1. What is the right to
กแ Why is Intellectual Property Right at
The Universal declaraion of Human Right showed that
everyone has the right to access to the benefit of science
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.
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.
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.
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
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.
on the concept of intellectual property
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
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.
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
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
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.
Copyright in the digital society
กแ Copyright and fair
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
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
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
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
Library is the example of many
institutions to provide public access to
information. Library has been recognzed
as the place for fair use.
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.
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.
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.
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.
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?
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
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
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
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