handyfloss

Because FLOSS is handy, isn’t it?

Patents, copyrights and double moral

Posted by isilanes on June 15, 2006

What do pharmaceutical, commercial software, film and discographic companies have in common? Well, among other things, fear to piracy. The three of them make products that are first generated at a high cost, but are afterwards trivially replicated. Actually, patents are designed with this into mind. From the Wikipedia entry for patent, one of the four main reasons for patents would be that:

[…] in many industries (especially those with high fixed costs and low marginal costs and low reverse engineering costs – pharmaceuticals and computer software being the two prototyical examples), once an invention exists and has been tested, the cost of actually turning it into a product is typically six times or more the R&D cost. Unless there is some way to prevent copies from competing at the marginal cost of production, companies will not make that productization investment.

Recently I discussed with a friend the recurrent subject of fair use of copyrighted material, and the applicability of the term “piracy” for downloading music and movies from the Internet. We stumbled upon a thorny double moral problem, because my friend would not see any moral or legal problem in downloading copyrighted material from the Internet, while at the same time a patent breach (he actually holds some drug patents) would outrage him!

Justifications for the alleged legality and morality of p2p sharing of copyrighted material abound. You can find out about them in the Justification section of the copyright infrigement entry of the Wikipedia and in the Legal controversy section of the p2p entry of the same source.

Influential bloggers also post in defense of the p2p interchange, and I will mention three Spanish ones: Enrique Dans (e.g. 9-Jun-2006, 3-Jun-2006, 1-Jun-2006), David Bravo (12-Jun-2006, 25-May-2006, 10-Apr-2006), Nacho Escolar (4-Jun-2006, 29-MAy-2006, 22-May-2006, 10-Jun-2004).

Now, one of the main mottos (to which I actually agree), is that the technology has made difussion of culture so easy, that the audiovisual industry has to change its business model, because the present one is obsolete and tyranical with the user, appart from no longer enforceable by the stablishment. Something similar happens to the commercial software industry: the rise of the much more efficient and legally, morally and practically sound, free software (the FLOSS that gives its name to this blog), makes it ridiculous to mantain the 80s and 90s proprietary software model.

However, although criticism to present market models make some of us turn to media licensed under Creative Commons (mainly music), and software licensed under the GPL and other free licenses (like the Debian GNU/Linux operating system or the web browser Firefox), some others feel that downloading copies of commercial of software (Windows, Photoshop, AutoCAD, ChemOffice…), or copyrighted material (music and movies) from p2p networks is somehow OK.

Much could be said about the morality and/or legality of this practice, but, for the sake of the argument, let’s accept it’s legal and moral. Let’s accept that sharing any audiovisual material through a p2p network is fair use, and that any attempt from the lobbies that control these materials to stop it are not only condemned to fail, but also injust.

OK, I can accept that, but… why not apply this to the pharmaceuticals?. What is the difference? A pharmaceutical company makes a big effort to discover new drugs, and then market them if approved by the corresponding autorities. The exclusive marketing of a drug, or a fair compensation when marketed by third parties, is ensured through patents. A patent, according to the Wikipedia, represents:

[…] the exclusive rights granted by a state to a person for a fixed period of time in exchange for the regulated, public disclosure of certain details of a device, method, process or composition of matter (substance) (known as an invention) which is new, inventive, and useful or industrially applicable.

The exclusive right granted to a patentee is the right to prevent others from making, using, selling, offering to sell or importing the claimed invention. The rights given to the patentee do not include the right to make, use, or sell the invention themselves. The patentee may have to comply with other laws and regulations to make use of the claimed invention.

This is very interesting. The researcher (the musician), comes up with a new drug (a new song), and wants to get a just reward for her effort. She patents the drug (puts the song under copyright), which gives here a negative right to ban any other person from even producing the drug (performing the song) without her prior approval.

Usually the researcher (musician) is not directly able to market her invention (distribute her music), and so conveniently hands it down to someone who can, e.g. a pharmaceutical company (a discographic company). They are the ones who make the effort to put it in the market, passing the due approvals (bribing the due radio stations for advertising).

Now, when someone else wants to make use of the publicly available instructions (the publicly available p2p network) to produce the drug (to download, listen and/or perform the song) herself, the patent holder (copyright owner) has the right to prevent her from doing so. The pharmaceutical company (the discographic company) can even choose not to market the drug (the song) at all, if it is not economically advantageous for them. The patent (copyright) allows them to do so.

Now, the parallelism is absolute, and hence I can’t see the difference between the following examples:

a) A kid likes a music group, but can not afford, or does not want to pay for, their CD, so resorts to eMule to download it. Now, no-one can prosecute her, because it is legal.

b) There are thousands in Africa dying of a disease that is not mortal in the first world, because there is a (patented) drug that can cure it. Unfortunately, the Africans of this example, can’t afford the price the pharmaceuticals charge… so tough luck. Now, the Red Cross, or even an African individual, downloads the “recipe” for the drug from the Internet, and starts producing it and giving it away for free. Is it prosecutable?

What is the difference between a) and b)? If the drug could be put online, and downloaded as a piece of music or video, would it be any different? How come the latest Hollywood blockbuster, or MTV hit, are of public interest and hence should be publicly and freely available, regardless of the wishes of the lobbies behind its production, and the drugs that can potentially save millions are not?

For me, that’s a non sequitur.

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