According to the definition given by the World Intellectual Property Organization (WIPO), « Intellectual Property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. IP is divided into two categories: Industrial property [1] and Copyright [2] ».
But, « There is a cultural, political, and commercial battle raging behind the expression “intellectual property rights” », according to Mouhamadou Moustapha Lo, who adds: « At the moment, the main trend is to try and reduce the complexity of “intellectual property rights” to their economic aspect only [3].
Indeed, « in the heart of intellectual protection systems we find the patents, which give exclusive rights to the inventor [4]», but since the implementation of Trade-Related Aspects of Intellectual Property Rights (TRIPS), many people fear or discuss the dangers of intellectual property rights regarding patenting of living and access to essential medicines, especially for developing countries.
That’s why, in reaction to those dangers, some people are intending to advance a fundamental right on essential medicines [5], and that the “free culture” movement is developing, in the wake of Free Software o Creative Commons Licenses.
Full definition
Taking up the spirit of the Washington declaration (The Washington Declaration on Intellectual Property and the Public Interest: http://infojustice.org/washington-declaration), Pierre Mounier affirms « that the extremists of copyright have extended during the past 25 years the application of intellectual property right up to a point that threatens the fundamentals of our society : freedom of speech, right of information, culture, education and even public health. In other words, it is the public good which is taken hostage by private interests on behalf of a right that became absolute and a right opposable to all. The intellectual property right has always been a matter of equilibrium, as academics pretends, between creator’s legitimate demands and the needs of society. [6] ». The « Statute of Anne » (brittish law, first attempt to establish a « copyright » in 1710: http://www.copyrighthistory.com/anne.html) thus specified wanting to promote « the encouragement of learned men to compose and write useful books [7] ».
Talking of which, Joost Smiers affirms that « the concept of copyright, formerly favourable, thus became part of control means of the intellectual and creative common good on the hands of a small number of industries [8] ».
Those mutations of intellectual property are consequences of new supports for creation which appears with the development of Information and Communication Technologies (ICT), especially « accelerated innovation in sectors such as information technology and biotechnology [which] has accentuated divergences in the positions of the countries of the South and those of the North [9] ».
Thus, the juridical approach opposes two types of visions regarding « intellectual property rights »: a static vision (« being satisfied with heritage, traditions, and privileges […] a set of texts whose application leads to questions ») and a dynamic vision (« intellectual rights should above all facilitate the expression of ideas, their circulation by means of ICTs and, eventually, their systematic reuse ») [10].
Within the frame of this opposition, it is now the mercantile evolution of intellectual property conception which appears problematic and which confronts « the attitude of a large number of pressure groups [11] » which concerted action is done « to the detriment of the common good of information and to the exceptions to use that promote the movement of knowledge [12] » and the civil society « together with developing countries, is aimed so as to obtain a “treaty on access to knowledge” [13] » (Geneva Declaration on the Future of WIPO, September 2004 : http://www.cptech.org/ip/wipo/genevadeclaration.html), constituting a worldwide movement which gathers a large number of people, named « a2k : access to knowledge » (http://www.cptech.org/a2k/) [14].
Mouhamadou Moustapha Lo concludes: « Rights are a formalization of social relationships. Accordingly, intellectual property rights are a political issue that must be discussed as such by governments and civil society. Given the importance of information for daily life, the education of future generations and sustainable economic development and the protection of nature, its protection must be ensured by states with the involvement of users and economic and scientific authorities. It is not the market that should lay down the law, and we cannot allow a situation to become established where a few large groups share all the knowledge of the world. Information societies will only be genuinely inclusive when a universal public information domain can work for the benefit of all. A genuine harmonization of intellectual property rights will come through an adjustment in the balance between owners and users and between developed and developing countries. Information must serve humanity, and knowledge remain the connection to development. [15] ».