Revisiting the moral foundations of Intellectual Property Rights

Almost 20 years ago, Theo Papaioannou offered a philosophical and political economy critique of the moral foundations of Intellectual Property Rights (IPRs). At the time, he argued that the moral foundations of IPRs were not philosophically sustainable nor morally defensible, concluding that IPRs are inherently political and that they serve to reinforce capitalist structures and corporate power. Since that article was published, and while working together on delivering open research initiatives at The Open University, we’ve gained more insight into the impacts of licensing on the control of knowledge and its implications on global power structures. 

The IPR landscape has undoubtedly changed over the last two decades, and two good things have come to the fore. Firstly, the introduction of creative commons licencing has opened the debate on one’s agency. Individuals are now more empowered to state how their work can be adapted, adopted and reused, including whether others can make money from any derivatives of their original creation. Secondly, the role of using information for the public good has become the default for more actors in the international development sector, brought about partly by the emergence of flexible licenses for outputs and datasets.

However, even with the creation of a suite of robust, legally binding, flexible-use licensing, there is confusion and uneasiness abound about IPR. For example, in the international development sector, there is tension around the commercial exploitation of publicly funded (and therefore publicly owned) innovation and initiatives. Yet the nature of global challenges, such as pandemics or climate change, requires both open access to and exploitation of knowledge in different forms, not least because equitable access is crucial to develop local innovations to tackle global emergencies. Conversations between potential international development partners can therefore highlight many inequities, conflicting agendas and assumptions about ownership, exacerbated if any one partner’s default position is to protect their IP (or their researchers’ IP) above all else. These are not easy conversations to have, but have them we must, and insist on them at the initial research design stage, before contracts are signed. Retrofitting or revisiting ownership requirements and clauses is neither practical, nor good practice, nor equitable.

And what of the individual who owns the rights to the work they created? These too can be difficult conversations, particularly when institutions hire creative agencies and independent consultants; who owns their knowledge and creative output depends on contractual stipulations. What’s clear is that IP is about control; we cannot ignore that the moral foundations of IP systems often benefit the powerful at the expense of the public good.

The IPR landscape has changed over the last two decades and it continues to change. In amongst this flux, there are sources we can turn to that help us navigate the different legislative boundaries and practices. The World Intellectual Property Organization, a United Nations agency, offers unparalleled advice on patent and trademark protection, as well as IP dispute resolution for everyone ranging from indigenous peoples to businesses and universities. In a changing IPR landscape, this type of detailed, legal oversight and advice becomes ever more important.