The developments in information and communication technology have spawned various platforms for intellectual property rights infringement. The Internet, for example, has created a virtual world marred with opportunities for infringement – from YouTube to sites hosting blogs, fan fiction and fan subbed video streaming to torrent and peer-to-peer sharing. The Internet has, in a way, given unauthorized control over artistic, literary and scientific work to the masses driving publishing and production companies and creators and holders of intellectual property rights, in general, to a gray legal battle between right and infringement. These legal battles are based on a system of intellectual property laws that has constantly embraced a single fundamental policy even through the passage of time and developments in society. The sole underlying policy behind our current intellectual property laws is to encourage socially and culturally relevant creation by providing incentives to create through guaranteed protection of the creator’s economic interests. These creations are viewed as necessary for the advancement of society. However, this very strict and one-sided intellectual property protection policy may very well hamper the social and cultural development sought by encouraging creation. It creates a commercial and cultural monopoly that limits the social usefulness and cultural relevance of a creation in a world beset with inequalities.
In the TRIPS Agreement, for example, both product and process is patentable. A company can, therefore, acquire a patent for both the end product and process of production effectively preventing its competitor from producing the same or substantially similar product. This has two consequences: (1) Market monopoly which gives price control to the producing company, and (2) A research-intensive policy for the competitor companies which research expenses will be eventually passed on to consumers as part of the product price. Both contemplate a situation where a breakthrough product will be expensively priced when it enters the market. This situation especially pervades in the fields of useful sciences and arts such as medicine and technology. Yes, a public harm is cured or public convenience is achieved, but to what extent? Does it reach every end user for which its conception was originally intended for? Can the poorest nations of the world afford that breakthrough medicine to improve public health? Can they afford that new technology to improve their national economy? Present intellectual property laws seek to protect the inventors and creators specifically to motivate them to produce work that will consequently benefit society. But when this work is produced does it ultimately benefit the communities that need it most?
The same paradox exists for artistic and literary creations. The limits the current intellectual property laws place on the use or distribution of literary and artistic works may curtail the cultural and social growth which these works purportedly promote. The right to create derivative work, for example, belongs to the copyright holder. However, the inclination to alter, restyle or add to a particular body of work does not necessarily come from the author or copyright holder. Such was the case for Alice Randall’s book The Wind Done Gone which was a retelling of Margaret Mitchell’s classic Gone with the Wind from the point of view of the slaves. Certainly, the latter made the former more culturally and socially relevant in terms of understanding history through fiction from the point of view of an alternate class and race. Fan fiction, in the same way, derives from the original work and allows the masses to participate in the creation of culture by altering or adding to the original work. However, fan fiction is, strictly speaking, an unauthorized borrowing of the author’s idea and, therefore, is an infringement of his rights. Even unauthorized distribution of copyrighted work through streaming or file/torrent sharing can be viewed as part of cultural development. When a movie from one country, for example, which would not have been commercially distributed in another country reaches the citizens of the latter through internet file sharing and consequently influences such citizens artistically, there is some cultural enrichment or evolution that results from such unauthorized distribution.
I am not developing a communist theory of intellectual property ownership. My point is that while there is certainly a social value to protecting intellectual creations, there is also a social value in relaxing this protection. Perhaps, it is high time to develop intellectual property law so that it can accommodate the same social intricacies present in property law, e.g. tackling issues of distribution of wealth or individual right versus public welfare. It is, perhaps, timely and apt to introduce the concept of balancing of interests to intellectual property law to account for unequal opportunities to access and use of useful and relevant material.
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