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Science and technology provide many social benefits, such as improved economic growth or quality of life. They can also produce unintended negative consequences. Most societies promote science and technology, but this can be expensive. Establishing intellectual property rights that protect new works and give innovators the right to profit from their creations provides incentives for expensive innovation without the need for direct government subsidies (Posner 2004). At the same time, IPRs can maintain or exacerbate wealth inequalities.
Rights have little meaning unless they can be enforced, and modern technology has made enforcement of IPRs increasingly difficult. Photocopiers make it possible for anyone with access to a machine to reproduce copyrighted works, and the Internet allows anyone to make literary or musical works available to the world.
Science and technology challenge intellectual property systems, particularly patent laws. New fields, such as information technology and genetic engineering, force courts to decide how to apply laws made before such technologies were contemplated. As knowledge itself becomes more valuable, individuals and institutions seek additional protection for control of knowledge and their profits. At the same time, society has a growing need for access to some types of knowledge and protection against the use of others.
Abstract ideas cannot be patented, but their applications may qualify for patent protection. For example, “Einstein could not patent his famous law of E MC2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of nature, free for all men and reserved exclusively for none'” (Diamond v. Chakrabarty). , at 309, citing Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 US 127, 130, 1948). General ideas remain in the public domain, but their applications can be privatized through the patent process.
Biotechnology, perhaps more than any other field, has challenged courts and legislators to reconsider intellectual property laws. In 1972, Ananda Chakrabarty, a microbiologist, sought a US patent for a genetically modified bacterium. The US Patent Office rejected the application because bacteria are products of nature and living things cannot be patented under US law. The case was appealed and eventually reached the United States Supreme Court . The Court reaffirmed the principle that natural phenomena cannot be patented, but found that Chakrabarty’s bacterium was “a product of human ingenuity” and therefore patentable under US law.
So many biotech patents have been issued for such small innovations that some fear a tragedy of the anticommons will be created in which new innovations involve so many existing patents that innovation is discouraged. At least one study has found that anti-commons are not yet a significant impediment to innovation, but that the situation needs to be monitored.
IPRs can be attached to writings or products deemed dangerous or immoral, and IPRs tend to legitimize such works by implying social approval. Societies must decide whether to provide protection for harmful or objectionable work. New technologies, particularly those that create or replicate life, often spark a debate about whether the work should be done, let alone protected by law. IPRs also establish ownership of particular innovations, which can help determine liability if a product causes harm. This raises questions about whether innovators should be held responsible for their products, particularly when the products are used unintentionally.
Public funding of science and technology further complicates intellectual property issues. Who should benefit from works developed with public funding, the creator or the public? What balance of public/private benefits best serves the goals of society?
Academics build their reputation by producing intellectual works. They seek recognition for their achievements, control over any financial gain, and protection against plagiarism. Intellectual property rights promote the disclosure of information to the public by guaranteeing the author protection of the work, even after it has been made public. Intellectual property rights protect authors from possible appropriation of ideas by others, including reviewers, before the work has been published.
Ownership can be a major IPR issue. Who owns the collaborative work product? At what point does a contribution from a supervisor, graduate student, or co-worker merit co-authoring? When the creator works for a corporation or a university, does the ownership rest with the creator or the institution? What about funding agencies? In many cases, ownership or authority is established by disciplinary customs or by agreements between the parties (Kennedy 1997).
Plagiarism is professionally unacceptable and sometimes illegal, but timing is critical in determining whether plagiarism has occurred. According to Donald Kennedy, “taking someone else’s idea and using it before it is in the public domain is a form of theft… [t]or to make further use of someone else’s idea after it has been published is scholarship” (1997, p. 212). Of course, attribution is critical even, or especially, in scholarship, whether a work is protected or not.