On The Crisis of The Legitimacy of Intellectual Property

【Key words】IP Legitimacy Sovereignty Crisis

The most interesting field of human rights is the impact of the right to health or the right to life from the patent system. People often take drug patents as examples to illustrate. Western big companies have established their position by virtue of their pharmaceutical patents, monopolizing the market and monopolizing profits. Facing the epidemic of AIDS and the high price of drugs or patent technology, The choice of non developed countries is crucial: to abide by international IP rules and purchase drugs or technologies at high prices, Their financial resources are seriously inadequate; It is a violation of international law to produce drugs without permission, without consideration, violation of rules and illegal production of drugs; Otherwise, stand by and watch the health and life of thousands of people regardless.

In this connection, IP system has complex influence on medical research and has many negative effects. Eager to make use of utility, technology monopoly, information blocking, repeated patent and so on, it shows that IP rights can not promote scientific research progress and achievement sharing in all occasions. The right to the benefits of scientific progress is weakened due to the drive of IP rights. Most government investment in basic science research and development has turned to privatization, and a large number of research results are blocked. The growth of biotechnology patents is not promoting, but hindering innovation. The right to food is threatened by patent rules on agriculture and seeds. Around the world, the genome of important crops is monopolized by several agricultural companies; The top 10 companies control 32 percent of seed production and 85% of the pesticide industry. The threat of IP to traditional knowledge and the right to culture is also an important focus of international attention. The right to education, the right to work, the right to an adequate standard of living have been weakened. It is particularly important for the non developed countries that the rules of IP and other human rights are damaged, which ultimately hinder the right to development of the non developed countries.

In both developed and non developed countries, more people are facing the confusion brought by new technologies in other fields. For example, information and academic freedom in the network environment; Biotechnology and human ethics, technological monopoly hinder the progress of science and technology. Therefore, people re-examine the IP system which has created great wealth for mankind: what does the IP system mean for the protection of human rights?

The establishment of WTO, the entry into force of TRIPS Agreement and the globalization of IP system brought about by it. In the new international economic background, western developed countries are striving to promote high-level and global IP protection. And they rely on their dominant position in global economy, trade and politics, and take advantage of the WTO trade framework Committed to the global unification of IP system. Finally, Trips changed the status and nature of IP protection in the economic and cultural life of an independent country, thus rewriting the history of IP. As a result, under the domination of the WTO trade system, it is difficult for the non developed countries, as sovereign countries, to determine the standards and policies for the protection of domestic IP rights according to their domestic economic conditions, and ultimately make it impossible to implement the basic human rights protection of their citizens. This has become the consensus of the international community, especially the non developed countries and human rights circles. The relationship between TRIPS and human rights is shown in different aspects. First, the formulation of TRIPS Agreement does not completely ignore the protection of human rights, and there are some provisions and systems involved in it to varying degrees; Second, although TRIPS takes human rights obligations into consideration, its provisions are designed carelessly, with strong principles and lack of operation; Third, the provisions on human rights should give priority to the protection of IP rights. Therefore, in general, TRIPS agreement can not effectively guarantee the realization of its members’ human rights obligations.

As far as the object of IP protection is concerned, the object defined by TRIPS Agreement obviously belongs to the sector which has developed and occupied absolute advantage in western developed countries, and only involves the innovation of developed countries. For example, the protection of patents in TRIPS is mostly about modern technology forms, such as biotechnology. Statistics over the years show this. According to the world bank and other statistics, the overwhelming majority of technology holders and patent applications come from developed countries. In 2016, the number of patent applications in high-income countries was 2785420, while that in East Asia and the Pacific was 290630, that in the Middle East and North Africa was 1716, and that in sub Saharan Africa was 392959, of which only 38 were from local residents. In particular, the protection of  IP  rights is expensive, the cost of application and maintenance is not small, and the use of IP rights should be supervised, which may eventually crack down on infringement when necessary.

In contrast, TRIPS agreement has not paid enough attention to the protection of cultural heritage and indigenous technology. This includes imbalance, which will have an impact on the enjoyment of human rights, especially cultural rights, in non developed countries and regions. Under the framework of TRIPS Agreement, the relationship between IP  protection and traditional knowledge protection is tense. People see that people outside indigenous communities use their knowledge achievements arbitrarily without the consent of the knowledge owners; However, the new technology produced by such use behavior has become the patent of users, which has been regarded as a serious injustice.

It is not groundless for some scholars to describe the embarrassment of IP rights by crisis. For example, Donald G. Richards once brilliantly explained: “patent, copyright and trademark rights produce monopoly power, which is inconsistent with the maximization of social welfare. This is market failure, which calls for public policy relief in the form of market rules or direct provision of public goods, and market intervention appears. He further pointed out that “the problem of market intervention lies in whether this kind of market intervention is formed by the monopoly right established by the government, and the monopoly right is granted to private enterprises to engage in production and distribution, or in other forms, such as the government directly providing intellectual products and services, or market regulation of intellectual products and services.”.

More importantly, Richards reexamines the International of IP rights based on this theory and from the perspective of political economy. He first linked knowledge with capital. Knowledge, as a kind of capital, entered into the circulation of capital after it was put into production. Since the end of World War II, it has developed rapidly since 1973. The capitalist world system has accepted a new global capital accumulation mechanism, The characteristic of this accumulation mechanism is that capital has unprecedented ability to carry out international activities. The internationalization of capital leads to the construction of a set of normative, supranational system to open up the competition among individual capitals. At the same time, the participation of global capital accumulation is allowed, and the single nation-state still has to mediate the demand caused by individual capital in its jurisdiction. Nation state is also trying to rewrite the content and procedural rules of supranational system. If a country has some unreasonable ability in shaping the structure and function of these national systems and in formulating terms for the occurrence of global capital accumulation, then it can be called hegemonic. When hegemonism  appears, It will inevitably be implemented based on the global demand for expanded reproduction.On the class level, the implementation of hegemony represents the purposeful requirements of some historical hegemonic giants, trying to show their own stage interests as global interests. Trips should be understood as one of the regulatory mechanisms to facilitate the accumulation of international capital. Its operation is to define and protect international property rights, so as to reconcile the international competition among individual capitals, and to unify and strengthen property rights through knowledge-based production and operation. The TRIPS Agreement leads a greater degree of anticipation and rationality into the production and circulation system. The concentration of capital leads to a higher degree of monopoly, and then increases the surplus value. Therefore, Richards concludes that the TRIPS Agreement is essentially escorting hegemony.

Brain Martin is even more outspoken. He pointed out: “IP tries to create an artificial scarcity of ideas. In order to obtain returns, it will not hesitate to pay many people’s costs. The result can only be the aggravation of social inequality.”

Therefore, people can’t help asking, can IP really motivate people to create more and better intellectual achievements?

Can its ultimate goal really promote social development, the progress of human science and technology, and the well-being of the general public? Of course, people’s doubts about it are not groundless, nor are they impulsive or whimsical, nor do they just want to complain. It does face many deep-seated problems. The accusations and crises it faces involve a very wide range. Human progress and development may face a puzzle and stagnation of IP expansion.