This leads me to question the current scope of patent right. Should we protect recent innovations with the same patent right as we did before? The reason why we allow monopoly through patent protection is to acknowledge the disclosure of new inventions, and not to simply reward the “first comer.” We can have access to the competitive price, rather than the monopoly price, by waiting for some more time.

There is another point to think about this. Let’s say that we do not allow a patent for the new Intel processor, even though Intel was the first to develop faster data managing technology. Would they give up innovation while AMD is chasing one step behind? To win the market, Intel has to invest continuously. Not only to win but also to survive in the printing market, HP has to invest time and money for innovation regardless of whether we protect their technology through intellectual property rights or not.

Nowadays, intellectual property is abused in biotechnology or information technology field. Many patents are used to press competitors to enrich the first-comers without providing meaningful benefit to the public. In the era where market competition alone can drive participants to advance and innovate, the justification for awarding monopoly in those fields significantly loses strength.

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One of the presumptions of economics is that people are rational beings. By implication, people are expected to act in their best interest. Does it apply to pharmaceutical industry? The multinational pharmaceutical companies may seem to earn a lot of money using their patent on medicine. But what if in reality, they barely make enough to survive?

It is said that it takes around 15 years to introduce a new chemical into a market place. Although the company starts with many candidates, some are dropped in the 2^nd year, some in the 5^th year, and some just a month before commercialization due to various reasons, such as chronic mammal toxicity, harmful environmental profile, or newly established regulations. Very few candidates survive, but the company has to pay for the cost for all of them. Is the whole process expensive? Definitely. Is it more expensive than it was before? Sure. How high is the success rate? It depends, but now it is far lower than it was before. Why is it like this? Could the high cost and low success rate justify the “greedy-looking” behaviour of pharmaceutical companies?

I think the demand for a higher safety standard in the developed countries is one of the prime reasons of the high cost and low success rate of new medicine development. The people in those countries are getting more sensitive about their health. From our grandparents’ view point, we are just being hypersensitive. The result of increased sensitivity, at least in the pharmaceutical industry, is more regulation and higher potential of liability. In turn, it means more money for more scientific tests to meet more stringent regulations, more time for preparing more data with higher uncertainty of getting a marketable chemical. Usually people living in the developed countries like
Canada are those who lead this trend to the extreme where only a few companies could meet the standard and survive and where people in developing countries cannot afford. Are we willing to accept lowering safety standard to the level of 20 years ago for a new medicine if it could help people in desperate need of a certain medicine by faster and cheaper development and production of medicines?  If we wouldn’t, are the companies still to blame?

Acquiring a patent in pharmaceutical industry requires a lot of investment, which continues to increase, prior to any actual return. This urges the companies to try to get their investment back more quickly than before. Around 15 years ago, the target pay-back-period (the time for recovering all the money invested) was roughly 10 years. Now many companies apply 5 years. The high rate of Mergers & Acquisitions (M&A) for the last 15 years in this industry tells me that the companies were going through a difficult time to produce enough profit to survive or to satisfy shareholders’ request. Some suggests that these companies needed access to quick cash. But M&A usually resulted among leading players in the industry such as Hoechest, Zeneca, Russell etc. Who are the owners of the firms and who gets the money? The managerial people there are just one of the employees, and the number of those managerial positions will be reduced by half by the M&A. Then why merge? One explanation is that the companies had seen little opportunity to survive on their own, probably by the lack of profit to support continuous business in that field or lack of budget to invest for new medicines. They were driven to merge without a choice.

It is true that they want more control over the market with their patent for more money. Some may label their actions as “greedy”, but I would say that they are being “rational”. It does not seem like we can call them greedier than any one of us. The profit gained by the commercialization of new patented medicines alone cannot in itself be the basis for our judgment.  (Kwang Hoon SHIN)

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Great. You have just created a one-dimensional world. In this world, people can only move linearly since there are no ‘sides.’ So, they can’t see you even when you are next to them. Now add three more lines to form a square.

Well done! Now you have a two-dimensional world. The inhabitants can now look around as there are two dimensions - forward, backward, and sides. But still, no ups and downs. People in this world would not be able to imagine a sky over their head. Now, imagine what a bank safe would look like in this world.

A safe in this dimension would have walls but no roof or floor. Despite this deficiency, it is a perfect safe to the inhabitants of this world because they can't imagine 'up'. However, as inhabitants of a three dimensional world, you can easily take the money out of the safe, simply by reaching in. To the dwellers in this dimension, however, this would seem like a preposterous idea. Let’s say that I stole this money. Surprised by the disappearance of money, people in the two-dimensional world decided to take every possible measure to protect the safe. How does it look like?

You may add many more walls, but still no roof. We just have to reach in to get the money, just as we did before. You can be a millionaire! None of the protective measures of this world can protect the safe from you.

In Robertson v. Thomson Corp., the Supreme Court of Canada made huge efforts to define terms that are central to the copyright law such as originality, collective work, substantial part, media neutrality, reproduction and so on. After a lengthy discussion, the Court concluded that: “in order to remain within their right of reproduction, the publishers must enter the entirety of each newspaper into the database …… rather than permitting each article to be viewed separately.” Would this determination put an end to similar disputes? Imagine a newspaper publisher who stores his/her newspaper by article, torn out from a paper—rather than storing it as part of a complete newspaper—catalogued in an alphabetical order by topic without any reference to the date of publishing, etc. Would this be an infringement of the right of the freelancers? According to the majority in Robertson, it would be. But would the freelancers complain about it? I don’t think so. If the publisher had used the CD-ROM in question purely for storage purposes, the authors probably would not have brought a claim. In my opinion, the key issue in Robertson is the change of relationships between the freelancers and the publishers by the advent of new media. New media include internet portals and commercial database companies who deliver information to consumers. There are three ways for new media to acquire information: First, they can produce articles themselves. Second, they can purchase it directly from the author, either the freelancers or the publishers. Lastly, they can purchase any information from the publisher. Market economy has taken the third option. It is cheaper, faster, and more convenient. Now, the publishers and the freelancers are competitors. Current copyright law has not recognized the competitive relationship between the publisher and the freelancer. It is not equipped with relevant tools, therefore, it cannot provide a reasonable solution to the issues rising from the new relationship. In Robertson, the Court’s attempt at a solution is parallel to trying to protect the safe from the three dimensional world using two dimensional tools. It simply doesn’t work. It is time for the Parliament to intervene. There would be many ways to solve this problem, but the direction that the Parliament should take is to get rid of the competition between the freelancer and the publisher, restoring the relationship back to cooperation. For example, a new law could forbid assignment of any copyright for 60 days from the date of publication, allowing the freelancer to earn as much money as they can without competition within the time frame. It is like pushing me into the two-dimensional world. I won't be able to get the money out of safe while I'm locked in the two-dimensional world. But for the time being, the court in dealing with similar problems should utilize the law to best reflect the change of relationship rather than trying to figure out the exact interpretation of each word.

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