Copyright Protection and the Public Interest

Oct 07, 2012 Features / Columnists, Peeping Tom

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Copyright protection was designed for capitalism. It emerged in the wake of the industrial revolution. In this period, patents assumed greater importance and the capitalists saw the need to prevent others from benefitting from “creations” without the expressed consent of the “creators”.
In the early years, copyright protection led some “creators” to monopolize the market and earn far beyond their investment into the actual creation.
This fact debunks the justification that has often been made that copyright protection is needed to ensure that creators of intellectual property are not deprived of recouping their investments.
Copyright protection goes beyond protecting creators from being deprived of a fair return. In fact an inventor or a creator of a product today expects not just to be fairly rewarded but to become super rich overnight. The development of an operating system, for example, virtually guarantees its creator riches that he or she or their descendants can never outlast. Copyright protection has therefore become a tool that promotes private gain way beyond what is fair.
Intellectual property has also gone beyond mere regulatory purposes. It is now a weapon in the hands of persons and can allow them to benefit beyond their wildest expectations. You can become rich overnight simply because one day you had this idea and acted upon this idea.
Those who have reservations against copyright protection are not opposed to inventors and intellectual creators profiting from their creations. They are opposed to them profiting excessively, exclusively and unlimitedly or in a manner that deprives others of accessing human creations.
No one should have exclusive and unlimited rights to their inventions of creations. Copyright laws in fact do not recognize exclusive or unlimited rights to creations, be these creations, books, works of art or inventions. Copyright laws usually prescribe limits during which the protection lasts. However, it does not limit how much financially a person can benefit from his or her own works. In this matter copyright protection serves the interest of the capitalist system.
But private property also has to be balanced by the public interest. There is nothing like an absolute right to private property, and since intellectual creations are considered as private property, there is no such thing as exclusive or unlimited intellectual property rights.
All private property rights are subject to the public interest. When a man buys a piece of real estate, he is not free to do with it as he pleases. In constructing a house on the land, the owner has to abide with certain regulations aimed at protecting the public interest.
When living on the said property, the owner cannot play music loudly so as to disturb his neighbors. Or he cannot bury large animals on his land if it is in a residential area, or he cannot leave rubbish dumped on his property and thereby create a health hazard. His rights to private property have to be balanced with the protection of the public interest.
It is no different when it comes to intellectual property. The right to intellectual property has to be balanced with the public interest and the purveyors of intellectual property know this all too well.
Important to the public interest is accessing products and services that are protected by copyright. Yet in many instances copyright protection places access out of the reach of millions. As such many countries in the public interest, particularly in the area of public health, have refused to abide by copyright protection.
When HIV was ravaging parts of Africa, one country made it clear that it had a duty to save the lives of millions and in order to do so it needed cheap retroviral drugs. However copyright-protected pharmaceuticals were not affordable and therefore placed these drugs out of the reach of millions who were thereby consigned to death.
Certain countries such as Brazil and India have in the past made it clear that when it comes to saving the lives of millions they have serious issues with respecting copyright protection. In other words they were saying that copyright protection should not deny access to pharmaceuticals that could save lives.
This is one of the reasons why in DOHA, the WTO was forced to grant an exemption for countries to engage in compulsory licensing for the production of life- saving pharmaceuticals.
If health is a public good which means that its enjoyment by one does not affect its enjoyment by others, then education is also a public good. And if countries can force the WTO to allow for exemptions from copyright protection as to ensure greater access to medicines, why should the same principle not be applied to education? Why should copyright protection not be slackened so as to secure access to educational resources?
This in fact seems to be the position that President Donald Ramotar was arguing recently at the United Nations. Education is a public good and access to education should not be constrained by copyright protection which can have the effect of placing the costs of educational materials out of the reach of the poor.

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