Trade and Industry’s myopic proposals can harm economy
While the term “intellectual property law” as a legal concept is commonly bandied about, what it protects and seeks to promote is often misunderstood. Intellectual property is subjected to sustained criticism and even treated with hostility.
The negative views about intellectual property could damage the economy and growth prospects considerably.
Based on the proposed changes to laws and draft policies from the Department of Trade and Industry over the past few years, it appears the department may have been influenced by people who express these troubling views. The department should be mindful that those who aim to dilute the rights that intellectual property law provides may be more interested in pursuing their own interests than in improving society.
The intangible nature of intellectual property, such as copyright or patents, makes it necessary to provide legal protection. Because society is enriched by innovative products and works of literature, art or music it is considered socially beneficial to incentivise the creation of these things. Recognising property rights in these products gives their creators the opportunity — not a guarantee — to earn a return on their investment of effort and other resources. Intellectual property rights are not some form of El Dorado, promising the rights holders untold wealth.
While there may be many reasons why people create things that may be protectable by intellectual property law, the recognition of property rights is a powerful device: it serves as an incentive for marginal innovation, which yields socially beneficial creations.
People who criticise intellectual property law are apt to resort to sweeping generalisations about the unacceptable social costs of intellectual property protection.
A better general solution to incentivising innovation and creativity that benefit societies has, however, not been found.
Law is a human construct and, like its creators, is not perfect. In almost every area of law there may be situations that give rise to a seemingly inequitable result; not every grievance or matter of concern means there is a neat, ready-made legal solution, but neither does it mean the law has failed.
USER RIGHTS
Some examples of the department’s proposals that are of concern are the proposed amendments to copyright law that seek to provide for socalled “user rights”, and the broad exceptions for educational purposes, that would dilute the rights of copyright owners.
While these proposals may seem progressive things to do, they are potentially destructive of what copyright protection seeks to achieve.
The main beneficiaries of user rights will be some of the biggest technology companies, such as Google or YouTube, which have been agitating for these changes.
If these proposals are implemented, copyright owners — particularly those in Africa — will be forced to live off the crumbs the likes of YouTube deem fit to dole out to them.
The focus of the department’s Draft Intellectual Property Policy is the patent system. Without any convincing supporting evidence, the draft claims that the country’s patent system, because it does not provide for substantive examination, is an obstacle to public health.
It is said there are too many invalid pharmaceutical patents, that prevent access to medicine. This conclusion is surprising. Given the competition in the pharmaceutical industry, if there is a problem of invalid pharmaceutical patents, there would be a significant number of litigation cases, but there are none.
Questions about public health or education, and intellectual property’s effect, are not a “one-shot game”. If measures that harm intellectual property protection and the incentives they provide are implemented there are possible consequences in the long term.
While it is tempting to make an emotive case for access to particular medicines, it is worthwhile considering that it is only because the medicines exist that there can be demands for access.
The proprietary rights that are afforded by patents serve to incentivise future innovation.
Undermining property rights to gain access to existing patentprotected products is shortsighted because it will deter future innovation.
While SA, a developing economy, may need to formulate a bespoke intellectual property policy, no cogent reason exists for the far-reaching, and potentially damaging proposals being pursued by the department.
A good rule of thumb to determine whether legislative proposals are desirable is to ask what their likely effect will be on the incentives that intellectual property law seeks to provide people to create the types of things protected by law.
The country’s focus should be on building a legal system that stimulates economic growth and prosperity for all, rather than this country adopting the role of the perennial victim of the exploitative conduct of others.