Science and technology provide many societal benefits, such as the enhancement of economic growth or quality of life. They also can produce negative, unintended consequences. Most societies promote science and technology, but this can be costly. Establishment of IPRs 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 may maintain or aggravate wealth inequities.
Rights have little meaning unless they can be enforced and modern technology has made IPRs enforcement increasingly difficult. Photocopiers make it possible for anyone with access to a machine to reproduce works entitled to copyright protection 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, people and institutions seek additional protection for control of the knowledge and its profits. At the same time, society has an increasing need for access to some kinds of knowledge and protection from the use of others.
Abstract ideas cannot be patented but their applications can qualify for patent protection. For example, “Einstein could not patent his celebrated law that E MC2; nor could Newton have patented the law of gravity. Such discoveries are ‘manifestations of Nature, free to all men and reserved exclusively to none.”‘ (Diamond v. Chakrabarty, p. 309, quoting Funk Brothers Seed Co. v. Kalo Inoculant Co., 333 U.S. 127, 130, 1948). General ideas remain in the public domain but their applications may be privatized through the patenting process.
Biotechnology, perhaps more than any other field, has challenged courts and lawmakers to reconsider intellectual property laws. In 1972 Ananda Chakrabarty, a microbiologist, sought a U.S. patent for a genetically engineered bacterium. The U.S. Patent Office denied the application because bacteria are products of nature, and living things cannot be patented under U.S. law. The case was appealed and eventually reached the U.S. Supreme Court. The Court restated the principle that natural phenomena cannot be patented, but found that Chakrabarty’s bacterium was “a product of human ingenuity,” and therefore was patentable under U.S. law.
So many biotechnology patents have been issued for such small innovations that some fear the creation of a tragedy of the anti-commons in which new innovations involve so many existing patents that innovation is discouraged. At least one study has found the anti-commons is not yet a significant deterrent to innovation, but that the situation should be monitored.
IPRs can be attached to writings or products regarded as dangerous or immoral, and IPRs tend to legitimize such works by implying social approval. Societies must decide whether to provide protection for harmful or otherwise objectionable work. New technologies, particularly those that create or replicate life, often trigger debate over whether the work should be done at all, much less be protected by law. IPRs also establish ownership of particular innovations, which may help to determine liability if a product causes harm. This raises questions of whether innovators should be held responsible for their products, particularly when the products are used in unintended ways.
Public funding for science and technology further complicate intellectual property issues. Who should benefit from works developed under public funding, the creator or the public? What balance of public/private benefits best serves societal goals?
Academics build their reputations by producing intellectual works. They seek recognition for their accomplishments, control over any economic benefits, and protection against plagiarism. IPRs promote release of information to the public by assuring the author of protection for the work, even after it is made public. IPRs protect authors from possible appropriation of ideas by others, including peer reviewers, before the work has actually been published.
Ownership can be a major IPRs issue. Who owns the product of collaborative work? At what point does a contribution by a supervisor, graduate student, or coworker deserve coauthorship? When the creator works for a corporation or a university, does ownership lie with the creator or the institution? What about funding agencies? In many cases, ownership or authorship is established by disciplinary customs or by agreements among the parties (Kennedy 1997).
Plagiarism is professionally unacceptable and sometimes illegal, but timing is critical to determining whether plagiarism has occurred. According to Donald Kennedy, “To take someone else’s idea and use it before it has been placed in the public domain is a form of theft … [t]o 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 or not a work is protected.