© The Author (2008). Published by Oxford University Press. All rights reserved
Editorial |
Good stuff, shame about the bad press
A poll of readers of this journal would probably indicate a high level of support for the principle that IP should be protected; an awareness of its role in the development and exploitation of new products and services; a belief in its inherent fairness in balancing the moral and economic needs of its owners and their competitors; and a conviction that IP was a positive force for the betterment of the world we presently share.
These opinions are almost certainly not shared by the wider community of consumers, businesses, economists, legislators, and policy-shapers. At the highest level, there are those who no longer believe that all property is theft but appear to make an exception for IP. Since every newly created work builds upon the words, the thoughts, the ideas, and the knowledge created by countless others in their furtherance of humanity, any attempt to ring-fence an item of IP, and exclude others from it is an attempt to misappropriate part of the common intellectual heritage of mankind. Since knowledge and information can be shared with others without depriving oneself of them, there is no loss to oneself if such an act of sharing takes place.
At a lower level, there are those who accept the existence of IP rights, but reserve their criticisms and their hostility for specific manifestations of it: the enforcement of copyright against large-scale private copyists, the use of trade mark rights to carve up markets so that genuine goods cannot be imported from a country where they are sold cheaply for resale in another country where they fetch a better price; the theft of traditional knowledge and culture which is then repackaged as copyright- or patent-protected property; the patrolling of industry by unproductive patent trolls, intent upon securing a rent where they create no value; death by patent monopoly for millions in the developing world who, in the unlikely event that they can even access vital medicines, cannot afford them. To the IP professional and his clients, this list can appear depressingly endless.
Given this context, a recent initiative taken by the Intellectual Property Institute (IPI), based in London, with the support of the US Patent and Trademark Office and the UK Intellectual Property Office, deserves mention. The IPI has commissioned Dr Roya Ghafele, formerly of WIPO and currently a research scholar at Berkeley, to pilot a socio-linguistic study into IP discourse, looking at how people use terminology when discussing IP-related issues and then considering how their choice of vocabulary—particularly metaphor—shapes their views and ultimately their conduct.
At the time of writing, the IPI project is still very much in the category of ‘work in progress’. The preliminary findings are, as one might expect, that the use of terminology such as ‘piracy’, ‘troll’, ‘theft’, ‘freedom’, and ‘access’ both colour and are coloured by the attitudes taken or learned by those who use them. However, the extent and nature of their use is now being made clear. Few readers of this journal would assume, in the absence of clear evidence, that disciplines such as Gender Studies invoke IP issues the way they do. For example patent rights, by limiting the ability of the mother in the developing country to gain access to necessary seed, is a ‘male’ impingement on her role in feeding her children. Or try this: the technology-rich developed country performs the active masculine role, whereas the technology-deficient developing country fulfils the female role of the passive recipient.
The preliminary study also shows how the pro- and anti-IP lobbies employ the same vocabularies against one other, in different spheres. Thus, the copyright and entertainment industries accuse those who take and use their products of piracy—precisely the same term which is used in the context of bio-piracy, the alleged practice of stealing naturally occurring products and rebadging them as patentable ones.
This study makes one thing quite clear: attitudes toward IP rights focus principally upon their negative qualities and do not connect them with that which is positive. Thus, new medicines save lives, while patents kill; music is cool, while copyright is a clamp; brands are brilliant, while trade marks are tools of trade manipulation. It is too much to hope that the public at large will wake up one morning, enlightened at the beneficial, positive, and above all necessary role played by IP rights, but we can at least aspire to teach that, between that which they praise and that which they condemn, there is a powerful causative connection.
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