Public Interests and statutory monopolies- how to beat the predicament?

Author : Ashok Murthy
Location : India

Human behaviour is somehow predisposed to recognize, identify with and respect only those elements that can be seen, felt, heard or recognized by the sense organs. Thus it comes as no surprise that the owners of intellectual property are having a tough time to not just protect their rights in the intangible but to actually ensure that the people learn to understand that a property, whether tangible or intangible represents something that needs to be respected.

Somewhere along the way, the blame cannot lie with the common man but rests with the often unsympathetic owners and the high prices that follows such statutory monoplies in the form of patents or trade marks or copyrights, as the case maybe. This article could perhaps prove to be a corollary for people who recognize the dilemma in not wanting to break the law but still not deny themselves the subject matter of the amazing human intellect.

Open Source :

Microsoft and other companies cannot deny the fact that the prices attached with their softwares and products cannot be reasonably expected to fall within the limits of affordability of the common man. While hardware prices continue to drop, the software prices haven’t followed in the same momentum. Thus piracy becomes the obvious choice for the consumer.

While Microsoft may cry foul at linux or ubuntu or other open source softwares, ultimately these softwares made by companies and released into the open source without any license fees or royalty attached has proved to be not only better softwares but a consumer’s dream because they can avail the softwares free of cost thanks to the open source nature of the licenses. My advise to consumers, search for open source substitutes to licensed software. Open office instead of Microsoft office and so on. This will reduce the scope of the piracy industry as well as force the IP owners to reduce prices in order to meet competition from open source players.

Compulsory licensing :

Key drugs covering life threatening ailments suffered by a good percentage of poor population, they have proved to be mankind’s greatest hope in the fight against these ailments. However when they fall within the patent protection system, the high prices that follow the monopolistic regime is every government’s nightmare and every poverty stricken family’s suffering. The answer to this lies in the patent system itself. Any member will be entitled to apply with the relevant patent office and ask the government to compulsorily license the patent protected drug. The descriptions and background information of such patented medicines is released in the hands of generic drug makers which presupposes the increased supply of the drugs in the market forcing the prices to fall. South Africa, Thailand and many other countries have successfully used this system to ensure better treatment of life threatening diseases like AIDS.

Anti Trust laws :

Very often agreements between two or more IP owners may involve terms and conditions ranging from ability to operate in markets, prices of products within the same domain, arrangements to give discounts at the cost of the competitor’s, etc. These practices eliminate competition, increase monoplies and invariably prices increase to the consumer’s detriment. Very often IP assets become playing fields for companies seeking market monoplies resulting in a very unfavourable environment for the ultimate consumer. While IP laws deal with monoplies, anti trust laws deal with preventing unlawful monoplies and encouraging competition. So it follows naturally that where monoplies are obtained unlawfully, anti trust laws can be used by the state as well as by any concerned member of the market, to bring in a complaint against such trends and seek such remedies necessary to promote a competitive environment conducive for the common consumer’s interests. Microsoft has incurred the wrath of the anti trust department with their insistence to reduce interoperability of softwares and intel has recently suffered huge fines for offering discounts to their customers in order to ensure that their competitor’s products are not purchased. One would very well want to file a complaint with the local department of justice or fair trade commission should one such shady deal come to their knowledge.


Communicate :

Not all IP owners are capitalistic monopoly hungry douche bags with an “I hate consumer interests” attitude. If there is an aggrievance with the high prices or whatever else that’s bothering you, communicate it to the IP owner, it may actually change things. Prepare petitions, signature campaigns. Encourage the open source movement. Market power fails when there is no market to cater too. If a product is too highly priced, donot buy it at all. When demand falls, profits does too, the companies will be forced to reduce prices.

But ultimately when one buys pirated products, it is not disputed that somewhere along the way the piracy industry is a customer to the IP owner too. A pirated copy of a movie or software can be made from an original copy bought legally. To make the IP owner realize his flaws, one has to protest and the protest follows the decision not to buy anything that involves his product. The economic version of non violent protest by Gandhi logically follows a will and a commitment to what is at the end of the day ethically and morally right. It is hard but what is easy may not be what is right.

This is the dilemma a legitimate consumer faces, but one he has to beat for somebody has to take the moral highground in the battle to ensure the balance between public interests