Against Intellectual Monopoly

scope of innovations subject to patent, to extend the length
of copyright, and to impose ever more draconian penalties for intellectual
property violation. Internationally, the United States - as a net exporter of
ideas - has been negotiating dramatic increases in the protection of U.S.
intellectual monopolists as part of free trade agreements; the recent Central
American - Dominican Republic Free Trade Agreement is an outstanding
example of this bad practice.
    There seems to be no end to the list of bad proposals for strengthening
intellectual monopoly. To give a partial list starting with the least significant:
    • Extend the scope of patent to include sports moves and plays.2
    • Extend the scope of copyright to include news clips, press releases, and
so forth.3
    • Allow for patenting of story lines - something the U.S. Patent Office
just did by awarding a patent to Mr. Andrew Knight for his "The
Zombie Stare" invention.4
    • Extend the level of protection copyright offers to databases, along the
lines of the 1996 E.U. Database Directive and the subsequent World
Intellectual Property Organization (WIPO) treaty proposal.5
    • Extend the scope of copyright and patents to the results of scientific
research, including that financed by public funds, something that was
already partially achieved with the Bayh-Dole Act.6
    • Extend the length of copyright in Europe to match that in the United
States - which is most ironic, as the sponsors of the Copyright Term
Extension Act (CTEA) and the Digital Millennium Copyright Act
(DMCA) in the United States claimed they were necessary to match
new and longer European copyright terms.7

    • Extend the set of circumstances in which refusal to license is allowed
and enforced by antitrust authorities. More generally, turn around the
1970s Antitrust Division wisdom that lead to the so-called nine no-no's
to licensing practices. Previous wisdom correctly saw such practices as
anticompetitive restraints of trade in the licensing business. Persistent
and successful lobbying from the beneficiaries of intellectual monopoly
has managed to turn the table around, portraying such monopolistic
practices as necessary or even vital ingredients for a well-functioning
patent licensing market.8
    • Establish, as a relatively recent U.S. Supreme Court ruling in the case
of Verizon v. Trinko did, that legally acquired monopoly power and its
use to charge higher prices not only is admissible but "is an important
element of the free-market system" because "it induces innovation and
economic growth."9
    • Impose legal restrictions on the design of computers, forcing them to
protect intellectual property. 10
    • Make producers of software used in peer-to-peer exchanges directly
liable for any copyright violation carried out with the use of their
software, something that may well be in the making after the Supreme
Court ruling in the Grokster case.I I
    • Allow the patenting of computer software in Europe - this we escaped,
momentarily, due to a sudden spark of rationality by the European
Parliament.12
    • Allow the patenting of any kind of plant variety outside of the United
States where it is already allowed."
    • Allow for generalized patenting of genomic products outside of the
United States where it is already allowed.14
    • Force other countries, especially developing countries, to impose the
same draconian intellectual property laws as the United States, the
European Union, and Japan.'5
    All of these are bad ideas - why they are bad should be self-evident by now -
and all should be rejected.
    Developing countries in particular should be wary of negotiating away
their intellectual freedom in exchange for greater access to U.S. and EU
markets. Developing countries are, slowly but surely, giving in to U.S. and
EU pressure and modifying their national legislation in accordance with
the requirements imposed by TRIPS and the WIPO. This is partly the effect
of sheer lobbying and political pressure by Western governments and large multinationals. Partly, this is also due to the lack of a workable and coherent
alternative to the overreaching redesign of world intellectual property rights
underlying TRIPS and its ideology. This makes an open and critical debate
on such themes in developing countries even more urgent and valuable than
it would be in any case.

The Good
    There are a great many things that can be done to make modest improvements in