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DEBATES 2011 - Intellectual property : efficiency and equity, by Elie Cohen

Protecting intellectual property seems logical: how could it be possible to encourage research, remunerate intellectual creativity and launch the new international division of labor as a win/win game if intellectual property is not strictly protected? In a globalized knowledge economy that is confronted, in its developed part, with an accelerated deindustrialization and in its emerging part, a forced industrialization, the intangible economy of creation and innovation represent a driving force of growth for the more advanced countries. Adequate human capital, attractive tax policies, an adpated regulatory and social environment and an effective system of protection and management of intellectual property are the basic requirements of this new economy.

Yet, intellectual property is threatened by the digital revolution, which makes it difficult to protect all dematerialized works, though illegal copying in emerging countries, and emerging challenges of the legitimacy of intellectual property.

Illegal copying in emerging countries already feeds an important industry of legal argument; it is at the heart of the US vs. China trade wars.

The question of gratuitousness on the Internet is evolving; new business models are tested to get out of the “all free”. For the first time we begin to reach a new balance of income in the area of music that combines gains on the Internet, revenues from the performing shows and by-products, without loss compared to the classical model of the disc industry.

But a more radical protest grows against the regimes of intellectual property protection for three main reasons: one related to the dynamics of scientific creation, the second to the inequity of a system that deprives the poorest of humanity ‘s possessions,  and the third one due to the monopolistic nature, and therefore dependent, of intellectual property.

The first objection is the more serious because it questions the harmful impact of the competition to get the patents on the process of scientific creation: scientific property is then enemy of the progress of knowledge. Attempts to protect DNA sequences, softwares, algorithms and economic models are examples of creeping strategies of expansion of the field of restrictive protection against free use of knowledge. Free research and academic dedication are the driving forces of the progress of fundamental knowledge, no need of license or material incentives once public research is funded by public resources.

The second objection made the headlines when important pharmaceutical companies wanted to continue the illegal imitators of AIDS treatment molecules in South Africa. In this case patent protection was going against humanitarian requirements of assistance to populations in danger. A solution was found by granting cheap licenses and public funding.

The third objection is growing at the heart of economic theory: how to justify the monopoly income when we claim that, in any field, we have to look for competition and when daily examples of sharing knowledge prove how fecund they can be (free software, Wikinomics)? The monopoly conferred by intellectual property can be a source of abuse; authorities regulating competition should be given the possibility to fight against possible abuses.

In total, once given up the idea of absolute protection, practical solutions can always be found…

It is first necessary to limit the drift of the "patentable", the restrictive approach advocated in Europe is preferable to extensive American conception of which deleterious effects on the progress of knowledge have been observed. Nothing can justify the patenting of DNA sequences, especially if a weapon is made out of it to prevent new progresses in research.

It is then necessary to bring the incentives into line; if intellectual property is limited how to prevent the abandonment of some areas of research? The answer is both to look for in the academic model and public funding for goods of humanity.

Finally, to any monopoly, it is necessary to oppose regulation.

Then, intellectual property will serve the economic growth.


Elie Cohen