents on HIV antiretroviral drugs and produce or import their own cheap substitutes for these drugs, has shown the hollow nature of the pharmaceutical companies’ arguments. Coupled with a huge campaign in conjunction with civil society to denounce the immorality of the high prices demanded by the companies for their products, which in practice meant the death of millions of people from AIDS and little or no sales in poor countries, these countries were able to pressure the pharmaceutical industry into accepting much lower prices. This significant victory for developing countries shows that international campaigns can have an effect on industrial sectors that seem omnipotent.

19.5. Indigenous knowledge

Indigenous knowledge is another concept that pushes the boundaries of traditional intellectual property regimes, based on the notion that communities share in the value of the knowledge that they hold as a group because there is no single creator or discoverer of the information. Indigenous knowledge is information and wisdom that is locally held and unique to a particular culture or community, usually within developing countries. The body of indigenous knowledge is often maintained through an oral tradition where knowledge is handed down through the generations via storytelling. Information is usually considered ‘indigenous’ where it is different from the kind of information commonly learned in conventional educational systems. Rather, indigenous knowledge is gleaned at the local level and emerges from the historical lessons of daily life in the local context. It is not considered to be the property of any one person or group, but rather of the entire community.

There is increasing recognition of the role that indigenous knowledge systems play in development. In particular, indigenous knowledge is being used in the creation of sustainable and environmentally sound approaches to agriculture and natural resource management. It is also being tapped to inform decision-making on food security, healthcare, education, and other areas. There is a growing interest in capturing indigenous knowledge in audio, film and written formats in order to help communities gain intellectual property protections for it. For example, knowledge of local plants that have medicinal value can be recorded and exploited economically for the benefit of the community. This is particularly important in the context of biotechnology and biopharmaceutical industries. And ICT is helping to make indigenous knowledge more accessible and easier to disseminate. For example, as existing indigenous knowledge resources becomes linked, it allows knowledge sharing among communities with similar circumstances in different parts of the world.

Some indigenous people see a need to make a permanent record of this knowledge for future generations, as they believe such generations will be less reliant on traditional ways. And also, it helps to demonstrate their rightful ownership of the land and their own knowledge, which in some cases has been threatened by private companies attempting to patent drugs known by indigenous peoples for many years, or by art dealers who exploit traditional indigenous, sometimes sacred, designs.