Patents and copyrights have been in use throughout history since the medieval times. However, rarely has there ever been a subject more contended than that of patenting. For example, in the US, patenting was most revered especially in the nineteenth century.This is best described by Mark Twain when he proclaimed
``a country without a patent office and good patent laws was just a crab and could not travel anyway but sideways or backwards''
However, the view towards patents has shifted greatly in the US, and that resonated in other industrial countries.
In the mid-twentieth century, laws have changed substantially. This prompted views such as
``the only patent that is valid is one which this (the Supreme) Court has not yet been able to get its hands on."[1] to be expressed regularly.
Throughout this paper, I will try to present for the views usually presented by patent and copyright advocates and open source advocates alike.
This is a rather legal definition, therefore, it might be in order to quote is as follows:
"A patent for an invention is the grant of a property right to the inventor, issued by the Patent and Trademark Office. The term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. US patent grants are effective only within the US, US territories, and US possessions.
The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention."
That, to me in plain language means that the patent allows any inventor to protect his/her invention from being used by others.
What is a Copyright?A copyright is a concept quite close to that of a patent. The main difference between the two is that copyrights protect more general creative output such as novels, new software, paintings, photographs.
Case for PatentsIt is quite easy to list reasons defending patents. For one thing, it is only fair that the inventor who put so much effort into producing his/her final product should be protected from others who might usurp the idea and make profits based on his ideas. It seems quite logical that inventors should reap the benefits of their work. Some of the advantages cited for the use of patents are:
1. Incentive to invest more in Research and Development. Knowing that they will have exclusive ownership of the produced inventions, entrepreneurs will invest more in creating new products.
2. As for the society, the invention moves into the public domain after a period of time as stated earlier in the definition
3. The inventions are divulged, not held as corporate secrets. This allows others to make improvements on them.
[3]
Some of the basic exclusive rights for copyright holders are listed:
1. Reproduce the work in copies or sound recordings.
2. Make derivative works based upon the original.
3. Distribute copies or sound recordings of the original to the public by sales, rentals, leasing, lending or licensing.
4. Perform the original publicly; and that would include the use of digital audio.
5. Display the original publicly.
[4]
As with patents, the copyright protected work eventually becomes publicly owned. The copyright puts in check uncontrolled dissemination of the protected work.[3]
Case Against Patents and CopyrightsThe rationale provided by many disgruntled people globally against the patents system is that this system is a direct infringement of the free market system.[5] Before trying to examine this rationale further, it might be proper to define free market first.
The Free Market System
The free market system is an economic system in which there is ideally fair competition between corporations (businesses). Although there are many variations of the free market economy adopted in all the major countries, the main cornerstone of the system is that it tries to create more wealth for the most part of the population. Many argue that using patents, large corporations can choke other smaller businesses by creating cartels. These mega-corporations have mutual agreements. In other words, patent systems help create monopolies. Monopolies kill the essence of market economy, namely competition. By no means is this a new idea. Adam Smith, one of the greatest Economists ever has discussed this same topic at length in his monumental book ''The Wealth of Nations``. Adam Smith says
''A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate.``
[6] Adams also proclaims that
''The price of monopoly is upon every occasion the highest which can be got. The natural price, or the price of free competition, on the contrary, is the lowest which can be taken, not upon every occasion, indeed, but for any considerable amount of time together.``
[6]
Finally, in order to show that the nature of ''cartels`` has not changed since the late 1700's, it is worth a great deal to take into account Smith's views when it comes to ''exclusive privileges of corporations`` as patents were called at that time:
''The exclusive privileges of of corporations, statutes of apprenticeship, and all those laws which restrain, in particular employments, the competition to a smaller number than might otherwise go into them, have the same tendency, though to a less degree. They are a sort of enlarged monopolies, and may frequently, for ages together, and in whole classes of employments, keep up the market price of particular commodities above the natural price, and maintain both wages of labour and profits of the stock employed about them somewhat above their natural rate``.[6]
Note that as was stated earlier, patents made sure that although they provided incentive for research and development, they also built checks so that patents can eventually be used by the public. However, the manner in which patents are being used nowadays has undermined that same goal.[5]
An Ethical ArgumentPatents and copyrights contradict one of the most fundamental human rights, namely the freedom of expression. Suppose a writer, call him/her X, composed a beautiful poem. Say then that an avid reader, Y, reads and memorizes the poem. Whilst not contending the right of the writer over the copy on paper or in media, should the X's copy rights extend to the copy of the poem that exists within the memory of the person. That does not make much sense.
Moreover, knowledge was a free commodity throughout a large part of history. There were no copyrights protecting the works of great writers who produced great works such as Plato, Cicero and many other epic writers. However, they are all revered even today, thousands of years after they ceased to exist. Why then, if it was not for the purpose of profit maximisation, should we continue imprisoning knowledge like the genie in the bottle?
Is Unethical Always Illegal?This is indeed a very difficult question to answer. However, I will venture and say,no. Ethics are not always on the side of legislation. Legislators in many cases represent special interest groups who have their own agendas. Otherwise, they might simply not account for all the possible situations. Therefore, at least in my view, an illegal action is not always unethical. One example of such is the infringement on HIV medication patents by some African countries such as South Africa and Uganda. [7]
Open Source Paradigm
The Advent of Computers, Networks, Software and Programmers
Oh Computers, What Tidings do You Bring?!I think it is a euphemism to say that computers changed the face of the earth. Computers have, for all intents and purposes ushered in the age of the most important revolution since the industrial revolution, namely the communication revolution.
The most important contribution made by computer, however, is the advent of software. It was very difficult to control software. It is quite difficult to monitor what is done with a handful of text lines moving seamlessly all around computers. The problem here is not the finished product, rather, it is the programme source code. This is not the end-product you see on your computer screen, rather, it is the laborious work of the programmer.This is the essence of the open source movement.
Types of Software LicensesFirst, it is important to note that the open source community does not try to reduce the gratitude shown or the monetary rewards to those who are innovative. Rather, this new paradigm allows others to use, benefit and make advances on it.
Proprietary Software
This is software protected by a patent or copyright. This paradigm emerged during the 1970' and the 1980's. It is still the dominating paradigm to this day. [8] One of the most important examples about this is Microsoft Windows. Users of this type of software have to pay for it and are not allowed to see the source code.
Shareware This sort of software is very much like proprietary software. The sole difference is that the user is allowed to use the software for free only for a certain length of time, after which the user should buy The programmer provides incentives for the user to buy. e.g. providing user manual, allowing printing etc. the product if he/she feels that the product suits his/her needs. [8]
Freeware or Open Source SoftwareThis is software that is designed to be totally free. When we are talking of free software,we are not necessarily alluding to the monetary value of the software. The term free in this context means that every programmer is at liberty to change the programme as he/she sees fit. However, there are some Open Source Operating Systems which are actually free e.g. Linux. The idea of the open source programmes is that collaborative programming should be capable to advance societies in a manner much better than closed source programs do.[8]
For one thing, the user cannot change the closed source programme as he/she sees fit. Therefore, he is held hostage by the suppliers of the product since they have the source programme. Basically, the users have to ask for the changes, wait for them to come, and pay for them. In many ways, the changes are not what the user was originally looking for. Moreover, there are too many users worldwide, the closed source programmer cannot possibly take in all their input.
The downturn usually pointed out when referring to Open Source Software is reliability.[8] It is usually said that the Open Source Software is less reliable than proprietary. However, since many people revise the Open Source source code, more mistakes should be eliminated. I am writing this paper using a free Open Source distribution of Linux, namely Ubuntu and I believe that this system is as stable, if not better than other proprietary Operating systems I have used before.
Is it a Charity?Most definitely not. Open source software is not a charity. Although the software might be provided for free, strings are still attached. First of all, technical support is only provided for a price.[9] That is why a company would may for a program it can have for free. Moreover, if a proprietary software company wants to incorporate some parts of an OSS in the product, they would have, again to pay for the respective owners of the OSS package. [9]
"Ask Not For Whom the Bell Tolls, it Tolls for Thee"
I recently ordered some Linux products to be delivered to me by mail. This service is provided for free. Now, before the reader goes on to think that those people must be angels, not businessmen, well think again. This is merely a promotional effort by the company. Think about it. Most people who would ask for the free OS are young programmers or otherwise technical and scientific students who are most probably going to assume positions in futuristic IT companies worldwide. This is a great method to target a closed market. Using this method, such nascent companies can breach the cartel-built bulwarks and the Open Source fever seeps into the IT market slowly, silently, yet very effectively.
In order to understand the efficiency of this process, one should take a look at the European IT and ICT -related economic sectors. These sectors have recently been taken over by the seurge of Open Source software. This movement is not only profitable because of the collaborative programming paradigm, it also provides a new alternative away from the control of proprietary giants. Microsoft, veritably, the vanguard of the proprietary software world (for lack of a better term) is quickly losing ground to many OSS products.[10]
Patents and Commercialisation in Medicine
Ethics in MedicineThroughout this paper, I have tried to show the manner in which copyrights(and their less-celebrated cousins patents) in my view have incarcerated innovation, ironically the very thing they were devised to protect in the first place. Patents have not only slowed down advancement in software and computers. They have arguably had more drastic effects in other sectors of society worldwide. As mentioned earlier, patents have stopped urgent medical provisions to reach people who are in dire need to them in time. In stark contrast to software development where the negative effect mostly stops at the point where users might have some computer crashes, medical patents have in some cases caused death.In the words of Cicero, one of the most revered Roman philosophers,''In nothing do men more nearly approach the gods than in giving health to men.`` Therefore, I should think it incumbent upon all doctors and those working in the health-care industry to put human life first. The mere fact that there is a ''health-care industry`` is in its own right inhumane to say the least. One has to look for his/her personal benefit, there is no doubt about that. However, I should think there is nothing more befitting to counter this argument than to quote President Kennedy ''The supreme reality of our time is our indivisibility as children of God and the common vulnerability of this planet.``
Health Care CommercializationCommercialization of health care can have dire consequences as we all know that humans have two types of needs, public and social. This in turn provides us with two products: Public products and social products [11]. While social products are those products which we as humans want, and which would make life easier and more tolerable to live, the more important products are known as public products. These are the products required by a population in order to survive and continue to operate as a productive society. These can be broken down into main services such as health care, education, shelter and of course food. These services should be as far away from commercialization as possible. This is especially true when it comes to health care. Commercializing a new remedy would, doubt, produce a lot of fortune for a limited sector of the society, however, it can also take advantage of the needs of the layman.
New medical discoveries and technologies should be protected against such commercialization. One very good example of success in this blood transfusion. Prohibition of transfusion commercialization has provided us with arguably efficient system which most people can benefit from. It may serve as a model for future medical systems in other areas such as making use of stem cells.
The Chink in the Armor, Pharmaceutical CompaniesThere are drastically different health care systems all over the world. However, the most prevalent property in all health care systems is that the Pharmaceuticals industry is always privatized. Private companies understandably work to produce as much profit as possible. One of the most important methods of gaining large profits is for companies to have patents. A small (rather insignificant) change in the molecular bonding of a specific medication can provide the company with huge profits when registering a patent. However, this change does not in any way profit the main consumers of the medication, namely patients. Therefore, I think it is quite important to pass legislation imposing regulations so as to make sure that the common good of the layman is also being looked after in such companies.
Another problem arising from such a deregulated industry is that the prices of medications is different in different countries. This problem is particularly life threatening in many AIDS-stricken countries in the African continent who have to buy the drugs at prices set by the producers in western countries and which in many cases the patient cannot afford.
Education and CopyrightsHistory of Education
Education and knowledge have always been free to move between borders. The European renaissance depended to a great extent on Arab translations of Greek and other works in Science, Philosophy and other branches of knowledge. Had the knowledge in the Arab region and those in other civilisations been closed to others, it would considerably have hampered the advancement of science worldwide.
With the advent of the communication age, information proliferation has become easier using the Internet. If you are looking for any piece of information, everything one need do is to log on line and look for it on a search engine such as Google or search through encyclopedias on line such as Wikipedia.
Open Source Courseware Initiative
MIT OpenCourseWare is a free publication of most of the works and course materials in MIT. MITOCW is open, free and available to the world. Note that such a service as shown above can be a great help to students living in less developed countries who do not have as many resources as students in industrialized countries. It might be in order to stress here that any books which are right protected cannot be used for the benefit of this project without the consent of the author(s) of the work in question. [12] It is very important to note that such projects provide a framework in which data can be shared amongst scholars all over the globe. That is the reason why many other universities and educational institutes have also started to provide open coursewares of their own following the MIT lead. Such initiatives might disseminate information in a manner which will help other less developed countries to join the club of industrial states. Nowadays, there are more than 200 higher education institutes collaborating in the project.[13] This is a great example as to how information can be disseminated in a rather universal and cheap manner while still conforming to copy right laws.
Final ThoughtsThe subjects discussed throughout this paper are, many might say, quite contentious. By no means do I claim to have all the answers. Moreover, I do not want the contents of this paper to be understood as a diatribe against those who benefit from maintaining status quo. I am merely trying to make sense of issues being discussed on a daily basis and most probably having an effect on us all. There is always a way to make things better. The world was not created cold, nor was it created philanthropic. Throughout our ephemeral existence, each of us should strive to create a better legacy.This should be our journey,
In the words of Tennesson:
''One equal temper of heroic hearts,
Made weak by time and fate, but strong in will
To strive, to seek, to find, and not to yield.``
It might be in order to mention that these lines were meant to commemorate the explorer Robert Scott who died on his journey back from the exploratory mission to the South Pole. However, believe that this trip is synonymous to our human life journey.
References[1] Dissent by Jackson J. in Jungerson v. Ostby and Barton Co. 335 US 560, 80 USPQ 32 (1948).
[2] United States Patents and Trademark Office, http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm
[3] Berkley/California Universit /Electrical Engineetring Dept. inst.eecs.berkeley.edu/~eecsba1/sp98/Slides/Intellectual_property.PDF
[4] http://inventors.about.com/od/copyrights101basicsfaq/f/copyrights.htm
[5] http://www.osnews.com/story/10354/The_argument_against_software_patents/page1/
[6] Adam Smith, The Wealth of Nations, Every Man's Library, 1991, 79 Berwick Street, London W1V3PF
[7] BBC World, Uganda opens first HIV drug plant, $http://news.bbc.co.uk/2/hi/africa/7033162.stm
[8] http://www.techtransfer.harvard.edu/inventions/ip/software/freeshare/
[9] http://xavisys.com/2008/05/how-to-profit-with-the-open-source-community/
[10] Economic impact of open source software on innovation and the competitiveness of the Information and Communication Technologies (ICT) sector in the EU
[11] Textbook of Healthcare Ethics by Dr.Eric H.Loewy,Dr.Roberta Springer Loewy
[12] http://ocw.mit.edu/OcwWeb/web/about/about/index.html
[13] http://www.ocwconsortium.org/about-us/about-us.html