A Compulsory licensing in Patented Inventions: good or evil? Discovering clause of “public interest” (original) (raw)

Intellectual property deals with creativity and innovation. Both, despite total “technologizing”, are still “human-based”, social based. It is still all about human beings, alone or as networks, who are original creators. At least until the world is not occupied by robots or avatars. Main concern is still with the Society in the core - with a bundle of its own mechanisms and rules that are not always could be obeyed by politics and law. Moreover, when tables are turned, and history of recent years showed, that intellectual property it is not only about books, fashion and new sorts of cheese. Let’s remember about aspects that deals with essential human rights issues: patents, that deals with essential medicine, the transfer of technology to LDCs...And this list becoming more and more supplemented, and each of the points is of high importance. Moreover, differences in the perception of IP protection by developing and developed nations also should be taken into account. Hence, social aspects should be the trigger signal for everyone who deals with IP on all levels: creators, end users, academics, activists and, of course, governments Ideas of importance of social background in understanding IP system could be found in works of James Boyle – a contemporary, influential author in pro-public domain circles. He drew an interesting parallel with the environmentalism. According to his idea, as soon as once in their time pioneers of the movement succeeded in huge task of changing perceptions and forming new types of coalitions , IP activists now need to implement similar ideas into intellectual space. That means that we also need to make intentions to construct new models of IPR’s by rethinking way of understanding old ones. The inclusion of some social needs, as knowledge, to normative framework will make it more flexible, “social-friendly”. Generally speaking – changes in our mind needed for general weal, for intellectual ecology. In one his interviews Boyle, while answering question about nature of IPR’s, elaborated on concept of “liability rules” that bears upon model of “right to payment”. In opinion of scholar, within-named could and even should in some way replace in social consciousness another one - “right to exclude”. Idea to spread was in statement that it is important to separate the right to compensation from the right to forbid use. Boyle, also adverting to his colleagues Jerome Reichman scholar results, stated that these liability rules at same time are may perform two important functions. Firstly - minimizing part of damages that are produced by legalized monopoly. Secondly – it is still caring about magnitude of compensation of innovators input. Latter Boyle continued that “the case of liability rules is particularly compelling in cases of humanitarian emergency”. That is, by far, deeply concerns issue of compulsory licenses in patents innovations. Doesn’t access to essential medicines seem “humanitarian emergent”? On the other hand, whence, one should count an appropriate level of compensation in this case? As it will be described latter, in case of compulsory licensing that it’s not “the one” who will deal with this task – a racy couple of State and Market will act on the stage. And here, let’s be honest, notions as state corruption and ongoing tendency of total “politicization” of all social processes subconsciously comes to mind. However, there are already numbers of cases in which liability rules worked