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IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are…

How can we best reward creators and those who benefit from their creations? 917press

IDEAS AND OWNERSHIP: The concept of protecting ideas and innovation by legal means dates back to antiquity. But in the age of the internet and multinational business models, many of the existing laws are under strain, their suitability and ultimate purpose called into question.

Bruce Arnold kicks off a new series on The Conversation looking at where we are, where we were and where we’re going with regards to patents, copyright, trademarks and IP.

It’s become a cliché that most Australians are part of an information society or information economy. In fact, we’re all part of an intellectual property society. Intellectual property (IP) affects what we consume and what we create. It also affects when we’re born and when we die, given modern medicine is founded on pharmaceuticals and devices that are encouraged by intellectual property law.

This article offers a snapshot, quick and irreverent, of what IP is, why it’s controversial, and the difference between some key terms.

In essence, IP law provides rights owners with the power to stop unauthorised copying. That power is for a finite period of years. At the end of the period (which can be as little as five years) the owners’ rights evaporate.

IP involves a tension between society’s respect for individuals as creators, incentives for investment (getting a life-saving drug into the market costs hundreds of millions of dollars) and the benefits for both individual consumers and society resulting from easy access to innovation.

Put simply, we want to encourage our authors, artists and researchers to produce good things (and to make money for investors such as the superannuation funds that will pay for our old age). We also don’t want to lock up creativity so that it’s too expensive or too secret for all of us to benefit from sharing.

Australia’s part of a global economy, so we also need to comply with international agreements, some of which (contrary to mythology) place public health over the rights of multinational tobacco companies.

Some people disagree about the balance; others simply assert we can disregard IP in the hope that people will play nicely.

Copyright

Everyone is a creator when they write a letter or an email, take a photo, post a blog or do a sketch to amuse the kids. The good news is that their creativity’s protected by the Copyright Act 1968. The bad news is that there’s a commercial difference between my scribble and a masterpiece by David Malouf or Peter Porter, your sketch and a Rothko canvas.

The good news is that, irrespective of commercial rewards, copyright law protects all, offers an incentive for creativity by all. The same law allows non-commercial copying by scholars, journalists and others, balancing individual and community interests.

Copyright encompasses music, film, broadcasts, text, software, architecture and the graphic arts. It’s different to trademarks, patents and designs.

We are immersed in trademarks, signs that function as indicators of quality and of the consumer’s taste or affinity. Trademark owners can use the Trade Marks Act 1995 to stop a competitor from using their sign to falsely identify a product of service.

That sign might be words, or a logo (the McDonald’s “Golden Arches” and other icons damned by Naomi Klein). It might be a unique sound (the “Dolmio Waltz” or “Ah McCain” ding). It could even be a scent that uniquely identifies a particular product.

Trademarks and patents

Trademarks represent the most in-your-face aspect of contemporary capitalism. They also indicate trust and safety. It matters if your medication is really from Pfizer (with an authentic mark) or a concoction of rat faeces and plaster that uses a counterfeit mark.

Patents – the most contentious form of IP for many academics – protect inventions. The inventions covered by the Patents Act 1990 include car parts, pharmaceuticals, toys, devices such as the iPad, paints, ploughs and even business methods.

Some of those inventions are trivial and soon forgotten. Others are fundamental and deservedly provide the inventor and investors with large rewards. Think of MRI scanners and stents in medicine, ABS brakes on cars, the chips found in most electronic devices.

Patent law deals with invention, not discovery. It is concerned with originality. After a maximum of 25 years the protection ceases: anyone is free to copy the invention (piggyback on the inventor’s creativity and hard work) without payment or permission.

As with copyright, patent law involves a balance between respect, incentives and social needs. It is contentious because some people consider the balance is overly weighted towards large corporate interests.

Examples of this would be pharmaceuticals being too expensive, speculators engaging in “patent trolling” or the traditional knowledge of indigenous peoples being appropriated through biocolonialism . Others respond that the problem is with global economic disparities rather than patents per se.

Looks matter

Not all IP is about billions or biopolitics. Ever sighed over a Fink jug or a “to-die-for” textile? Copyright law coexists with the Designs Act 2003, which gives designers short (five years) protection regarding the appearance of a manufactured product.

That appearance might be shape – the sensuous curves of a jug – or it might be the pattern of a textile (Marimekko or Ken Done).

What if you develop a blue rose, a crispy lettuce, disease-resistant wheat, an extraordinarily tasty melon or a fast-growing tree? Your innovation – again potentially involving major investment, effort, skills and frustration – can gain short-term protection through the Plant Breeders’ Rights Act 1994. Other similarly specialised law protects creativity such as the layout of computer chips.

IP is ultimately about power, money, innovation and regard for individuals who struggle to add to the sum of knowledge and cultures. Academia needs to make decisions about its own IP on an informed rather than emotive basis, and work with other interests in developing equitable law and practice.

IP is not just something that belongs to the vice-chancellor or Bill Gates: it’s about us.

Further articles in this series will be published on The Conversation in the coming week.

Join the conversation

13 Comments sorted by

  1. Richard Todd

    IT Support

    In many ways it is not the philosophical basis of copyright that I object to, it is the sheer length of time it runs for. 75 years or longer! Three generations by the old counting. How is that doing anything apart from proping up company profits.

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  2. Derek Bolton

    Retired s/w engineer

    Good discussion to initiate, thanks. 3 points:

    1. "Patent law deals with invention, not discovery."
    That's what I always thought - you cannot patent facts. (Despite a US state once trying to patent a simplified value for pi.)
    So how come patenting of gene sequences was ever allowed?

    I could understand patenting the method by which the sequence was determined, or specific modifications to the sequence to achieve certain results, or drugs derived from the new understanding, - but the sequence…

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    1. Jens Tampe

      Deputy Director, Griffith Enterprise

      In reply to Derek Bolton

      Historically, composition of matter patents on genes were allowed because DNA is considered being a chemical substance as any other chemical substance. By identifying the constituents and structure (chemical: structural formula; DNA: sequence) an inventor allows anyone to reproduce it. As in the early days sequences were new (no one ever had sequenced a given gene before) and inventive (it was hard to clone, sequence and then assemble full gene sequences), patents were reaonably grantedcon gene sequences…

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  3. tqft

    logged in via Twitter

    Other problems with patents - software patents & ever-greening of patents.

    Software is mathematics so no sane patent system should allow software patents, cf the USA. Europe is also alternating rejecting software patents & having them introduced through a different mechanism.

    "Ever-greening". Nominally patents expire after a fixed period of time. What if you tweaked it slightly & got another 25 years - people still couldn't use the original "invention" for free.
    http://blogs.crikey.com.au/croakey/2011/09/01/new-trade-agreement-threatens-australias-laws-on-medicines-and-tobacco/
    "The pharmaceutical companies are also lobbying for elimination of Australian safeguards against patent abuse and “ever-greening” which Parliament inserted at the time of the Australia-US Free Trade Agreement in 2004."

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    1. Derek Bolton

      Retired s/w engineer

      In reply to tqft

      I can't agree that s/w is maths. S/w is a procedure, just like a manufacturing procedure. Its validity may be underpinned by maths, just as an industrial process or device may be underpinned by science.

      Agree completely about evergreening. Why isn't only the tweak covered?

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    2. Derek Bolton

      Retired s/w engineer

      In reply to tqft

      I read the simpler version and, to be honest, it reads like something in green ink, uppercase, with much underscoring and many exclamation marks.
      I suspect his error is buried in this statement:

      "Mathematical language may be used to solve problems by means of manipulations of symbols called computations. The procedures for carrying out the computations are called algorithms. Algorithms are used to reason about problems and deduce new truths from known truths by applying principles of mathematics…

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    3. Con Zymaris

      Untethered Polymath

      In reply to Derek Bolton

      While the question of whether 'software is mathematics' is one that can be debated, the understanding that software idea patents introduce unique and special problems into the enterprise of software construction, as compared to say the impact that patents of physical objects have on engineering, cannot really be debated.

      To understand more, read this:

      http://www.gnu.org/philosophy/software-patents.html

      -- Con

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  4. Michael Romano

    Senior Systems Engineer

    Richard, I agree that 75 years is too long. The world moves much faster now and will keep moving faster in the future. There has to be a mechanism which allows for adjustments in the length of patents.

    Wealthy countries are also using patents to defend their economic interests against smaller and weaker countries. The end result is a world with a larger divide between the rich and poorer nations. Ultimately, we're all poorer for it.

    Free trade agreements are usually anything but and I feel that Australia has sold the farm to the USA when it comes to IP via our free trade agreement.

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  5. WhyNotAskMe

    logged in via Twitter

    The problem with copyrights begins with corruption of the legislative process in the USA, and from there is exported all over the world. Countries such as Canada, Australia, and New Zealand are especially vulnerable to pressure from the USA and their corporate lobbies.

    Please read our manifesto on our website: http://whynotaskme.org/

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  6. Joseph Bernard

    Director

    with a history of 30 years in software development, sorry but software is far more complex than a simple or even complex mathematical algorithm. The Article in the link above takes the complex and makes it almost impossible to understand.

    Software is far more than just the letters of the ascii key board and just as authors take the letters of the alphabet to create a great epic work, so to you will find that software follows a story line with a beginning and an end. When we examine publications…

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