The Ethics of Intellectual Property: Should Some Innovations Be Free for Public Good?

This article is written by Maheja Mahadevan Mithran of 4th year from Vels Institute of Science and Technology and Advanced Studies,Chennai, during her internship at LeDroit, India.

Intellectual Property Rights (IPR) incentivize creativity and innovation by granting inventors exclusive rights over their creations. Though Innovation drives progress, its benefits often remain inaccessible to those who need them most due to the restrictive nature of Intellectual Property Rights. While IPR is vital for rewarding creativity and fostering economic growth, ethical concerns arise when essential innovations such as medicines, clean energy technologies, or educational tools are priced beyond the reach of large populations.

This article explores whether some innovations should be free for public good, examining both the benefits and challenges, with insights from India and global practices.

1. 1.The Indian Context: Balancing Innovation and Accessibility India’s IPR framework, aligned with the TRIPS agreement, integrates mechanisms to ensure public access to critical innovations.
2. 2.Compulsory Licensing: Under the Indian Patents Act, 1970, the government can issue compulsory licenses during public health crises. In 2012, India allowed the generic production of Nexavar, a cancer drug, reducing costs by 97%.
3. 3.Protection of Traditional Knowledge: India established the Traditional Knowledge Digital Library (TKDL) to protect indigenous knowledge from exploitation and ensure its rightful use globally.
4. Affordable Medicines: India’s robust generic drug industry supplies low-cost medicines worldwide, prioritizing health equity over profit.

The Global Perspective: Innovation vs. Access
Globally, IPR frameworks often prioritize the economic interests of developed countries:

1. 1.TRIPS and Public Health: The TRIPS agreement grants flexibilities for public health emergencies, but implementation varies widely. During the COVID-19 pandemic, India and South Africa proposed waivers for vaccine patents, which faced resistance from developed nations.
2. 2.Climate Technologies: Developed countries hold patents for green technologies, often limiting their accessibility in developing regions. Ethical considerations demand a more collaborative approach to address global challenges like climate change.
3. 3.Open-Source Movements: Initiatives like the open-source software movement demonstrate how collaboration can drive innovation without stringent IPR enforcement.

Ethical Challenges and the Need for Reform
The ethical dilemma lies in balancing reward systems for innovators with equitable access to essential innovations. While exclusivity encourages investment, overprotection can lead to inequality, particularly in critical sectors like healthcare, education, and environmental sustainability.
● Public Health: High drug prices due to patent exclusivity restrict access in low-income countries. Compulsory licensing and patent pooling are essential to address these disparities.
● Global Inequality: Developed nations dominate patent filings, reinforcing economic inequalities. A fairer global IPR system is necessary to bridge this gap.
● Technological Sharing: Innovations in climate technology and healthcare should prioritize global welfare over profit.

Towards an Ethical IPR Framework.

A balanced IPR regime could consider:

1. 1.Tiered Pricing Models: Allowing innovations to be free or subsidized in low-income regions while maintaining profitability in wealthier markets.
2. 2.Open Innovation Platforms: Encouraging collaborative innovation, where inventors share technologies under fair-use agreements.
3. 3.Public-Private Partnerships: Governments can fund critical innovations and ensure equitable access while allowing companies to retain some rights.
4. 4.International Collaboration: Multilateral agreements under frameworks like TRIPS can provide mechanisms for compulsory licensing during crises or for public good.

Comparative Analysis: India and the World

Aspect India Global (Developed Nations):Public Health Measures Compulsory licensing for affordable drugs Strong patent protection, limited flexibilities,Traditional Knowledge TKDL safeguards indigenous knowledge Limited recognition of traditional contributions

Open – Source Movement

1.Growing support in education and tech
2.Significant adoption in software
3.Crisis Management Advocates for patent waivers during crises Prioritizes profit over equitable solutions
Illustrations

1. Public Health:
   ● Essential medicines and vaccines are often prohibitively expensive due to patents. During the COVID-19 pandemic, countries like India and South Africa advocated for temporary patent waivers to improve global vaccine accessibility.

Example: The compulsory licensing of Nexavar in India enabled affordable cancer treatment, demonstrating how patent restrictions can be overridden for public good.

2. Climate Change Technology:
   ● The global South struggles to access advanced clean energy technologies held under patents. Free or affordable access could accelerate the transition to renewable energy and reduce global carbon footprints.

Example: Patent-sharing mechanisms like the UNFCCC’s Technology Mechanism aim to address this gap but face resistance from patent holders.

3. Education and Knowledge Sharing:
   ● Open-source educational platforms such as Khan Academy and Coursera have transformed learning, particularly in underprivileged areas. Free access to learning tools can bridge education gaps globally.
4. Innovation in Crisis Situations:
   ● Emergencies like pandemics or natural disasters demand rapid and equitable access to critical technologies. Restricting such innovations under IPR can exacerbate inequalities.

Case Laws

1. Novartis AG v. Union of India (2013):
   ● Facts: Novartis sought a patent for its cancer drug Glivec, but the Indian Patent Office rejected it, citing Section 3(d) of the Patents Act, 1970, which prevents evergreening (granting patents for minor modifications of existing drugs).
   ● Judgment: The Supreme Court upheld the rejection, emphasizing that patents should serve innovation and public welfare rather than perpetuating monopolies.
   ● Significance: This case reinforced India’s commitment to accessible medicines while adhering to TRIPS obligations.
2. Shreya Singhal v. Union of India (2015):
   ● Though primarily about free speech, this case indirectly highlights the balance between innovation and societal needs. It addressed the role of the government in regulating frameworks (like IPR) that impact fundamental rights.
4. India’s First Compulsory Licensing Case – Natco Pharma Ltd. v. Bayer Corporation (2012):
   ● Facts: Bayer Corporation’s high price for Nexavar led Natco Pharma to seek a compulsory license.
   ● Judgment: The Controller of Patents granted the license, reducing costs significantly for the Indian population.
   ● Significance: The case emphasized public health priorities within the IPR framework.
5. Dimminaco AG v. Controller of Patents and Designs (2002):
   ● Facts: The patentability of a live vaccine was contested, as living organisms were not considered patentable under Indian law.
   ● Judgment: The Calcutta High Court ruled that live vaccines could be patented, broadening the scope of patent law in India.
   ● Significance: The case demonstrated India’s adaptability in IPR to accommodate scientific advancements.
7. 
   Conclusion
   A fair and ethical IPR system is essential to balance innovation and public good. India’s approach, which combines global compliance with local priorities, offers a model for ensuring accessibility and equity. At the global level, collaboration and ethical considerations are crucial for fostering an IPR system that benefits humanity.

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References

1. WIPO. (2023). Understanding Intellectual Property.
2. WTO. (2021). TRIPS and Public Health.
3. Government of India. (2012). Compulsory Licensing under the Indian Patents Act.
4. Oxfam International. (2021). Vaccine Inequity and the TRIPS Waiver Proposal.
5. UNESCO. (2020). Traditional Knowledge and Intellectual Property.
6. Oxfam International. (2021). Vaccine Inequity and the TRIPS Waiver Proposal.
7. Basheer, S. (2005). India’s Tryst with TRIPS: The Patent Story. Journal of Intellectual Property Law, 12(3), 265-293.
8. Reichman, J. H. (2009). Compulsory Licensing of Patented Pharmaceutical Inventions: Evaluating the Options. Journal of Law and Medicine, 16(3), 194–213.
9. Novartis AG v. Union of India & Others, Civil Appeal No. 2706-2716 of 2013, Supreme Court of India https://indiankanoon.org/doc/165776436/
10. Natco Pharma Ltd. v. Bayer Corporation, Compulsory Licensing Application No. 1 of 2011, Controller of Patents https://indiankanoon.org/doc/190869865/
11. Dimminaco AG v. Controller of Patents and Designs, AIR 2002 Cal 202, Calcutta High Court
12. Shreya Singhal v. Union of India, (2015) 5 SCC 1, Supreme Court of India. https://indiankanoon.org/doc/110813550/