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1. What is the right to share information?

กแ Why is Intellectual Property Right at issue?
The Universal declaraion of Human Right showed that everyone has the right to access to the benefit of science and technology.

Article 27
1. Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
2. Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.

In spite of this Article 27, most people in the developing or underdeveloped countries do not have access to cure for HIV/AIDS in a situation where the spread of AIDS is virtually threatening a significant part of the globe. The reason why people affected by HIV/ADIS cannot take cure for the disease is the high price drug companies charge in the name of exercising their patent right.
 Popular use of the Internet and development of file-sharing programs like P2P that the Napster was based on opened a new way for more and more persons to taste cultures and knowledges around the world. However, cultural companies like music labels and film companies stand in the way armed with copy right.

กแ Intellectual Property Right, Patent and Copy Right.

Intellectual Property Right is "an ownership on intangible intellectual asset". It gives artists or inventors certain exclusive rights to their invention or work. For example, if you buy a book, your ownership is limited to only the physical feature of the book, In other words you can tear it or give it to another person but yor are not allowed to copy it. The right to publish, copy and distribute the story still belongs to the author.

Intellectual product like knowledge and culture is different from tangible product like car and desk. Tangible product can not be shared because one cannot drive the same car at the same time in different places. But you can share knowledges with others at any time at any place. Due to this feature of intellectual product, if unrestricted, knowledge and culture would go around as far as possible.

Therefore, to guarantee the author or creator`s exclusive right technological or legal tools to block piracy are needed.

There many kinds of intellectual property rights.
Copyright is to protect artists. Copyright holder has the right to make public his/her artwork in his/her name as well as the exclusive right to copy, perform, distribute and exhibit it. Copyright is automatically given to the creator at the time of creation without registration and is effective until 50 years from the death of the creator.
Patent is to protect idea(invention) in the industrial and technological sectors. It gives inventors monopoly on their idea for certain period of time. Unlike copyright it should go through inspection to obtain patent, which is effective for 20 years.

A lot of information and knowledge including trademark, business secret are nowadays emerging as new fields of the intellectual property right. Intellectual property right was made to provide incentive for artists to lively engage in creative activities by economically compensating them. Patent also was designed to serve as a driver to develop and diffuse new technologies by publicizing the details of an invention.
However, intellectual property right is not ownership. Throughout the history, culture and knowledge has been recognized as common asset of humankind, not subject to private ownership.  That is why the intellectual property right to an intellectual asset  was set to be temporary and after the term of validity the public holds the right to the asset. This is a kind of effort to strike a balance between private interest and common interest.

Criticism on the concept of intellectual property right

Richard Stallman of Free Software Foundation said that the concept of intellectual property right mislead people to think they can have the same ownership right to information as to tangible products, even though the concept of ownership was originally for tanigible products and information is intangible and totally different.  And the term, intellectual property right, tend to be often used in a vague manner as if it includes all the three rights: copyright, patent, trademark. But each right has different historical context and range of application. The term, intellectual property right recently came to use as WIPO set up in 1967. Therefore it is recommended to use copyright, patent or trademark right suitable for certain cases instead of intellectual property right.    

 2. Violation by patent of fundamental rights

กแ Current trend of patent right

The range of patent has been expanding and strengthening since it was made to give monopoly to an invention of a product in the beginning. Above all the term of validity of patent has been extended to 20 years worldwide under TRIPs adopted by the WTO. Not only that, according  to the principle that everything under the sun is subject to patent law, software, business knowhow and even life fall under the influence of the patent law.

Internationally there is a move to come out with a common standard to determine whether or not an information is subject to patent and a common process to obtain patent. Advanced countries led by the United States are putting pressure on individual nations while most patent rights are owned by a few multinational companies of the rich countries such as the U.S, Japan and many European countries.

Against backdrop,  strict patent law does not necessarily lead to industrial development. On the contrary, the patent makes the Third World consisted of countries with little technological power more dependent on the rich countries. Stronger patent law could backfire resulting in less and slower development of technologies. In a way patent law prevents people in the Third World from using pills to cure diseases because it enables pharmacies to impose high prices poor people cannot afford to pay.

กแ Patent for software and business method

Softwares are protected by copyright. But thesedays some people insist to patent even the algorithm of a software. The European Union had tried to pass a software patent law but failed faced with severe opposition from proponents for free and open software. In addition imposing patent for business method is also a controversial issue. In fact software algorithm or business method has not been subject to patent law so far. Though since a US court ruled that patent law can regulate anything the registration of patents for software algorithm and business method has been flooding.

Basically patent should serve as an incentive to promote development and innovation of technology. But technology has evolved at an alarming speed without being well protected by the patent law. Microsoft achieved success dominating the world computer market without the help of patent law. In other words Patent law is likely to undermine, not promote, a growth of technology.  Moreover 20-year monopoly to the algorithm and business method is virtually a monopoly for good given the rapid speed of technological development. That goes against the original spirit of patent law. If patent  rather helps the developed countries to consolidate its monopoly to technologies, it aggravates the dependence of the Third World.

กแ Life Patent and Compulsory License

One of the arguments surrounding patent is the conflict between pharmaceutical patent and health right.  Ministrials from around the world adopted a declaration that agreement on intellectual property right for free and fair trade should not prevent member nations from carrying out policies to further public health in the WTO meeting held in 2001 at Doha, Katar. This declaration was caused by the serious ADIS epidemic. AIDS killes 8,000 lives everyday and 95% of those infected with the plague live in the underdeveloped world. Cure for ADIS has already been developed but high prices of the ADIS drug and poor health care system block proper treatment fot the ADIS patients. One of the reasons for the high prices is that patent law enables multinational drug companies to keep ADIS cure expensive and violate the ADIS patients` right to good health.
The best way to prevent the misuse of patent law is compulsory execution. Compulsory execution means allowing a third party to use patented information or idea regardless of the patent holder`s opinion. If company A has the patent right to a cure, any other company dare not to produce the cure without the permit of company A because of patent law. But if compulsory execution is implemented, other companies can produce the same drug at an lower price without permit from company A.

Not only should Patent protect one side, the inventor, but  guarantee the common interest of a society. This is truely fair exercise of patent right and compulsory execution can realize the fair exercise of patent right.

However, it is impossible for goverments of the Third World decides to adopt the compulsory execution because the multinational pharmacies and the governments of the advanced nations  put pressure on them.

3. Copyright in the digital society

กแ Copyright and fair use

One of the misunderstandings on copyright is that copyrighted products are owned by the creators and copyright exists only for the copyright holders. But eventually the perpose of copyright law is to encourage cultural development. To that end, an exclusive right is given to the creator "for certain period of time". Copyright is based on the assumption that knowledge is the common asset of all human beings. Threrfore copyright is distinct from general ownership rights.  

The exclusive right given to the copyright holders is limited to some extent for public purposes or diffusion of knowledges. For example, media reports, documents at trials and books in libraries can be used without the permit from the copyright holders, if they are used for educational and non-profit purposes. This is called "fair use". Fair use is not exceptional cases in the exercise of copy right. It should be recognized as a user`s fair right to access information and culture.

กแ Dilemma of copyright in the digital environment.

Why is copyright at steak in particular in the information society? We should look at two major changes. One is the incresed importance of cultural industry like music, film and comics and occurance of information and technology industry like software and database. Even though copyright existed long ago in the 17th and 18th centuries, the growing infulence of the cultural and information industry makes copyright in the center of controversies.

The other is the rapid development of technologies which transfer most information digital and networked enabling easier copy of information. The evolution of copy method including copy machine and VTR frequently came under fire by copyright proponents and now digital technology and the Internet are in its nature contradictory to the copyright law.

กแ Different concept of copying in the digital world

In the off-line world, access and copy were separate. Leafing through a book in a bookstore does not accompany copying and is not an act of encroaching on copyright. Copying has been carried out usually for commercial purposes. But in the digitally networked society you never access an information without copying it. For instance, when you watch the content of a webpage, the files that constitute the webpage are copied and sent to your computer. Therefore, giving the copyright only to the web designer or programer  means limiting users` right to access information.  

กแ Change in the creation process

Digitalization of information made it easier to modify and combinate as well as to copy and send informations. It is not difficult to modify an image downloaded from the Internet or to change part of a program someone developed and make the revised one compatible to your computer environment. This secondary product can be as valuable as the first product for an individual or an society. The development of technology blurred the line between producers and users. That is, everyone can be a user as well as a producer in the digital society. The purpose of the copyright is to promote social and cultural development. But stronger copyright law would rather undermine the cultural development of a society by banning the secondary production.   

กแ Change of the Social Environment

In the digital environment, you cost little in reproducing a copy of an original product. You can also send the copy at any time to any place through the computer network. Access to information on the Internet became part of our daily life. This change is said to have made a breakthrough in terms of distributing more knowledge and culture to more people. But an intensified copyright would overshadow the benefit of the changed environment.

The point is that, without thorough debate over the issue,  copyright is being strengthened on the ungrounded belief that protection of knowledge and information must be strengthened  

Digital Library

Library is the example of many institutions to provide public access to information. Library has been recognzed as the place for fair use.

However in the case of digital library, a question arises. What is the limitation of fair use? In 1996, WIPO added a new right for copyright holders allowing them the right to permit the on-line or wireless use of their copyrighted products. Accordingly, allowing users to have remote access to the books in the digital library can be the source of legal dispute over copyright infringement. Moreover, copyright advocates argue that not a book would be sold if readers can at a distance read books in the digital library.  

But, it is of no use building a digital library with remote reading prohibited. And it reduces the great benefit of a digital library. The issue of the digital library shows how hard it is to draw a line between copyright holders` interest and users` right to access information in balance.  



Napster was a website where users can swap MP3 music files with P2P(Peer 2 Peer) method. The association of the US music labels sued the internet service for copyright infringement. It said that users` file sharing was to violate copyright law and Napster helped their illegal act. The US court upheld the music companies, as a result Napster was forced to turn pay-per-use service from Oct. 29th, 2003.
The issue is whether the non-profit and personal use of music files on the internet can be classified as fair use. Swapping and listening to MP3 music files through Napster is similar to lending music tapes or giving a set musics from different albums as a present to friends. If file-swapping through Napster is illegal, so is exchanging files by email or messenger. Then, to prevent uers` illegal use of the internet, Internet service providers should monitor what users did and where they went on the internet. And this is utter violation of the users` privacy right.

The controversy over Napster is a good example of  the discord between change in the user environment and copyright law.

4. Changes in Copyrights

It is noticible that the subject of copyrights has been changed from an individual to a 'company.' In other words, a writer is not a subject of copyrights as we have thought. In modern society, a creator is just an individual who is subjected to a company or an employee. The real benefit taker from copyrights system is investors, that is, information and culture companies.

Once the subject of copyrights becomes a company, the social meaning copyrights have also changes. Copyright is for 'the government' to endow monopoly right to control copy or circulation of certain copy right. By the way, the social damages such a monopoly creates are enormous. That is why we cannot think of present copyright just as 'protection of creators.'

As a tendency to possess copyright is getting strong, copyright is becoming an 'investment protection law,' losing its original intention. Worse, some that were not included in copyright protection are becoming protection objects for the purpose of protecting company investment. Computer programs and protection of datebase that is without creativity are the examples.

The World Trade Organization agreement on intellectual property is the outcome of demands of advanced countries which have competitivity in information and culture industry. The agreement was set in favor of developed countries and forced other countries to follow the same copy right system, failing to set up policies of knowledge and culture that are fit for each country.

5. Software Copyright

กแ Problem of Software Copyright

The copyright agreement on trade included computer programs as copy right protection item. But, is it fair to protect a computer program with copyright system? Computer programs are 'functional creations' that is to perform specific functions, so it is not proper they are treated the same way other artistic creations are. Computer programs are different from other artistic creations in that the creator or other people can upgrade, and their source code can be modified according to each user environment.

Furthermore, in case of other creations, you can get the source at the same time of the access to the creation. But, in case of computer programs, the use of programs and the opening of the source is separated, so even if you access to the program, you cannot get anything if the creator does not open the source. In other words, while protection of creators in computer programs is stronger than in other creations, there returns little public benefits.

Let's take an example of the monopolist operating system, Window of Microsoft, which already takes up 90 percent of the world market for pc operating system. On top of it, the company enjoys a dominant position in other fields like Word, Excel, Office program, web browser, media player.
The damages done by the monopoly is clear. In the short term, the technological innovation and users' convenience might seem to be increasing, but, in the long term, it will undermine technological development, eventually limiting the choices of users. This is why concerns over MS monopoly are rising in Europe and America and there are suits filed against the monopoly. However, MS is skillfully avoiding the legal regulations and is enlarging its fields of monopoly through new versions of software.
Legal regulations that can control MS's monopoly should be ready in each country such as opening of window source or company spinoff. In addition, the government needs to have a policy to use problem-free software in government agencies, of which source is open.
6. What are the Alternatives?

Intellectual property is losing its original intention to promote technology and culture and to motivate creators; but it rather collides with rights, say, information access right, health right, or human rights, or it limits creativity. This is not irrelevant to the fact that intellectual right is based on 'market-centred production, circulation, distribution, and consumption system.' Now creating knowledge itself is not a purpose, but the desire to obtain profits through sales of informational products is leading the creation of knowledge. As a result, there shows distortions in the production structure of knowledge and culture in a society. For example, while entertainment and sexual products that are commercially valuable are active, liberal arts or social science are tend to weaken.
However, the system of intellectual right is not only the problem of 'legal system'; since it is connected to the producing patterns of knowledge and culture, it needs to be examined from many perspectives.

กแ Guarantee of Fair Use

Intellectual property right, a monopolized right that is politically provided, should be implemented within the range where it won't inflict other basic human rights. That is to say, the access of fair use within intellectual property system should be expanded. For example, compulsory enforcement is necessary in cases when health rights are inflicted by medicine patent. In addition, user's access right to information in digital environment should not be impinged on in the name of copy right.

กแ Expansion of Public Domain

Public level of support for production of knowledge and culture should be enforced and the products should be shared by everyone. The expansion of public domain everyone can use is not only essential means to get over the information gap, but also it will facilitate production of other knowledge and culture.

For that, development and use of free software needs to be facilitated. At the same time, there should be efforts to guarantee users' access and to share information in various content areas through Open Content License and through sharing scientific archives.

กแ Copyleft Movement

Copyleft is a license Richard Stallman devised to use in GNU/Linux. It is a way first to endow copyright to their programs and then to add GPL(general public license). GPL states that "anyone can freely copy and use this program and can modify it, but, in case of modification, the modified program should also follow GPL." This is called copyleft, and this kind of software is called 'free software.


Copylefted by
Korean Progressive Network 'Jinbonet' 2003.

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