Increasing protection of IP rights is market and profit driven – which means IP incentivizes any tech that is profitable, regardless of social cost

3. Narrowly distributed benefits and unevenly shared consequences

To the extent that IP incentivises technology which also has benefits, a further question would be whether these benefits are evenly distributed, or at least widely shared so that we could consider them to be ‘utilitarian’? Without attempting to delve into the philosophical debates about defining utility, let’s take the classical approach of bringing about ‘the greatest amount of good for the greatest number’.25 If we then define ‘good’ simply as what is desirable in that it materially benefits humans (noting that excludes other living beings with whom we share this planet, and the usually detrimental impact of modern technology on them),26 is IP at least operating so as to promote the welfare of all humans? This of course depends on whether the technologies and other advances incentivised via the IP system are likely to benefit all, or at least most human beings living on this planet.

Since the idea for IP to operate as an incentive tool is generally premised on a market economy framework (in that those developing new technologies are usually market actors who do so for profit) where demand determines the ability to recoup investments into R&D and to make a profit, the type of technology incentivised and disseminated is, in principle, equally market-driven. Only economically potent market demand for technology offers IP owners an opportunity for a return on investment – and anticipating this demand (including demand created by influencing consumer choice) determines what technology will be developed. To put it bluntly: market-driven incentives give us medical products such as Viagra, rather than effective treatment for Malaria or other ‘neglected’ diseases primarily affecting the poor. IP rights then make investing into the former economically worth-while, but cannot incentivise development into the latter if there is no reasonable expectation of economic returns. The technologies promoted through the combined operation of markets and the IP system hence are primarily ones serving the needs of market actors with economic clout. That is to say: among humankind, the welfare focussed on is the welfare of those whose desires IP-incentivised technology caters for. Without intervention (via subsidies, advance purchase commitments, etc) the technology promoted therefore will primarily serve the needs of a few – and in case it does serve the needs of all, it is likely available only to those who can afford it. Affordability in turn will depend on the availability of competing substitutes – which of course the IP system limits by virtue of the exclusivity it affords to the IP owner.

The technology incentivised and disseminated via the combination of markets and IP rights therefore is normative and political in that it reflects qualitative (what technology is developed) and distributive (who has access) value judgements. While this could be argued to primarily result from the social and economic systems within which technology is embedded (social determinism of technology), some argue quite convincingly that certain technologies can constitute ‘political phenomena in their own right’.27 This can be the case for technology that establishes long-lasting public infrastructures, is deployed at scale or sets standards – and in that way implements, reinforces and possibly also ‘locks in’ (i.e. safeguards against social change) value judgements.28 One might add that to the extent IP incentivises technological development and transfer, as a system, it is normative and political as well: in that IP continuously pushes humanity towards technology and technological solutions (rather than alternative ones – such as reducing consumption and checking one’s own wants). Technology in turn can reinforce specific value judgements or power relations and is then essentially tied to a pattern of power and authority. As a meta-system driving technological innovation, IP protection is promoting an approach that singles out technological solutions as the default solutions we are relying on – while history shows that despite its immense benefits, this is by no means justified without qualification.