People have complained that IP creates a monopoly which causes some social issues such as the affordability of patented pharmaceutical drugs. However, we can see this argument from the following aspects.
At first, monopoly from the intellectual property right shall not be regarded as a negative word but a neutral concept. The intellectual property right is an exclusive right from its very origin. For example, the world's first patent law the Venetian Patent Statute was issued in 1474 to grant 10-year protection to the authors or inventors “who makes in this city any new ingenious contrivance,” and to protect the contrivances away from copying or infringing by others.
Any infringers shall be punished and pay one hundred ducats to the inventors, and the infringing contrivance shall be destroyed immediately. In this way, the Republic of Venice managed to keep its competitive advantages in industry and science and acted like a leading trading and economic power in Europe during the Renaissance. Thus, the origin of IP does impact the society positively.
Meanwhile, it is worth noticing that intellectual property right is a mechanism to relocate the social wealth. Imagine the days before the intellectual property right system is established, people were very difficult to create their wealth without capitals, lands or skilled labor. However, the intellectual property right system opens a door for people who do not have many social resources but are very smart and creative.
For example, back in the 19th century the well known English writer Charles Dickens published 16 novels during his life and received rich financial rewards from his copyright. He was regarded as the first “author” in the English literature who mainly made his living on writing alone instead of marrying the rich or family heritance. He was rewarded because of his creativity and innovation in literature in the copyright system. In this way, intellectual property rights on some degree helped with social motilities and social justice.
Furthermore, we shall not blame intellectual property right itself for affordability issues to patent drugs. Some patent drugs are expensive not because of patents, but because of the time and financial costs of inventing and developing these drugs are tremendous. This is one of the main reasons that patent drugs are expensive and the patent system protects its novelty, inventiveness and industrial applicability.
Then we may ask how to balance between the public interest and private interest? The answer would be two. One lies inside the laws and rules of intellectual property right itself. For example, intellectual property rights are not eternal which means the monopoly only exists for a period of time.
Invention patent, the term of the patents rights, is 20 years since the date of filing. Also, intellectual property right system also provides limitations to these rights within its legal system.
The fair use in copyright law is a good example that allows recreation under certain circumstances, such as parodies in some countries are encouraged to create humor, laughter and happiness. Furthermore, many counties also have competition law or anti-trust law to regulates the naughtier players who are too aggressive in the market.
Overall, if we see intellectual property rights from more dynamic angles, we will find it is a neutral concept with specific adverse effect can be justified. Total abolishment of IP system would create chaos in the social order, and the creative groups will lose their protections and rewarding system.
This article was originally published in CGTN on 7 November 2018, and is reproduced with the consent of the author and CGTN. Dr. Nan Zhang is an associate professor at the China University of Political Science and Law. The article reflects the author's opinions, and not necessarily the views of China Justice Observer.
Contributors: Nan Zhang 张南
