Malta: The Intellectual (Monopoly) Property Perception

"To call it 'intellectual' is misleading. It takes one's eye off the ball. 'Intellectual' confers a respectability on a monopoly which may well not be deserved. A squirrel is a rat with good P.R. 'Intellectual Property' is perhaps a phrase coined by the same P.R. agent for monopolies?"1 – Professor Sir Robin Jacob, emeritus Lord Justice in the Court of Appeal of England and Wales.

Intellectual property (IP) refers to "creations of the mind" such as inventions, designs, brand names and images which are attached to particular brands, and literary or artistic works.2 Simply put, intellectual property law grants intellectual property rights (IPRs) which entitle the right holder to the exclusive use and exploitation of his IP. IPRs can be categorized into two: (a) "industrial property" which covers patents for inventions, trademarks for brand names and logos, industrial designs and geographical indications of origin of a product, and (b) "copyright" which covers literary and artistic works.3 There has been much debate on the monopoly that is created by the granting of such IPRs to a few persons with a direct economic interest in protecting their IP from use or copying thereof by unauthorized third parties, to the detriment of the wider general interests of society.

The discussion on IP monopoly has predominantly concentrated on industrial property, for example, with regards to the patenting of medicines and pharmaceuticals giving a monopoly power to pharmaceutical companies, and this to the detriment of third world country nationals who do not afford to purchase such medicines due to that monopoly. However, the discussion has also extended to copyright. As consumers become increasingly literate in IP matters, the general public is aware that IPRs are often held by large legal entities like publishers, record labels, collecting societies, and, in general, multinational IP producing or managing companies.

Just in March of this year the European Union Intellectual Property Office (EUIPO) has published a report of its findings in the 'European Citizens and Intellectual Property: Perception, Awareness and Behaviour' survey which questioned 26,555 EU citizens, 500 of which were Maltese, about their perception of intellectual property.4 The survey builds on a previous study carried out in 2013 which consisted in focus groups and in depth interviews.5 The latter study shows that most Europeans associate IP with "big corporations".6 These are some of the comments made by European citizens during the interviews:

– "Big corporations are greedy and overprice their products."7

– "I am annoyed by companies who make their money out of IP. They don't want to protect individual rights; they only want to make money out of it."8

– "The protection of IP and copyright is not about protecting but about collecting money."9

In summary the study shows that "a large majority of Europeans believe IP protection does not primarily benefit consumers and citizens like them but rather the business and artistic elites. When asked who benefits the most from the protection of IP, only 11% of EU citizens mentioned consumers and less than 20% mentioned small and medium enterprises. On the other hand, over 40% mentioned large companies and famous artists and, to a lesser extent, inventors, as the primary beneficiaries of the protection of IP."10

The 2017 report confirms these perceptions, and that they are on the rise. The percentage of those who believe that IP protection principally benefits "large companies" and "famous artists" has risen to 44% with only 5% believing that it benefits consumers and the wider society. 10% of the respondents admitted to downloading or streaming illegal or pirated content in contravention of copyright.11 Yet 97% maintained that "it is important that inventors, creators and performing artists could protect their rights and be paid for their work".12 What deters consumers from purchasing legal content is rather that it is not affordable as a result of the monopoly created by the fact that the content is copyright protected.13

Based on these findings, the report hints at the role that alternative business models can play in weakening the IP monopoly perception and thereby help to curb piracy of copyright protected content. Business models like Spotify which allows consumers to stream music for free and generates its revenue from advertising and monthly premiums for access to certain restricted features and YouTube wherein music and other content can be accessed for free and generate revenue through advertising and passes a percentage onto the music industry. In the film industry one can mention LoveFilm and Netflix which allow consumers to download or stream a vast selection of films and series against payment of a monthly subscription irrespective of how much content one actually consumes. This is also the rhetoric that has been advocated by Google's policy teams to argue that the liberalisation of copyright through the use of such business models benefits both consumers and the holders of IPRs; only last May it has claimed if YouTube didn't exist most heavy users of the platform would resort to piracy.14

In short, such alternative business models have the potential of breaking up the IP monopoly. They benefit both the consumers and the holders of IPRs. For consumers, they offer legal content which is affordable. For IPR-holders, they engage a wider consumer base precisely because the content is made cheaper, in particular, those consumers who would otherwise revert to pirated content. 

Footnotes

1 The Rt. Hon. Professor Sir Robin Jacob, 'The Stephen Stewart Memorial Lecture: Industrial Property - Industry's Enemy' (1997) 1 I.P.Q. 3, 3.

2 World Intellectual Property Organization, 'What is Intellectual Property?' (Publication No. 450(E), 2011) http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf.

3 Ibid.

4 European Union Intellectual Property Office, 'European Citizens and Intellectual Property: Perception, Awareness and Behaviour' (2017) https://euipo.europa.eu/tunnelweb/secure/webdav/guest/document_library/observatory/documents/IPContributionStudy/2017/european_public _opinion_study_web.pdf.

5 Office for Harmonization in the Internal Market (now called the European Union Intellectual Property Office), 'The European Citizens and Intellectual Property: Perception, Awareness and Behaviour' (2013) https://euipo.europa.eu/tunnelweb/secure/webdav/guest/document_library/observatory/documents/IPContributionStudy/25-112013/european_public_opinion_study_web.pdf .

6 Ibid p 20.

7 Ibid p 21.

8 Ibid p 22.

9 Ibid.

10 Ibid p 8.

11 EUIPO, 'European Citizens and Intellectual Property: Perception, Awareness and Behaviour' (2017) p 23, 27.

12 Ibid p 25.

13 Ibid 27.

14 Simon Morrison (Public Policy Manager, EMEA), 'What is YouTube's role in the music industry?' (Google in Europe Blog, 11 May 2017) https://www.blog.google/topics/google-europe/youtube-role-music-industry/.

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