The growing complexity of international policy in intellectual property

Intellectual property has historically been a self-contained policy at the international level. With the introduction of the TRIPs Agreement in 1994 and developments since the conclusion of the TRIPs Agreement, the relationship between intellectual property policy and other areas of public policy has become much more complex and interactive. This shift reflects the centrality of intellectual property in the knowledge economy, the rapid development of enabling technologies, notably the Internet and biotechnology, and the advent of the networked society. The consequences of this shift are manifold and herald the increased sophistication and complexity that may be expected of intellectual property regimes in the knowledge economy. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Industry,innovation and social values

Remaining important tasks in finding and developing new drugs and vaccines for HIV/AIDS, malaria, cancer and other diseases require continued industry research and development. Industry’s research and development pipeline has produced drugs that have saved AIDS victims previously facing certain death, but still no cure nor vaccine is yet available. Experience with the process of research and development indicates that it requires more than a decade of development to produce a new drug with costs in the hundreds of millions of dollars. Intellectual property protection is critically important in assuring that drug development continues. Partnerships between industry and the public sector have increased access to new therapies in developing countries and promise to enhance access to both patented and generic medicines in the future. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004. This paper was prepared with the assistance of Maciej Gajewski, Policy Research Analyst, International Federation of Pharmaceutical Manufacturers Association (IFPMA).     

Government policy toward open source software: The puzzles of neutrality and competition

For a variety of policy reasons, governments throughout the world are now adopting different legislative and administrative strategies that support the development of FLOSS. Some governments have actually begun to procure FLOSS, whereas others have channeled public funds to large-scale FLOSS projects. This study demonstrates both the benefits and the risks of government policy favoring FLOSS from the perspective of economics, technology, and politics, and to further analyze whether these same policy goals can be achieved through government support of FLOSS. The most fundamental argument of the study is that, in lending its support to FLOSS, the difference between a government user and a business user is that the government should take into account society’s long-term interests, not merely its own interests as a consumer. His research interests include free/open source software, intellectual property, and digital technology policy.     

Some ethical and legal issues in Germany involving informed consent and patenting

This paper elaborates on discussions in Germany regarding some of the ethical and legal issues in the area of the use and patenting of inventions involving human tissue. The issues discussed pertain to the benefits and problems regarding informed consent and the issue of property rights as they relate to the donation of cells and tissue. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Rethinking free, libre and open source software

This special issue includes seven articles that make significant contribution to the literature pertaining to knowledge and public policy around Free, Libre and Open Source Software (FLOSS). Focusing on questions in two themes (i) motivation and organization and (ii) public policy, the articles in this volume develop new analytic models and report on new empirical findings, as an important step in bridging the wide gap that exists in public policy literature around FLOSS. Warning against rhetorical pitfalls that have been prevalent in FLOSS research, this introduction starts with a short history of FLOSS development, continues with a brief thematic literature review and review of the misconceptions surrounding FLOSS, and concludes with a first introduction of the articles that follow. He is part of the Dutch Institute of Government (NIG), the research school for public administration and political science. His research focuses on the organization of open source communities. He received two grants from the Netherlands Organization for Scientific Research (NWO) for research related to open source communities. The first grant was to study the interplay between intellectual property rights and open source communities. The results are published in Governing the Virtual Commons (Cambridge University Press, 2003). He has written numerous articles on open source, which have appeared in journals like Electronic Markets; Knowledge, Technology and Policy; and the International Journal of IT Standards & Standardisation Research. She received her Ph.D. in sociology from the University of York (UK) in 2004. Her Ph.D. research investigated the heterogeneity and contingency in the Free, Libre Open Source Software (FLOSS) social worlds, which is based on a constellation of hacking practices, from the sociological perspective. Her principal research interests center on FLOSS studies, Science and Technology Studies (STS), virtual communities and knowledge-sharing. Shay is also a fellow at The Information Society Project at the Yale Law School. Shay holds a B.Sc. in computer science and a B.A. in philosophy, magna cum laude, from Tel-Aviv University, and an M.A. from New York University where his interdisciplinary research thesis focused on the political economy of free and open source software and file sharing networks. Shay is an entrepreneur that co-founded two software start-up companies, and was involved for several years in cutting edge software research, combining open source and proprietary software.     

Privacy and the encryption debate

Conclusion Robert Heinlein, author of Stranger in a Strange Land as well as countless other science fiction stories, once claimed that "The sole thing achieved by any privacy law is to make the bugs smaller." Heinlein may be correct, but that travesties will happen does not sanction them—and maybe we will invent bugs to root out and foil other bugs. I have argued for individual privacy rights or rights to control sensitive personal information. The explosion of digital technology has made possible severe violations of individual privacy by corporations, news agencies, and the government. If I am correct about all of this, one commonly used "public interest" argument given for limiting privacy rights has been undermined. It is also far from true to claim that the prevalence of strong encryption technology will lead to disaster. While I do not adhere to the view that "rights hold, though the heavens may fall," in this article I have maintained that the security arguments of law enforcement do not come close to meeting the threshold for violating privacy rights. The heavens are far from falling. He is the author of, "Employee Monitoring and Computer Technology" (forthcoming in Business Ethics Quarterly), "Intangible Property: Privacy, Power, and Information Control," American Philosophical Quarterly 35 (October 1998) and is the editor of Intellectual Property: Moral, Legal, and International Dilemmas (Lanham, MD: Rowman & Littlefield, 1997), in which he contributes "Introduction to Intellectual Property" and "Toward A Lockean Theory of Intellectual Property."     

The Incentives Argument Revisited: A Millean Account of Copyright

The U.S. Constitution employs a utilitarian view in authorizing Congress to establish patents and copyrights. Let us refer to this way of justifying copyright as the Incentives Argument, or more extensively, the Incentives Argument for Intellectual Property Rights. While seemingly straightforward, the Incentives Argument has been widely criticized in philosophical literature on intellectual property. Scholars have come to prefer Neo‐Lockean labor‐desert accounts, grounding intellectual property rights in the author's natural ownership claims over his creations. Neo‐Lockean accounts are thought to avoid some of the problems classically associated with utilitarian arguments, such as vulnerability to empirical evidence and an inability to make sense of rights or duties morally prior to consequential considerations. Fortunately, many criticisms articulated by opponents of the Incentives Argument can be answered by a strategic retreat to the version of utilitarianism found in the work of John Stuart Mill. I argue that not only does a Millian account of the Incentives Argument prove less vulnerable to oft‐cited criticisms, but also allows for a more robust account of how the audience benefits from a proliferation of creative works. Mill's focus on the importance of critical self‐development allows for a deeper analysis of how creative works benefit members of the audience as individuals and as a community. Within a Millian framework, viewing the audience as mere passive consumers of media fails to take into account the impact of expressive acts on an individual's critical self‐development. Instead, one must see members of the audience as active participants in the creation of meaning and the common culture. Construing the community that receives creative works as an Active Audience alters the landscape of copyright, and the Incentives Argument, making balancing the desires of creators and the desires of audience members a key priority.     

The ethics activities of the World Medical Association

Since its formation in 1947, the World Medical Association (WMA) has been a leading voice in international medical ethics. The WMA’s principal ethics activity over the years has been policy development on a wide variety of issues in medical research, medical practice and health care delivery. With the establishment of a dedicated Ethics Unit in 2003, the WMA’s ethics activities have intensified in the areas of liaison, outreach and product development. Initial priorities for the Ethics Unit have been the review of paragraph 30 of the Declaration of Helsinki, the expansion of the Ethics Unit section of the WMA website and the development of an ethics manual for medical students everywhere. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Can drug patents be morally justified?

This paper offers a few elements of an answer to the question to what extent drug patents can be morally justified. Justifications based on natural rights, distributive justice and utilitarian arguments are discussed and criticized. The author recognizes the potential of the patents to benefit society but argues that the system is currently evolving in the wrong direction, particularly in the field of drugs. More than a third of the world’s population has no access to essential drugs. The working of the patent system is an important determinant of access to drugs. This paper argues that drug patents are not easily justified and that the ‘architecture’ of the patent system should be rethought in view of its mission of benefiting society. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004. The author is a part-time Senior Research Fellow of the Fund for Scientific Research, Department of Philosophy and Moral Science, Ghent University (Belgium) and a part-time Professor, Department of General Economics, University of Antwerp (Belgium).     

The Expansion and Restructuring of Intellectual Property and Its Implications for the Developing World

In this paper we begin with a reference to the work of Hernando de Soto The Mystery of Capital: Why Capitalism Triumphs in the West and Fails Everywhere Else, and his characterization of the Western institution of formal property . We note the linkages that he sees between the institution and successful capitalist enterprise. Therefore, given the appropriateness of his analysis, it would appear to be worthwhile for developing and less developed countries to adjust their systems of ownership to conform more closely to the Western system of formal property. However, we go on to point out that property relationships within the Western system have become subject to redefinition through the expansion of Intellectual Property (IP) rights in ways that ultimately work to the disadvantage of the developing and less developed countries. We point out that this restructuring has been given global application through the implementation of the TRIPS agreement by the WTO. In the final section of the paper I suggest ways in which IP rights and relevant institutions can be reformed in order to avoid the disadvantages to the developing and less developed countries.

Making human research safe: Why we cannot afford to fail

This paper was given as a keynote address at the international conference on Ethics of Intellectual Property Rights and Patents held in Warsaw, Poland on April 23–24, 2004. The address was the introductory presentation to the important topic of protecting individuals who participate in research as research subjects.     

The rhetoric of dread: Fear, uncertainty, and doubt (FUD) in information technology marketing

This article examines the nature and legality of FUD, which—as will be seen—is a timely subject. IBM may have been FUD’s originator but its greatest practitioner is allegedly none other than Microsoft, which (according to the firm’s critics) has repeatedly exercised FUD tactics in order to acquire and maintain its operating system monopoly. In particular, this article compares Amdahl’s experience with IBM to the emerging contours of Microsoft’s battle against a surprisingly able competitor, the open source operating system called Linux. A major contention of this essay is that attorneys, judges, and legal scholars tend to pay insufficient attention to the unique characteristics of technology enterprises, and thus cannot distinguish meaningfully between practices that are plainly legal under U. S. antitrust law, and those which are not. A perspective drawn from the history and sociology of technology (namely, Thomas P. Hughes’ concept of technological systems) is used to elucidate what is predatory, and what is not, in a dominant market player’s use of FUD and associated marketing tactics. where his scholarly and teaching interests include cyberlaw, intellectual property in high-tech industries, and the social issues posed by advanced information technology. He is also the author of several best-selling trade and textbook titles, including Webster’s New World Dictionary of Computer Terms, 9th ed. (Hungry Minds) and Computers in Your Future, 4th ed. (Prentice-Hall). He lives in Charlottesville, Virginia.     

Patents and ethics: Is it possible to be balanced?

In this presentation, principles of ethics are confronted with the desire of the inventor to make a profit. To this end the presentation is focused on patent protection. Patents should guarantee the return of an inventor’s investment and profit and, on the other side, ensure availability — by patent disclosure — of the invention for the society when the patent terminates. Recent patent applications made by inventors are infringing this principle and societies are paying an unexpected price for these practices. Patent claims are too broad and disclosures too poor. Extreme examples will be discussed. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Ethical and legal aspects in teaching students of medicine

Due to the rapid advances in medical technology, medical students are now being faced with increasingly complex and unparalleled ethical and practical dilemmas during their training. The new and future challenges of high-tech medicine demand improvements in current medical education, not only by meeting the needs of students through humanized training programs, but also by involving them in finding solutions to the ethical and legal quandaries they encounter. Today’s students of medical universities must acquire knowledge and understanding of the ethical and legal issues relevant to the practice of medicine, and we have to do everything possible to introduce these students to the current discussions on more or less controversial ethical and legal topics. Although final answers may not be found, the very discussion, argumentation, and awakening of students’ interest should become an essential part of the core curriculum of every doctor. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004. The author is a student and member of the Senate Committee on Teaching.     

Ethics and patentability in biotechnology

The systems of patent rights in force in Europe today, both at the level of national law and on the regional level, contain general clauses prohibiting the patenting of inventions whose publication and exploitation would be contrary to “ordre public” or morality. Recent years have brought frequent discussion about limiting the possibility of patent protection for biotechnological inventions for ethical reasons. This is undoubtedly a result of the dynamic development in this field in the last several years. Human genome sequencing, the first successful cloning of mammals, and the progress in human stem cell research present humanity with many new questions of an ethical nature. Directive 98/44 of the European Parliament and of the Council of July 6, 1998, on the Legal Protection of Biotechnological Inventions created a new basis for patent protection in this field of technology. Based on the European experience to now, however, it must be said that patent law is not the right place to legislate the consequences of the morality of an invention. An earlier version of this paper was presented at an international conference, “The Ethics of Intellectual Property Rights and Patents,” held in Warsaw, Poland on 23–24 April, 2004.     

Property rights and genetic engineering: Developing nations at risk

Eighty percent of (commercial) genetically engineered seeds (GES) are designed only to resist herbicides. Letting farmers use more chemicals, they cut labor costs. But developing nations say GES cause food shortages, unemployment, resistant weeds, and extinction of native cultivars when “volunteers” drift nearby. While GES patents are reasonable, this paper argues many patent policies are not. The paper surveys GE technology, outlines John Locke’s classic account of property rights, and argues that current patent policies must be revised to take account of Lockean ethical constraints. After answering a key objection, it provides concrete suggestions for implementing its ethical conclusions.     

The cathedral and the bazaar

I anatomize a successful open-source project, fetchmail, that was run as a deliberate test of some theories about software engineering suggested by the history of Linux. I discuss these theories in terms of two fundamentally different development styles, the "cathedral" model, representing most of the commercial world, versus the "bazaar" model of the Linux world. I show that these models derive from opposing assumptions about the nature of the software-debugging task. I then make a sustained argument from the Linux experience for the proposition that "Given enough eyeballs, all bugs are shallow," suggest productive analogies with other self-correcting systems of selfish agents, and conclude with some exploration of the implications of this insight for the future of software. Eric Raymond is the co-founder of the Chester County InterLink (CCIL), which provides free Internet access to the residents of Chester County, Pennsylvania. He is the editor of The New Hacker’s Dictionary (MIT, 1991, 1993) and the author of a book of essays The Cathedral and the Bazaar. He is a member of the Merrill Lynch Technology Advisory Board and has hacked much widely used open source software. He has pursued undergraduate studies in philosophy and mathematics at the University of Pennsylvania but has never had a course in computer stuff.     

WoMMBAT: A user interface for hierarchical Bayesian estimation of working memory capacity

The change detection paradigm has become an important tool for researchers studying working memory. Change detection is especially useful for studying visual working memory, because recall paradigms are difficult to employ in the visual modality. Pashler (Perception & Psychophysics, 44, 369–378, 1988) and Cowan (Behavioral and Brain Sciences, 24, 87–114, 2001) suggested formulas for estimating working memory capacity from change detection data. Although these formulas have become widely used, Morey (Journal of Mathematical Psychology, 55, 8–24, 2011) showed that the formulas suffer from a number of issues, including inefficient use of information, bias, volatility, uninterpretable parameter estimates, and violation of ANOVA assumptions. Morey presented a hierarchical Bayesian extension of Pashler’s and Cowan’s basic models that mitigates these issues. Here, we present WoMMBAT (Working Memory Modeling using Bayesian Analysis Techniques) software for fitting Morey’s model to data. WoMMBAT has a graphical user interface, is freely available, and is cross-platform, running on Windows, Linux, and Mac operating systems.     

Milestones and Russian intellectual history

Milestones was a manifesto of rightwing, anti-revolutionary liberalism, according to which the political events of 1905 should have officially concluded the intelligentsia’s battle against autocracy and inaugurated the intelligentsia’s cooperation with Russia’s “historical rulers” to turn the country into an economically and culturally strong “state of law.” All the Milestones’ authors agreed that Russia’s intellectual history was not identical with the traditions of the radical intelligentsia, and that there was need for a new intellectual canon focused on religious thought and efforts to define the Russian national identity.     

Laughing at finitude: Slavoj Žižek reads <Emphasis Type="Italic">Being and Time</Emphasis>

“Laughing at Finitude” interprets Slavoj Žižek’s intellectual project as responding to a challenge left by Being and Time. Setting out from discussions of Heidegger’s book in The Parallax View and The Ticklish Subject, the essay exfoliates Žižek’s response to the Heideggerian version of a “philosophy of finitude”—both finding the central insight of Žižek’s work in Heidegger’s radical proposal for “anticipatory resoluteness” and developing Žižek’s critique of Being and Time as indicating Heidegger’s retreat from that proposal within the very book where it appears. Žižek reads Being and Time’s existential thematic as proposing a radical subjectivism and, unlike other Heidegger-critics, praises this aspect of the project. Indeed, Žižek claims that the weakness of Being and Time as a whole is that it is insufficiently radical in its subjectivism. For him, Heidegger is a thinker of ambiguous value, one who develops a program from whose own demands he hides. “Laughing at Finitude” both articulates this accusation of self-deception in Heidegger and examines the imperatives necessary to avoid it, for a dialectical shift from the “tragic” voice in existential treatments of finitude and for a revolutionary collectivist re-conception of social “Mitsein.” It suggests, in the process, Žižek’s own intellectual itinerary.