Who owns culture?
Who owns language, science, art, the accumulated genius of technology? Who owns history? Who owns the collective intellectual heritage of the human species – culture, broadly defined? Who owns, in short, the human library?
Who owns it, and who has the right to sell it?
Mostly culture is intangible. You mostly can’t bottle it up, or lock it away, which hasn’t stopped people trying. And sometimes it seems tangible, in the form of books, or sculpture, or polycarbonate disks of video images, or magnetic codes on a hard drive, the hardware that houses the cultural software. All of which makes it difficult to frame legislation affecting it. Which again hasn’t stopped people trying. Which has resulted in the widely accepted but entirely ludicrous notion of “intellectual property”, a term encouraged by corporations who want to propertize and therefore profit from intellectual endeavor, and a whole industry of patent and copyright lawyers who abet them. The system is now out of whack, and needs badly to be corrected. In particular, it should be brought into line with the global need to equalize opportunity and to encourage open inquiry.
Patents first. The no-less-ludicrous notion of copyright will follow in another post.
In 2008, the satirical weekly The Onion published, deadpan, a piece of news: “In what CEO Bill Gates called ‘an unfortunate but necessary step to protect our intellectual property from theft and exploitation by competitors’, the Microsoft Corporation patented the numbers one and zero Monday. With the patent, Microsoft’s rivals are prohibited from manufacturing or selling products containing zeroes and ones—the mathematical building blocks of all computer languages and programs—unless a royalty fee of 10 cents per digit used is paid to the software giant.” The piece went on in this gently satiric vein for some time, and concluded with these paragraphs: “Despite the swarm of protest, Gates is standing his ground, maintaining that ones and zeroes are the undisputed property of Microsoft. ‘We will vigorously enforce our patents of these numbers, as they are legally ours,’ Gates said. ‘Among Microsoft’s vast historical archives are Sanskrit cuneiform tablets from 1800 BC clearly showing ones and a symbol known as ‘sunya,’ or nothing. We also own: papyrus scrolls written by Pythagoras himself in which he explains the idea of singular notation, or ‘one’; early tracts by Mohammed ibn Musa al Kwarizimi explaining the concept of al-sifr, or ‘the cipher’; original mathematical manuscripts by Heisenberg, Einstein and Planck; and a signed first-edition copy of Jean-Paul Sartre’s Being And Nothingness. Should the need arise, Microsoft will have no difficulty proving to the Justice Department or anyone else that we own the rights to these numbers’.”
Ridiculous, yes? Then what to make of the unfunny notion that Microsoft really did apply for a patent … for conjugating verbs? Actually employed software designers, lobbyists and patent lawyers to put forward US Patent Application 20060195313, with the following abstract: “A verb conjugating system allows a user to input a form of a verb and display the verb forms. The verb conjugating system allows the user to input the infinitive form or non-infinitive forms of a verb. When a user inputs a non-infinitive form of a verb, the verb conjugating system identifies a corresponding base form of the verb. The verb conjugating system then uses the base form to retrieve and display the verb forms for the verb. The verb conjugating system may highlight the non-infinitive form of the verb within the displayed verb forms to assist the user in locating the verb form of interest.”
It’s not really difficult to find patents – even granted patents – as ridiculous, or even more so. A couple of examples:
* Life forms, even existing life forms, have been successfully patented. One is an immuno-deficient strain of mouse called NOG – a strain that arose through spontaneous mutation, not through any artifice of man – that has been patented in the US by a Japanese lab, the Central Institute for Experimental Animals, and that institute has sued the Jackson laboratory in Bar Harbor, Maine, for patent infringement, notwithstanding that the Jackson lab is non-profit, and has developed more than 400 strains of mice of its own, including one very similar called NSG, that it has made freely available to anyone who wants to use them.
* US Patent Application 20090030925, also filed, alas, by Microsoft, seeks to patent a way of analyzing evolutionary family trees, or as the application puts it, to control “a way to use biological datathat has been organized according to evolutionary relatedness.It includes methods for counting evolutionary events and groupingpositions within molecules.” Its developer, Microsoft database expert Stuart Ozer, denies it was meant to apply to creating phylogeniesor determining evolutionary trees, “only to a technique for makingfurther use of the variation seen among sequences used in suchan analysis.” The application was, for obvious reasons, opposed by phylogeneticists, who have been using similar techniques for years.
* A molecular biologist at Simon Fraser University in British Columbia, Willie Davidson, applied for a patent to control the use of a piece of mitochondrial DNA “to identifyunknown specimens by comparing that specimen’s DNA sequencewith a database of DNA of known organisms.” The pending patent was granted to a French company, Atlangene, which immediately challenged the right of a British food sciences laboratory to use the same string of DNA to identify tuna species. (In this case the Natural History Museum in London challenged the application, and Davidson withdrew it).
* Another DNA application in Britain, by a member of the Royal Botanical Gardens at Kew, near London, in which the DNA string was used to identify and then barcode plant species, with also withdrawn after protests.
* In 2009, the US Supreme Court agreed to hear an appeal by two entrepreneurs whose patent application had been rejected, and then rejected again by a lower federal court. The aggrieved plaintiffs, Bernard Bilski and Rand Warsaw, had wanted to patent an idea for buying and selling bulk materials, such as coal,while hedging their bets with contracts at different prices, a scheme similar to trading systems used for decades by literally hundreds of stock market players. As a report in Legal Times described it, “the US Court of Appeals for the Federal Circuit [agreed with the Patent Office] that a process for predicting and hedging risk in commodities markets did not deserve a patent, because it was not tied to a machine, and did not result in a physical transformation.” The ruling, Legal Times said, “sent ripples through the IP [information processing] world, with critics saying the decision would slow innovation in the areas of information technology and financial services, where patents are sought – and had been granted – for new processes that are less tangible than a physical invention.”
* And there has been an attempt to patent deep-fried beer.
What are patents for?
So what are patents for, anyway? As originally conceived, they were a public benefit indirectly applied, by trading off the benefit of incentive for inventors (allowing them to recoup money they might have spent in developing their ideas, and then to reward them for having the idea in the first place) against the harm to innovation done by preventing others from developing variants, and thus, in aggregate, forwarding scientific progress. Protecting inventions would therefore “incentivize” others to innovate too, “to add the fuel of interest to the fire of genius,” as Abraham Lincoln put it. Monopoly is a downside hazard.
However, the system soon went off kilter. Thomas Edison, for example, used his broad patent for improvements on the light bulb to prevent competitors improving on his device, and thereby drove them out of business. The Wright brothers patented the airplane, or at least devices for steering airplanes, and were only bullied into relinquishing their “ownership” by a federal government facing an imminent world war.
Patents on drugs are the most contentious of all. Why is it acceptable for any corporation to restrict access to any drug if using the medication could save lives? A prime example is the expensive drugs used to control AIDS. The US drug company Gilead makes Tenofovir, a useful AIDS cocktail that costs more than $5,700 per patient per year; an Indian knockoff company makes a generic copy of the same drug for less than $800. Who is right? Gilead sued the Indian company, Cipla, but lost in the Indian courts, which are notoriously relaxed about patent rules. Cipla has now gone further, combining drugs from three different companies under three different patents into one, thereby creating a simpler regime for patients, and a much cheaper one. The head of GlaxoSmithKline, the biggest drug company in the world, has called Yusuf Hamied, the head of Cipla, a “pirate”; Hamied retorts that GSK is a “global serial killer” for its high prices.
There’s no doubt that expensive western drugs, rolled out cheaply through the developing world, would save literally thousands, maybe millions, of lives. Against this, what, money? The socially utilitarian choice seems obvious. Ben Goldacre, from whose Guardian column these examples are drawn, analyzes the issue succinctly “Drug patents are a fascinating tradeoff between the benefit of incentive, and the harm to innovation. It takes about $800 million and 10 years to bring a drug to market: during this time you make no money, and your drug could fail at any stage. As a sweetener, after this, you have 5 years of being the sole manufacturer to recoup your costs and make a profit.” (In fact, this five years is often less: under Paragraph IV of the US Patent Act, generic drug makers can challenge such patents after 4 years, and often win).
No one would argue with the “recoup your costs” line. It is with the notion of profit that ethical unease sets in. What kind of profit? How much is too much? Is it okay for the big drug companies to make enough money to pay their high officers multi million dollar salaries? When does another dividend payout trump discounting a drug to the poor?
One shouldn’t feel too sorry for the drug companies, however. One of their more cynical endeavors is what Joseph Stiglitz calls bio-piracy, the routine patenting of traditional medicines and remedies, thereby claiming intellectual “property rights” over the processes and inventions of others, inventions that have hitherto belonged to the people in common.
It’s a truism, but knowledge improves with use. A typical example is China’s adoption of wind technology from Denmark – by using it, they helped improve it, and those improvements funneled back to Europe – everyone benefits. In an example from Rachael Beddoe, “when Indonesia sells a strain of avian flu virus to one corporation rather than let hundreds work on a vaccine, the chance of finding a vaccine decreases. When a corporation patents a vaccine and rations its use to those who can afford it, the pool of uninoculated will be too large to prevent a pandemic.”(This from PNAS, “Overcoming systemic roadblocks to sustainability: The evolutionary redesign of worldviews, institutions, and technologies.”)
Perhaps the simplest remedy is the one the contrarian economist Herman Daly proposed in a speech to the UK Sustainability Commission in 2008: remove all the price barriers to “non-scarce” intellectual capital – including royalties to patent holders – barriers “that often prevent developing countries from accessing the clean technologies critical to sustainable growth.”