Intellectual Property Rights were negotiated and successfully approved in 1986 at the Uruguay Round under the able and comprehensive leadership of the general agreement on Tariffs and Trade. This body of law had and has had profound effects and repercussions in the overall implementation and consequential results in the entire world. In accordance with the 1986 agreements, it was granted that intellectual property rights shall be respected and observed by all member states. In addition, the developing countries were granted a reprieve through an extension to commence respecting the stringent intellectual property rights no later than 2005. In the same breadth, a grace period of the same nature was granted in relation to protection of patents to least developed countries of up to 2013, while pharmaceutical patents were extended to 2016 for the latter category of countries. This worldwide concession and agreement meant that, by and large, the body of intellectual property would be respected and adhered to by all countries who were members of the progressive World Trade Organization. This has occasioned a number of ethical and social implications as countries grapple with implementation challenges and consequences. This paper will discuss the ethical and social implications and assume the perspective that prefers a relaxed approach to implementation premised on the overall interests of society.
Ethical and Social Implications of Intellectual Property Rights
Intellectual property rights have the effect of protecting the intellectual works of persons from being copied, used without his consent and developed upon without prior permission. The spirit of these rights is to protect knowledge and encourage research through the promotion of those people who come up with ideas. Looking at the body of intellectual property rights, one appreciates its approach and agrees that it intends to grant favours to the innovator. The spirit is in the need to spur innovation and creative especially in the academic and scientific context. In addition, modern economics predicated on a capitalist society entertains every thought that contributes to economic individual accumulation under the domain of a free market. In that context, the law of intellectual property has been designed to encourage a regime that accumulates economic benefits to the property rights owner. However, even with this economic approach, it is important for the law to appreciate the social, economic, ethical and political repercussions. The law must not be silent and blind to the ethical and social implications of the property rights regime. One notes the appreciation and the spirit of the law manifested in the extended deadlines to the developing and the least developed countries, among other exemptions. The spirit of the law is to work in consonance with the economic and social factors that are in play in these countries. The myriad of social and ethical concerns that have arisen perhaps shed light that cast aspersions of the pragmatism of the deadlines that the Uruguay Round set. It reminds the world of the zealous and impractical approach often pursued in the setting of international law and its attendant conventions and agreements. Another set of laws that show an impractical approach in setting international law could be seen in the Kyoto Protocol in carbon and greenhouse gases emission. However, the scope of this paper shall be the analysis of the ethical and social implications of the Intellectual Property Rights law. It is the contention of this paper that law is impractical and unappreciative of the operating conditions in the developing and least developed countries. It, therefore, exposes the selfish approach often pursued by the international community in the drafting and adoption of conventions and agreements. It is the contention of this paper that the law cannot be administered and interpreted in isolation. More so, it is the position of this paper that the intellectual property rights law was progressive in nature and, therefore, limited to the rule of engagement that guide the implementation of laws and their attendant progressive realization. In that vein, the paper regrets the occurrences where multinationals of origin and establishment in developed countries continue to harass and prosecute government and citizens who do not observe the patent rights and regulations granted under the Uruguay Round agreement. A case in point which shall be discussed in substance in the paper is the Monsanto seed company case in the United States of America. In addition, the paper advocates for the practical assumption and realization of the intellectual property rights in the interests of the overall aspirations and needs of society. Where the societal interests act in opposition to the individual interests, the precedence should be conferred to the society who represents the majority. This argument is predicated on Kant’s philosophy of satisfying the majority’s interests and sacrificing the interests of the minority. This approach has at times succeeded in defending societal interests in the intellectual property melee. However, cases like Monsanto have come out to show the misleading jurisprudence pursued by the law in defence of individual interested over societal interests. It is this paper’s contention that such occurrences lead in substance to ethical and social ramifications that not only justify frustration of the capitalist system, and the stability of systems, but also ends up to occasion loss of lives and economic disparities between the developing and least developed countries on one side and the developed countries on the other sides. This occurrence only worsens the plight of the developed countries which have often decried the original sin visited upon them through the colonization of their lands in earlier centuries and currently the neo-colonial occurrences where developed world approach issues with a dictatorial attitude.
In another twist, the intellectual property law regime should be assessed with regards to the contributions to the law by Michael Heller in his treatise on the tragedy of the Anti-Commons. Heller rightly asserted that the restrictive approach to the use of property lead to a limited application whose long term consequence was the under-utility of the property. It was Heller’s assertion that the law ought to be tailored in the interest of mankind. In that regard, it was folly for the law to be designed in a way that was detrimental to humanity. This occurrence can be related to the effects of intellectual property rights which have assumed ethical and social undercurrents. While Heller’s illustration was the kiosks in Moscow, in the intellectual property legal regime the subject of the tragedy mainly resonates around pharmaceuticals and agricultural products. The example that would be used illustratively involves seeds which qualify under agricultural property. This discourse, therefore, breadths back to life the tragedy of the Anti-Commons and compels society to re-examine the body of the law in relation to the observations by Heller.
Working on that premise, it is now possible to consider ethical and social ramifications attributable to the intellectual property rights. One outstanding consequence of the law which has been seen in the implementation is its facilitation of a continuous economic exploitation. Though the proponents of the intellectual property rights would rightly argue that products are being sold on the premise of a free market that envisions a willing buyer willing seller situation, it should be appreciated that the nature of the products in question do not entertain the willing seller willing buyer. Rather, the essence and the importance of the products compel the buyers in buying the products thereby frustrating the willing seller willing buyer concept. This has occasioned a scenario where the buyers have no option but to rely on the monopoly system. In its attempts to address this concern, countries have attempted to obtain patents use rights from holders of the patents. These cases have been more adverse in the pharmaceutical and agricultural industries. The use of medication and the agricultural products such as seeds and fertilisers has been essential and inevitable. In a bid to cut down on the overall costs, governments and industrialists particularly in the developing world have tried to gain permission to use the patents to produce products for their local markets. This production it has been envisioned would be cheaper and hence commute to lower pricing for consumers who need of the products. However, their efforts have been met with resistance from multinationals owning the patents which deliberate deny them usage rights. The denial is motivated by the desire to control the market and remain as the sole suppliers of the product and hence enjoy the benefits of monopolies. These multinationals have resorted to using the intellectual property rights regime that confers on them the patent rights. In addition, some of the companies have employed more ethical approaches but which retain the capitalist face of exploitation. One of these approaches entails imposing high patent usage fees to the extent that production becomes unprofitable or more costly than exporting from the multinationals. This scenario has occasioned a number of ethical and social repercussions.
For starters, the position has facilitated the wanton exploitation by multinationals of the developing countries. The huge and discouraging patents fees imposed have only facilitated the continual reliance by these countries on the supply by the multinationals at the terms and conditions of the latter. This has been exploitative and consequently lead to a rebellious feeling among the developing nations. This should be read in connect with the economic stratification of most developing nations. The citizenry is largely concentrated in the lower class and the overall gross domestic product is low. With these products remaining essential and a necessary component of their daily menus, it has led to a litany of social issues. One that can be cited is that poverty levels have either been maintained or increased as the disposable incomes are lost on the products. In addition, a direct bearing on crime, substance and alcohol abuse can be obtained from the economic deprivation. An ethical concern that lies directly on the multinationals is the attendant exploitative tendency. In other words, intellectual property rights have been used to perpetuate a culture of irresponsible capitalism. What this has caused is the ethical erosion of the companies. This disregard of ethical concerns has been fuelled partly by the competitive global system where countries are struggling to position themselves at the top economically without regard to ethical nobles.
Secondly, the intellectual property regime has occasioned a slap on the innovation capacities of the developing world. These countries due to their lower economic abilities have not been able to afford the patent utility fees. Consequently, their research has been fundamentally limited to only the intellectual property that is within the public domain which in many cases often has little value in research works. What this has perpetuated is an intellectual bankruptcy of the developing countries. In the same vein, it has facilitated a continuous reliance on the innovations from the developing world. This too has come with heavy ethical and social repercussions. It has promoted the stereotypical assertions that certain races are inferior and that certain races are more intelligent than others. The social impact of these can be seen in racial conflict and the continued wars in the international context. To stretch the situation further, in some nations it has been used to justify support or sympathy for terrorists’ activities visited on some of the developed countries. In addition, the global economic stratification resultant partly due to the intellectual property regime has occasioned a general struggle for power in the overall world political landscape. This can be seen in instances such as the making of nuclear weaponry and the proliferation in arms manufacturing and utility. The effects have at times boiled down even into bloody affairs. One would believe that a contrary approach would solve the economic and social issues and reduce the attendant fatal consequences.
In the Monsanto case, a farmer was compelled not to use in commercial ways the products of flower seeds that had veered from a farm into his. The interpretation of the court was that since the seed variety was patented, the farmer could not employ any uses of the exploits from the seed in a commercial manner without the consent of the patent owner. This interpretation represents the trajectory that has been occasioned by the body of intellectual property law as agreed and settled by the Uruguay Round. It should be appreciated that the law was not only impractical in the sense that the seeds had found their way into the farmer’s land through natural processes that cannot be prevented. In the same vein, the farmer could not make any alternative use of the product other than for commercial gains.
It is the position of this paper that the body of intellectual property laws has a positive spirit to entrench order and support innovation. However, it needs to be applied in a pragmatic manner that is appreciative of the overall ethical and social repercussion and that endeavours to improve the political, economic and social conditions prevalent in the world. This would be in appreciation of the fact that the law cannot be applied in isolation. In addition, the progressive nature of the law was in appreciation of the underlying assumptions and events prevalent especially in the developing countries. It is, therefore, inconsiderate and an affront to the law to enforce intellectual property rights in a manner disadvantageous to the developing countries and their citizenry.
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