Sam GhandchiNeed to Reform Intellectual Property Laws

Sam Ghandchi


Persian Version  متن فارسی


Adam Smith in the beginning of his Wealth of Nations compares hunter-gatherer societies with the agricultural societies, which have domesticated animals, and writes that the latter can accumulate its product, and for the product, he gives the example of cattle. In fact, the difference between a wild deer and a domesticated cow is in the latter being controllable, and ultimately with the guarantee of law and state, can be owned as property.

Inventions or software, in countries where the rights are secured by the state, is different from free thought and science that had existed for centuries even in ancient societies, because this new phenomena can be controlled and owned, and thus represents a new form of wealth referred to as intellectual property.

In industrial society a limited number of products such as books or paintings were defined as intellectual property by being protected under copyright laws. But in post-industrial societies we are seeing a myriad of such products with millions of patents registered in different countries, as this new kind of property is the main part of wealth in new economies, surpassing industrial and agricultural properties in their value.

The most important products of post-industrial society are comprised of codified knowledge as explained thoroughly by Daniel Bell in the 1999 Preface to his book The Coming of Post-Industrial. What he calls codified knowledge, today is easily seen in the complex design of ASICs in the production of semiconductors, and such designs, separate the real post-industrial economies from old service-oriented economies.

It took centuries before agricultural and industrial property rights were established in the world and the fairness of the laws concerning those forms of property were examined. Intellectual property in contrast is a very new phenomena and the laws governing it that have been passed on from the industrial society were centered around things like books or music records and can hardly be considered flawless when applied to new post-industrial intellectual property such as patents on pharmaceutical drugs. In addition, long court battles have been fought over patent-eligibility, such as for human genes, with a recent court ruling in favor of gene patents, showing the lack of clarity surrounding intellectual property laws (1).

This is why many different enterprises in the post-industrial economies have challenges to meet when facing the issues surrounding the music industry on the Internet, for example the legal battles that shut down Napster. But the challenges are not limited to music industry. In fact, the drug and pharmaceutical sector is facing a real dilemma when using old laws to fit the new products. For example, generic drugs made in India are orders of magnitude cheaper than their counterparts in the United States, and the copyright battles between Cipla and Roche are as hot as the patent wars of Apple and Samsung in computer business (2).

Recently an issue has come up about anti-venom medicine a patient needed which cost $39,652 in Arizona state of the U.S. whereas the same medicine costs $100 a few miles away in Mexico (3).

A lot of times, many of the intellectual property patents are not even developed by their registrants and they wait for others to develop it and then to claim royalty. This is like those who owned barren land in the past but did not develop and waited for land to appreciate its value to sell. The Homestead Act in 1862 in the U.S. put a five year limit for one to develop such lands.

It is time to reexamine the intellectual property laws especially in light of global economy and make them more based on international criteria especially when they are being applied beyond nation states.

Sam Ghandchi, Editor/Publisher
September 17, 2012