Intellectual property and the world today
The more I study intellectual property (IP), and the more I see its daily uses, the more inadequate I find the prevalent IP systems.
It’s frustrating, because I hope to work in this very field (I find it fascinating), and all I seem to see are the manners in which people have been slowly destroying the system by acting in a way that they believe helps the system.
Copyright
First, a little introduction on copyright and Digital Rights Management (and here, I’ll be basing my analysis on the system in English law – see the Copyright, Designs and Patents Act (CDPA) 1988).
Copyright is an exclusive right for a person to certain acts, with respect to a specific “work” (a product, …): copying the work, issuing copies to the public, renting/lending the work to the public, performing/showing/playing the work to the public, communicating the work to the public, making an adaptation of the work (these are the “restricted acts”).
The most well-known right among these is the right to copy the work, and copyright implies that if A has copyright in work 1, B cannot copy work 1.
This right has limitations, the biggest one being that if A gives a licence to B (in effect an authorisation), B is allowed to copy work 1.
Now, Digital Rights Management (DRM) systems have gained in importance over the last few decades, as the digital revolution unfolded and it became surprisingly easy to copy works such as digital music recordings, computer games, digital versions of films, …
In effect, DRM systems enable the rights holder to prevent many of the aforementioned “restricted acts” by rendering them more difficult, through the use of technology.
DRM has been heralded by many as a means of reducing piracy, notably by the music industry after Napster and Kazaa brought file-sharing to the world of computer users.
However, more often than not, it seems that DRM hurts those who legally acquire an item more than it hurts those who acquire it illegally.
Let us look at a recent case study, a controversy around the upcoming Assassin’s Creed II game for the PC (AC2), a sequel to the popular Assassin’s Creed. Ubisoft released AC2 a few months ago for several game consoles, but the PC version is only set for release around mid-March.
As the release date approaches, reports have surfaced of a new kind of DRM: it seems that Ubisoft require gamers on the PC version of AC2 to have a constant internet connection for the game to work. If your internet connection quivers, you lose all progress since your last checkpoint. If you don’t have an internet connection, you can’t play.
Who does this hurt most?
Theory 1: “piracy”. This is the official explanation. Ubisoft believe that game piracy on the PC is so large that the only way to stop it is to ensure that only players with a legally acquired copy (so-called “legit users”) can save their progress. This does not convince me: Ubisoft have stated that they can “release a patch so that the game can be played in single-player without an online connection” (source), which means that pirates may very well create the patch themselves, and pirate copies will start floating around the internet very soon.
Theory 2: Ubisoft and “legit users”. This seems to be the point the entire internet community is making, from Ubisoft’s own web forums to Ars Technica. It boils down to this: many people who have bought Ubisoft games in the past are frustrated by the announcement of this limitation, and will not buy the game. Therefore, Ubisoft have less pre-orders of its games. People who buy this game will be frustrated by the sudden inability not to continue playing the moment their internet connection drops, and will perhaps not buy Ubisoft games in the future. Therefore, less profit for Ubisoft in the long run. And both kinds of users may resort to piracy to go around this limitation. Therefore, piracy goes up.
Unless Ubisoft realise this soon (the game will be released in a week), its DRM scheme will hurt Ubisoft’s profits and generate more piracy. How does this fulfil the purpose of the DRM scheme?
As for me, I’m still hesitating, waiting for now. I have had a pre-order of AC2 for some time now, but I may cancel it in the coming couple of days. We’ll see how things progress.
All in all, though, this perfectly illustrates one problem: technical implementations of copyright restrictions are alienating users who would adhere to the original business model. Too much copyright, through DRM, kills copyright.
Patents
Let us now examine patents (pronounced “pah-tent”, not “pay-tent”, in the UK, notably to distinguish the adjective “patent” [as in "patently"] from the noun “patent” [as in "patents"]).
This analysis is once again based on English law (the Patents Act (PA) 1977).
Patents are a monopoly right given to commercially exploit an invention. In other words, with a patent, the owner has an exclusive right to make this product or carry out this process, to the exclusion of everyone else, even if someone else creates it without having copied from the owner.
Patents are granted after a procedure that involves publishing information about the product/process, and thus the theory goes that the monopoly right conferred by the patent is counterbalanced by the publication of this information.
However, this right has limitations, two of which are of great importance: if B has created such a product or employed such a process before the publication of A’s patent, B will still be allowed to continue doing what he/she did beforehand; also, if A gives a licence to B, B is allowed to exploit the invention.
The patent system is generally given a few justifications: it serves as a reward for innovation (you invent something and are given a monopoly as a reward), it serves to incentivise innovation (the monopoly allows a return on investment – this is slightly different from the “reward” justification), it is a natural right (inventors should have a right in their invention), it allows the sharing of information (the patent allows the publication of information that would perhaps not have been shared otherwise). While one can disagree with these justifications, the first two seem to be still very present today.
There is one field in which patents have been the focus of debates and controversies: biotechnology, and we shall examine certain of the issues here.
The question of the patentability of biotechnology came to the forefront only in the late eighties/early nineties, with the OncoMouse case, which concerned one of the first transgenic animals, a mouse whose genes were particularly susceptible to cancer.
Biotechnological inventions have been the target of specific regulation in Europe since the adoption (after a long history of parliamentary debates, revisions, …) of the Biotechnology Directive, which takes into account the lessons from the OncoMouse case and other, later cases.
Taking cue from the Howard Florey/Relaxin case, the Directive specifies the following in Article 5:
1. The human body, at the various stages of its formation and development, and the simple discovery of one of its elements, including the sequence or partial sequence of a gene, cannot constitute patentable inventions.
2. An element isolated from the human body or otherwise produced by means of a technical process, including the sequence or partial sequence of a gene, may constitute a patentable invention, even if the structure of that element is identical to that of a natural element.
In layman’s terms, the situation is the following: when one discovers a discrete segment of DNA that contains the information necessary for producing specific proteins, one can reproduce it synthetically. Does this amount to a discovery, or is in at invention that can be patented?
The answer for which the Biotechnology Directive provides is that any gene that is isolated and thus created separately can be patented. The technical intervention is the creation of the artificial molecule, and this allows patentability.
Can you see the logic behind this rule? The more I think about it, the less I understand it. It may make sense to allow the patenting of the process used to isolate a gene, but what could possibly justify issuing a patent for the isolate gene itself?
According to this logic, if A isolates gene Z using method 1, whenever B isolates Z using method 2 there will be infringement, despite the fact that Z already exists in nature.
The patenting of a gene or of a molecule existing already in the human body causes all sorts of other issues, notably regarding innovation. Indeed, if A obtains a patent on molecule Y, A can oppose any use of molecule Y. Yet in the case of pharmaceuticals, medicine and other such areas of practice, the use of molecules is the starting point for any research.
The patent system is often seen as an incentive to innovation, but this is then surely one area where it stifles innovation, as one has to obtain a licence for the use of a molecule before one can even start doing any research. If one sees the patent system as a method of rewarding innovation, does this not go too far?
Closing comments
To me, intellectual property is a good thing to have in the Western society in which I live (I have very strong reservations about the way Westerners try to force intellectual property upon developing countries, but that’s another matter). Copyright especially has a special place in my heart as an author and composer: I would dislike to see any works I do be attributed to someone else, for example.
However, the current systems of intellectual property have flaws.
Copyright, which once favoured the author, has gone to favour the producer/publisher, and the latter has decided that fighting piracy is a topmost priority, to the extent of alienating normal users. What is the Creative Commons movement if not an indication that copyright in the minds of creators goes too far?
Patents, which cover most products and processes, may also be seen as going too far in certain cases. The biotechnological sphere provides us with illustrations, but it is by no means the only one. Furthermore, in the EU, incremental inventions gain as much protection (if not more) as a pioneering invention.
One major issue in all of this is that complaining appears to be of no use. The USA adore IP rights, and so does the EU. Powerful lobbies seem to always push for more rights for the industry (whether the publishers/producers for copyright or the companies with huge Research & Development sections for patents). Will the community of world users and creators/inventors ever take back what they have lost to the industry?