Experts: Intellectual Property Policy Not A Traditional Left-Right Political Issue

BRUSSELS – Intellectual property policy may not be divided along left-right political party lines, participants in a consumer-led conference here on the politics and ideology of intellectual property concluded yesterday.

On 20 March one of the debates on intellectual property and advocacy centred around software and patents. The two-day event is hosted by the Trans Atlantic Consumer Dialogue, a consultative forum of 65 consumer organisations from the European Union and United States. There are 70-100 participants including civil society groups, industry, academics and others (IPW, Access to Knowledge, 20 March 2006).

Sharon Bowles, a member of the European Parliament, talked about her experience in negotiating the software patent directive, which after a five-year debate was voted down last summer. She explained that methods have always been patentable but as software “as such” was not patentable in Europe, it was not clear what “as such” meant, and litigation was different in different countries.

Florian Müller, founder of NoSoftwarePatents.com, said that many assumed that people like him are the guys who “do not want to make money on what they invent.” But he pointed out that he has made a living from intellectual property by writing articles and publishing books that are copyrighted, and he has developed software.

That this is an “anti-IP movement” is thus a myth and is wrong, Müller said, adding that some people may have a broader agenda, but “I am very much pro-IP.”

Müller also talked about his experience with the EU software directive, saying that during the summer of 2004 a German questionnaire on software and patents sent to companies attracted 1,400 replies. But as the German government favoured software patents, the replies had not been analysed, he said.

Müller had then asked to review the answers, arguing that a partial review is better than no review, and found that while only about 30 replies related to free software movements, 98 percent of the companies were against software patents, he said.

Jonathan Zuck of the Association for Competitive Technology said he wants to start a positive campaign called “access to protection” for small and medium-sized enterprises, referring to discussions earlier during the day on the importance of rhetoric.

James Love, director of the Consumer Project on Technology, asked whether there should be different patents for software and medicines and questioned what he called a “religious belief in the patent system.” Love also asked what the prospects were for countries with low income to manage patent systems with software.

Zuck said that whenever a lot of people want access to products that are patented, a debate about the IP system occurs, noting that products such as the sewing machine and agricultural tools generated similar debates in the past.

IP Policy Left or Right?

One of the underlying philosophical questions of the global IP debate that the conference is shedding light on is whether the debate may be divided into a left-right political issue. This is not the case, the moderator of one session concluded.

Bruce Lehman of the Washington-based Akin Gump, Strauss Hauer & Feld agreed, using the software directive as an example as it had been supported by people from the Green Party as well as conservative People’s Party.

Declan McCullagh of CNET news service said that IP policy was indeed partisan in political terms, referring to digital copyrights in the US in particular. He showed how the entertainment industry gave money to the Democrats and not the Republicans. Morever, three of four heads of associations such as the Recording Industry Association of America are Democrats (except Chairman and CEO Mitch Bainwol). Zuck disagreed, saying it was an issue of correlation versus causation and that Hollywood artists just tend to be Democrats.

Lehman also said that in 1982, only IBM filed software patents as Microsoft was still in its infancy. He said it is difficult to see how the US software IP policy has been a mistake as “tremendous economic growth” has been “unleashed.” IP-based jobs have substituted the lost manufacturing jobs, Lehman said. “Our IP policy has been incredibly effective,” he said.

But the World Trade Organization Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), in whose creation Lehman was involved, has been a “huge failure for the US,” he said. Lehman charged that while the US has kept its part of the bargain in terms of market access, the advanced developing countries have not.

Rufus Pollock of the Foundation for a Free Information Infrastructure (United Kingdom) said that IP policy is not divided along political party lines, noting that when the software directive was discussed there were cross-political splits even at the national level.

Instead, he said, intellectual property may be divided into roughly two camps: the rights holders and the general public, which both benefits from new work but also bears the cost and thus is the only group that has a balanced view. The problem, according to Pollock, is that the general public is poorly organised and poorly concentrated, as opposed to industry.

Pollock pointed out that 10-15 years ago when the TRIPS agreement was being discussed there was no public concern with intellectual property rights. But this is now starting to grow, and in 40 years, Pollock predicted, there will be an equivalent IP movement much as there is in the environment sector today with groups such as Greenpeace and Friends of the Earth. This would create “a far better balance” and “only be a good thing for all,” Pollock said.

Another view was offered by John Howkins of the Adelphi Charter, an initiative urging governments to change the global intellectual property scheme which they argue has shifted too much toward private interests at the expense of the public (IPW, IP Policies, 19 October 2005). Howkins talked about “political or government ignorance” when it comes to intellectual property. He said many politicians could not answer the question on what their country’s IP policy was in terms of objective and purpose, or whether it would be good for their countries to have an IP policy. Brazil, however, was very clear as it wants poverty reduction, he said.

Howkins used two examples of politicians’ lack of knowledge in the area. First, the proposed treaty on broadcasters’ rights under negotiation at the World Intellectual Property Organization, under which the provider of a webcast requires some rights to the film, he said. Howkins argued that if asked whether this treaty is good or bad, “no politician would know where to begin.”

Second, Howkins talked about the free trade agreements and referred to a 2004 study examining 109 bilateral agreements. The study found that the United States would earn $112 trillion over the next 15 years from these agreements while developing countries would lose $21 trillion, figures that he believes most ministers negotiating the agreements are unaware of.

The discussion also focused on access to medicines. David Hammerstein, a member of the European Parliament, said that the number of new medicines being developed is declining with only “me-too” medicines coming onto the market, which are medicines with small changes from existing ones often targeting a small group of patients at a high price. He said for the vast majority of people and diseases worldwide medicines are not being produced.

Lehman, who served in the Clinton administration, accused the Bush administration of a “total incompetency in executing its policy,” but he gave it credit for giving money in order to implement international agreements on access to medicines, which he said the Europeans have not done. The real issue now, he said, is to implement these agreements and “deliver antiretroviral medicines to people in need in developing countries.”

The supply of Roche’s anti-influenza drug, Tamiflu (oseltamivir) also was discussed. Lehman said that it is “just a fact” that if Roche is not able to provide a sufficient supply of Tamiflu and there is a need, a compulsory license will be issued in the United States “no matter who is president.” This, he said, also shows how IP policy is not political.

Some participants discussed the need for “respecting IP,” but Pollock said that he does not respect IP in the same way he does not respect his hammer or any other tool, and argued that this was a false analogy with property.

One participant pointed out that at the Group of Eight industrialised nations meeting in Germany next year, German Chancellor Angela Merkel has said she wants to make intellectual property a key point.