Contrary to the widespread belief that they safeguard creators and promote innovation, intellectual property rights often act as legal partitions that intensify market monopoly and deter the proliferation of knowledge, according to an expert in information disclosure and intellectual property.

“There is this myth that the reinforcement of exclusive IP rights will encourage and empower inventors and creators,” Nam Hee-sob, patent attorney and director of Open Net Korea and president of Knowledge Commune, told The Korea Herald in an interview.

The exclusivity, however, also means that the free flow of knowledge is cut off at a certain point for the benefit of right-holding individuals, ultimately deterring long-term innovation in society, he said.

“In modern society, creations are rarely about making something out of utterly nothing. It is the precedent works and shared knowledge that inspire people to move onto more advanced applications,” Nam said.
 

Open Net Korea, founded in 2013 as a nonprofit civil society organization, is a watchdog agency dedicated to promoting freedom, openness and sharing in the digital world. Its key slogans include free speech online, freedom from surveillance, open data policy, and the reform of innovation-blocking regulations and of the IP regime.

Nam also serves as a member of a civil task force to evaluate the impact of the Korea-US Free Trade Agreement, in charge of IP issues.

“The advent of the digital era fundamentally changed the way that the results of creation are distributed, consumed, redistributed and eventually paid for, which makes the conventional copyright regime increasingly inadequate to cope with pending issues,” Nam said.

While fully acknowledging the need to protect the rights of creators, Open Net argues that there is a better compensation model than the existing IP law framework.

“One cannot stop the private sector from seeking profits from intangible intellectual assets, but policymakers should not be carried away by such market logic,” Nam said, calling for an expansion of public domain for IP.

A task for South Korean policymakers, according to the senior patent attorney, is to revise the current Framework Act on Intellectual Property, which defines IP reinforcement as a state duty.

“The underlying intention of this legislation was to expand the stakes of the Korean Intellectual Property Office and the Korea Patent Attorneys Association,” Nam said. 

He accused the patent office of posing as a heavyweight stakeholder in the IP market and abusing its power, instead of performing its role as a public policy administrator.

“It has long been customary for KIPO officials to refer to patent applicants as ‘clients,’ a practice which raises doubts regarding the office’s neutrality,” he said.

“KIPO’s role is not to serve these applicants and to maximize the number of issuance, but to thoroughly screen meaningful technologies that deserve monopoly for a considerable length of time.”

The relatively short pendency period for patent applications, which the patent office often touts as a forte, also reveals a flaw in its policy focus and budget operation, Nam added.

“Due to the escalating complexity of technology these days, the average evaluation period for patents has been stretching in the United States and the European Union. South Korea is unique for its accelerating process,” he said.

In the period 2005-2006, KIPO slashed the average pendency period for patent applications from 36 months to 9.8 months. This quantitative change, however, failed to fundamentally improve the office’s capacities in the qualitative perspective, according to the watchdog expert.

“Until very recently, each patent examining officer was assigned with some 300 cases per year, which gave them little room for thorough study and legal review,” he said.

“This was not so much about a lack of budget but more because the office spared relatively little on patent examination, which ironically constitutes its core function.”

Instead of pursuing profits like private market players, IP-related public organizations should work together in using the results of intellectual creation for the benefit of the public, the official added.

“Samsung Electronics, for instance, would enjoy a tax cut worth multitrillion won each year for carrying out research and development projects on the back of state subsidy, which is, after all, the people’s taxes,” he said.

“The problem is that the companies or research institutes get to enjoy the fruits of intellectual works, while little is restored to the public.”

A key challenge for IP policymakers and think tanks is to ensure that intellectual assets created in the public and academic sectors “spill over” to the rest of society, Nam said.

As a valid alternative, he cited the medical R&D treaty model which has been under discussion in the pharmaceutical sector as a way to harmonize economic profits and public interests.

Under the system, patient communities, drugmakers and public organizations would establish a consultative group and decide which medicine to develop in priority. When a specific medicine is confirmed to meet crucial social needs -- a cure for AIDS, for example -- the manufacturer would offer it for public use and instead receive rewards from the joint fund.

“Conventional IP rights are important but they are certainly not the only way to motivate and compensate innovation,” he said.

“When implemented in an excessive, biased manner, IP rights may end up being a ladder-kicking trick by vested interests that seek monopoly in the market.”

By Bae Hyun-jung (tellme@heraldcorp.com)

The Korea Herald is publishing a series of interviews on experts in the intellectual property sector. This is the eleventh installment. -- Ed.