Science, technology and intellectual property

Science and technology provide many social benefits, such as improved economic growth or quality of life. They can also produce unwanted negative consequences. Most societies promote science and technology, but this can be costly. The establishment of IPRs that protect new works and give innovators the right to benefit from their creations provides incentives for costly innovation without the need for direct government subsidies (Posner 2004). At the same time, IPRs can maintain or exacerbate wealth inequalities.

Rights have little meaning unless they can be enforced, and modern technology has made enforcement of intellectual property rights increasingly difficult. Photocopiers make it possible for anyone with access to a machine to reproduce works entitled to copyright protection, and the Internet allows anyone to make literary or musical works available to the world.

Science and technology challenge intellectual property systems, particularly patent laws. New fields such as information technology and genetic engineering force the courts to decide how to apply the laws enacted before such technologies were contemplated. As knowledge itself becomes more valuable, individuals and institutions seek additional protection to control knowledge and its earnings. At the same time, society has a growing need to access some types of knowledge and protect itself from the use of others.

Abstract ideas cannot be patented, but their applications may qualify for patent protection. For example, “Einstein could not patent his famous law that E MC2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of nature, free for all men and reserved exclusively for no one.” (Diamond v. Chakrabarty, p. 309, citing Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 US 127, 130, 1948). General ideas remain in the public domain, but their applications can be privatized through the patenting process.

Biotechnology, perhaps more than any other field, has challenged courts and legislators to reconsider intellectual property laws. In 1972, Ananda Chakrabarty, a microbiologist, applied for a US patent for a genetically modified bacterium. The US Patent Office rejected the application because bacteria are products of nature and living things cannot be patented under US law. The case was appealed and eventually reached the US Supreme Court. The Court reaffirmed the principle that natural phenomena cannot be patented, but found that the Chakrabarty bacterium was “a product of human ingenuity” and was therefore patentable under US law.

So many biotech patents have been issued for such small innovations that some fear creating an anti-commons tragedy in which new innovations involve so many existing patents that innovation is discouraged. At least one study has found that anti-commons are not yet a significant impediment to innovation, but that the situation needs to be monitored.

Intellectual property rights can be attached to writings or products considered dangerous or immoral, and intellectual property rights tend to legitimize such works by involving social approval. Societies must decide whether to provide protection for harmful or objectionable work. New technologies, particularly those that create or reproduce life, often spark a debate over whether work should be done at all, much less protected by law. IPRs also establish ownership of certain innovations, which can help determine liability if a product causes harm. This raises questions about whether innovators should be held accountable for their products, especially when the products are used unintentionally.

Public funding of science and technology further complicates intellectual property problems. Who should benefit from works developed with public funding, the creator or the public? Which balance of public / private benefits best serves society’s goals?

Academics build their reputations by producing intellectual works. They seek recognition for their achievements, control over any financial gain, and protection against plagiarism. IPRs promote the disclosure of information to the public by guaranteeing the author the protection of the work, even after it is made public. Intellectual property rights protect authors from possible appropriation of ideas by others, including reviewers, before the work is actually published.

Ownership can be a major issue for intellectual property rights. Who owns the collaborative work product? When is the contribution of a supervisor, graduate student, or coworker worthy of co-authorship? When the creator works for a corporation or university, does ownership lie with the creator or the institution? What about funding agencies? In many cases, ownership or authorship is established by disciplinary customs or by agreements between the parties (Kennedy 1997).

Plagiarism is professionally unacceptable and sometimes illegal, but time is of the essence in determining whether plagiarism has occurred. According to Donald Kennedy, “Taking someone else’s idea and using it before it is placed in the public domain is a form of theft … [t]”Making more use of someone else’s idea after it has been published is erudition” (1997, p. 212). Of course, attribution is fundamental even, or especially, in scholarship, regardless of whether a work is protected or not.