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INTELLECTUAL PROPERTY

According to the definition given by the World Intellectual Property Organization (WIPO), « Intellectual Property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property [1] and Copyright [2] ». But, « There is a cultural, political, and commercial battle raging behind the expression “intellectual property rights” », according to Mouhamadou Moustapha Lo, who adds: « At the moment, the main trend is to try and reduce the complexity of “intellectual property rights” to their economic aspect only [3]. Indeed, « in the heart of intellectual protection systems we find the patents, which give exclusive rights to the inventor [4]», but since the implementation of Trade-Related Aspects of Intellectual Property Rights (TRIPS), many people fear or discuss the dangers of intellectual property rights regarding patenting of living and access to essential medicines, especially for developing countries. That’s why, in reaction to those dangers, some people are intending to advance a fundamental right on essential medicines [5], and that the “free culture” movement is developing, in the wake of Free Software o Creative Commons Licenses.

[1] which includes inventions (patents), trademarks, industrial designs, and geographic indications of source

[2] which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs; see World Intellectual Property Organization, What is Intellectual Property?, http://www.wipo.int/about-ip/en ; we can notice that copyright « is divided into a moral right and a property right. The moral right consists in the respect of integrity of the work and the name of its author. The property right regards the commercial exploitation of the work; it is sub-divided into the reproduction right and the right of representation. The right of reproduction is quite obvious, since it deals with the copy. It is quite easy to determine if a replication is abusive, whatever it is plagiarism or a non-authorized exploitation of the work »; Free translation of: Guillaume de Lacoste Lareymondie, Le droit d’auteur est-il une notion périmée ?, NonFiction.fr, 23/04/2010 : http://www.nonfiction.fr/article-33...

[3] « We live, after all, in a world where a few industrial groups from the countries of the North, which have effectively cornered the market in patents and licences, can impose limitations on the use of all kinds of works by others (the majority) […] This is why key talks take place under the auspices of the World Trade Organization (WTO) and not the United Nations Educational, Scientific and Cultural Organization (UNESCO) or the World Intellectual Property Organization (WIPO). Even the World Summit on the Information Society (WSIS) has avoided the subject, despite it being a major legal and social mainstay in the creation and transmission of knowledge », Mouhamadou Moustapha Lo, Intellectual Property Rights, in VECAM, Word Matters, 20 march 2006: http://vecam.org/article716.html?lang=en

[4] « According to article 28 of Trade-Related Aspects of Intellectual Property Rights (TRIPS), a patent prevents from making, using, offering for sale, selling, or importing without the owner’s consent, the patented product », free translation of : Catherine Pelletier, Accès aux médicaments: le coût de la propriété intellectuelle, 1st january, 2007 : http://www.lepanoptique.com/section...

[5] See the Montréal Statement on the Human Right to Essential Medicines, written on 30 september 2005; even if this statement has no legal effect and no government is obliged to respect it

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Définition développée

Taking up the spirit of the Washington declaration (The Washington Declaration on Intellectual Property and the Public Interest: http://infojustice.org/washington-d...), Pierre Mounier affirms « that the extremists of copyright have extended during the past 25 years the application of intellectual property right up to a point that threatens the fundamentals of our society : freedom of speech, right of information, culture, education and even public health. In other words, it is the public good which is taken hostage by private interests on behalf of a right that became absolute and a right opposable to all. The intellectual property right has always been a matter of equilibrium, as academics pretends, between creator’s legitimate demands and the needs of society. [1] ». The « Statute of Anne » (brittish law, first attempt to establish a « copyright » in 1710: http://www.copyrighthistory.com/ann...) thus specified wanting to promote « the encouragement of learned men to compose and write useful books [2] ». Talking of which, Joost Smiers affirms that « the concept of copyright, formerly favourable, thus became part of control means of the intellectual and creative common good on the hands of a small number of industries [3] ». Those mutations of intellectual property are consequences of new supports for creation which appears with the development of Information and Communication Technologies (ICT), especially « accelerated innovation in sectors such as information technology and biotechnology [which] has accentuated divergences in the positions of the countries of the South and those of the North [4] ». Thus, the juridical approach opposes two types of visions regarding « intellectual property rights »: a static vision (« being satisfied with heritage, traditions, and privileges […] a set of texts whose application leads to questions ») and a dynamic vision (« intellectual rights should above all facilitate the expression of ideas, their circulation by means of ICTs and, eventually, their systematic reuse ») [5]. Within the frame of this opposition, it is now the mercantile evolution of intellectual property conception which appears problematic and which confronts « the attitude of a large number of pressure groups [6] » which concerted action is done « to the detriment of the common good of information and to the exceptions to use that promote the movement of knowledge [7] » and the civil society « together with developing countries, is aimed so as to obtain a “treaty on access to knowledge” [8] » (Geneva Declaration on the Future of WIPO, September 2004 : http://www.cptech.org/ip/wipo/genev...), constituting a worldwide movement which gathers a large number of people, named « a2k : access to knowledge » (http://www.cptech.org/a2k/) [9].

Mouhamadou Moustapha Lo concludes: « Rights are a formalization of social relationships. Accordingly, intellectual property rights are a political issue that must be discussed as such by governments and civil society. Given the importance of information for daily life, the education of future generations and sustainable economic development and the protection of nature, its protection must be ensured by states with the involvement of users and economic and scientific authorities. It is not the market that should lay down the law, and we cannot allow a situation to become established where a few large groups share all the knowledge of the world. Information societies will only be genuinely inclusive when a universal public information domain can work for the benefit of all. A genuine harmonization of intellectual property rights will come through an adjustment in the balance between owners and users and between developed and developing countries. Information must serve humanity, and knowledge remain the connection to development. [10] ».

[1] Meanwhile this equilibrium was broken up by a quarter of a century of extremist legislative measures, they [the Washington declaration’s author, Editor’s note] appeal to a certain number of corrections: First, the intellectual property right needs to be put in its right place, they affirm: protecting knowledge and cultural creativity against attempts of exclusive appropriation based on this right. By the same way, it should be paid attention this right should not be used to restrict freedom of speech or to infringe other civil rights [...] The value of Public domains must also be reasserted by declaring a moratorium on every new extension of intellectual property right. The public power must encourage free resources, and oblige its own agencies to free those which are produced on a public financing basis […]. If outrageous claims of rights owners must be limited, cultural creativity must also be encouraged, as Washington Declaration‘s authors think. Indeed, we might take a new look at the functioning of rights management companies, that have become opaque and counterproductive. Authors must be given more rights with regard to publishers, first by limiting the perimeter of contracts they sign with publishers, then by allowing them to renegotiate those contracts, and also by giving them the possibility of defining themselves their licenses they grant to the public on their work »; free translation of: Pierre Mounier, On a piraté le droit de propriété intellectuelle, Homo numericus, 26/09/2011: http://www.homo-numericus.net/spip....

[2] quoted in Mouhamadou Moustapha Lo, Op. cit.

[3] free translation of : Joost Smiers, La propriété intellectuelle, c’est le vol ! (Plaidoyer pour l’abolition des droits d’auteur), Le Monde diplomatique, septembre 2001 : http://www.monde-diplomatique.fr/20...

[4] Quote: Mouhamadou Moustapha Lo, Op. cit.

[5] all quotes are from: Mouhamadou Moustapha Lo, Ibid.

[6] Hervé Le Crosnier, following Larry Lessig, calls them the « fundamentalists of intellectual property », when he refers to this group constituted by lawyers, big companies of communication and pharmaceuticals industries; See: Hervé Le Crosnier, Les droits de propriété intellectuelle sont en danger, VECAM, 15 mars 2005 : http://vecam.org/article437.html

[7] it also tends to expand constantly the field of intellectual property, going as far as to affect basic rules and sectors that are vital for all humanity (medicine, genetics, patenting living organisms, agricultural seed, traditional knowledge, geographical and botanical data, and so on)

[8] all quotes are extracted from: Mouhamadou Moustapha Lo, Ibid.

[9] Hervé le Crosnier livre gives the detail of these organisations which compose this movement in his article (in French) : Les droits de propriété intellectuelle sont en danger,VECAM, 15 mars 2005 : http://vecam.org/article437.html

[10] Mouhamadou Moustapha Lo, Intellectual Property Rights, in VECAM, Word Matters, 20 march 2006: http://vecam.org/article716.html?lang=en

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