It’s time to restructure intellectual property law

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It is difficult to find a person who has not heard the song “Happy Birthday” at least once in his life. The fact that it is traditionally sung to celebrate birthdays makes it the most recognized song. But do we know that singing the song in public was forbidden before 2015? Warner Chappell Music, an American music publishing company, owned the song’s copyright until that year; had it been performed in a public event before that, it would have resulted in the company’s violation of law, followed by a lawsuit. It’s one of the main reasons restaurants tweaked the song and created their own version.

Like copyright, many other rights are protected by intellectual property (IP) law. Intellectual property law is the branch of law that provides protection against the creation of intellectual property, such as inventions, designs, artistic works, literature and recipes, by prohibiting their unauthorized use. But just as there is no rose without a thorn, intellectual property law has also become a cornerstone allowing capitalist industries to thrive at the expense of the working classes. Under intellectual property law, capitalists have the right to be the sole manufacturers, producers, distributors, or purchasers of goods they have produced or licensed to them. As a result, these corporations often raise the prices of basic necessities, such as medicines and agricultural products, turning them into a luxury that only a handful of people can afford.

Many cases illustrate the system defying its own intentions, the most common being the music industry, where the distributor takes a large portion of the music revenue. Artists typically only owe 12% of the total income generated from music sales in the United States. The rest goes into the pocket of the intermediaries, that is to say the music companies. The Warner Music Group, which owns the rights to “Happy birthday to you,” received $2 million in royalties in 2008 for a song written nearly 100 years ago by people who had died decades ago.

Pharmaceutical companies also benefit from the protection of intellectual property law. They used this privilege to create a monopoly by patenting the product and becoming its sole manufacturer. As if that weren’t enough, they charge a hefty amount on meds, keeping the basics out of the reach of tough guys. It’s understandable that they charge a huge amount on the drugs to recoup the research and development costs that went into creating these drugs. But pricing drugs in such a disproportionate way doesn’t sit well with the rationale. The global pharmaceutical market is worth 1228.45 billion dollars in 2020 and is growing at the rate of 1.8% per year, thanks to patents on these products. Johnson & Johnson (J&J) alone had revenue of $93.78 billion in 2021.

Similarly, the drug “Lemtrada” was manufactured at the University of Cambridge to help patients with leukemia. Pharmaceutical companies have done a little more research on this and found that this drug in small doses will also help people with multiple sclerosis (MS). They rebranded the drug as a cure for the treatment of MS and priced it 20 times higher. Again, the main reason behind this is greed associated with money. They realized that the market for people with MS was bigger and richer than the market for leukemia patients; so they increased the price of the same drug ridiculously because the manufacturing formula of the drug was protected by intellectual property law.

Another example would be the minimum amount of capital and labor invested in curing tuberculosis and malaria. Only two new drugs have been created for tuberculosis in the last 50 years, but much more funds have been invested in research for the treatment of male pattern baldness despite the fact that the latter is not as necessary as the first ; the reason – again – is a higher profit potential in the latter.

This gap in intellectual property law has also affected the agricultural industry. Monsanto was the first company to file a patent on natural resources. The company genetically modified cotton seeds, patented them, priced them higher than other cotton seeds and targeted Indian farmers. They convinced farmers of its long-term benefits despite its high price. In reality, however, the farmers got the opposite of what was promised and they were forced to bear a huge loss in the form of loans.

This raises a crucial question: is there a way to change the IP system? System change is not only necessary but also inevitable. A cultural shift in other industries is proof of that. In the software industry, products that do not have intellectual property protection compete with those that do. Microsoft and Oracle, for example, charge license fees for their use, while an open source system such as Linux prohibits the use of intellectual property in its model. Based on past evidence, it is clear that open source has consistently overtaken proprietary software.

Many argue that the intellectual property system is deeply flawed. The apparent distinction between an innovation and a pirated copy is that the former has a novel feature and therefore falling on the other side of the spectrum would be a crime. The paradox, however, is that the distinction that intellectual property makes between imitation and innovation is not black and white. In fact, anyone who has created anything knows that all innovation begins with and largely consists of imitation. Simply put, innovation is not possible without imitation.

Even though the intellectual property system is a blessing for the innovation industry and artistic works, it has made it difficult for ordinary people to meet basic needs. Therefore, a liberal system that distinguishes products according to their urgency and necessity could be a solution. The first step in this direction might be to remove basic conveniences from the IP system, and then make the system democratic and fair. As long as the power to manufacture basic equipment such as medicine and agricultural crops is in the hands of a few, the monopoly will continue and so will the suffering of the poor.

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