Diverse sorts of intellectual property arrangements, including patents, trade secrets, and copyrights, have been used to protect scientific and technological innovations. On October 4th and 5th, the Center for the Study of Ethics in the Professions, under a grant from the National Science Foundation, hosted a conference on the ethical and social implications for privately sponsored research of property controls over scientific and technical innovations.

Truly innovative technology often fails to fit into the traditional categories of intellectual property. When this happens the categories may be modified. Computer software, for instance, resembles both a copyrightable manuscript and a patentable process and, falling between copyright and patent, may not be protect able by either means. In spite of certain legal difficulties, there have been moves to accommodate the computer industry by stretching the definition of copyright. This accommodation has led to variations in the law of copyrights, including copyrights on software that has been made only partially public.

On occasion whole new categories of intellectual property have been created to accommodate new technologies. In the beginning of this century, for instance, the development of plant varieties became a major research project. But a new variety of corn is not easily protected by its developer. Corn plants (unless the corn is a sterile hybrid) spring forth naturally from crop to crop and cannot be controlled through patents like manufactured machines. In an attempt to accommodate agribusiness, the United States has defined special sorts of protections over seed lines that apply only to agricultural developments.

When intellectual property policies change, research practices change to take maximum advantage of the new protections. This interrelation between intellectual property policy and research practices raises a number of ethical issues about the uses of alternative forms of protections.

We may have prima facie expectations about how intellectual property policies affect both society and the scientific community. Consider, for instance, that trade secret protections deprive the scientific community of the opportunity to study new technology. Since this is contrary to a presumed norm of openness in science, it is popularly argued that patent protections demand publication of the protected technology, and are thus socially and ethically preferable. Such prima facie arguments are, however, suspect. The claim that publication is encouraged by the patent laws requires empirical evidence from studies of research practices in alternative R&D environments. The argument moreover blurs over a history of changes in the legal definitions of patent and trade secret, and ignores the availability of alternative intellectual property arrangements.

In an attempt to avoid overly abstract discussion, the CSEP conference focussed discussion of ethical issues on detailed case studies. Each case study assessed the impact of one approach to intellectual property on a research field.

Duncan Davidson (lawyer in private practice) presented a study of recent copyright suits brought by IBM to protect software used in its personal computers. A major legal decision in 1983 following 1980 revisions in the copyright law has opened the way to copyrights on the programs that guide basic machine operations. Mr. Davidson looked at attempts by small companies to develop IBM clones and IBM compatible software in spite of IBM's copyrights.

Alan Lemin (research manager at Upjohn Corporation) discussed problems being faced by biotechnologists working under patent arrangements. A major issue is the requirement that genetic samples be publicly available (an adaption of the publication criterion for patents). This creates problems for patent holders who cannot easily detect when a competitor has violated the patent by improperly using the sample. The industry has responded with the use of distinctive licensing agreements.

Charles Weiner (historian at MIT) presented a history of controversies over patents that control medically important substances and techniques. The controversies have been particularly fierce when the research was done in and a patent is held by an academic institution. On the one hand there is a tradition of open access to medicines. On the other, patent seekers have expressed the desire to assure quality control over new medicines or to fund further basic research. Dr. Weiner looked into three such controversies, bringing out distinctive differences between them.

Fred Buttel and Jack Kloppenburg (sociologists at Cornell and Wisconsin) presented a complex history of recent attempts to protect newly developed organisms and plant varieties. Developers have used sui generis protections, trade secrets, and (just recently) patents. These shifts from one preferred protection to another have paralleled changes in breeding techniques and in the amount of funds committed by private business to development of plant varieties.

The case studies provided a point of departure for papers by Alan Goldman (philosopher at University of Miami), Patrick Kelly (lawyer at Monsanto), Sidney Winter (economist at Yale), Arthur Kutlik (philosopher at University of Vermont), Pamela Samuelson (lawyer at the University of Pittsburgh), Anne Branscomb (lawyer in private practice), John Palmer (economist at University of Western Ontario), and Gerald Dworkin (philosopher at University of Illinois/ Chicago). A select group of discussants, including representatives of research industries and government agencies, commented on the presentations.

Our policy decisions to provide proprietary protections for technological innovations are justified by a number of different public policy and ethical concerns. According to the US Constitution, patent and copyright policy is designed to promote progress in science and the useful arts. Official justifications have not been so plainly enunciated for other forms of protections, such as trade secrets. In all cases, however, there is considerable controversy about he actual social utility of any one intellectual property policy.

There was, for instance, a lively exchange at the conference over whether or not the turn by the computer industry to copyrights overly restricts the opportunity for new research in the industry. In order for a researcher to base furtherdevelopments on a competitor's work, he must look into his competitor's design. If the design is kept as copyrighted software, even the attempt to investigate the design may require copying it into readable form and violate the copyright. This contrasts with patent protections whereby reverse engineering is permitted (so long as no new machines are produced) and designs are publicly available for further development.

Duncan Davidson's case study drew evidence form the pattern of IBM suits to show that we can distinguish between fair and unfair study of copyrighted technology and that there is considerable fair research in progress. He claimed that research and development is taking place in a copyright environment just as it takes place in a patent environment. Pamela Samuelson's discussion paper argued to the contrary that present copyright policy is too restrictive for the health of the research enterprise. The CSEP conference brought practicing scientists, economists, philosophers, and representatives of the copyright office into this debate, which is too often fought just by lawyers.

In intellectual property, as with other social institutions, we can expect that policy changes have multiple effects, and that any one policy has a multiplicity of social utilities and disutilities. Both xpectations were verified by conference studies. Kloppenburg's and Buttel's study of the history of agribusiness shows how the redefinition of protections affected such matters as the proportion of privately to publicly funded research and the number of new seed lines in production. In a summary presentation, Dworkin noted that (though most participants preferred instrumental arguments to arguments from desert or entitlement) the conference considered at least ten different ends that intellectual property policy was alleged to promote. These include monetary incentive for new research, the ability to insure quality control over a technology, social and professional recognition for creative scientists, the preservation of openness in scientific research, and the possibility of generating funds for further research.

An intellectual property policy has many positive utilities, any one of which can be used for its ustification. It also has many disutilities and represents a choice among alternative policies with their own justifications. A sophisticated evaluation of an intellectual property arrangement takes note of a complex of ethically important effects and alternatives, and does not overemphasize just one value. Thus a shift in policy (e.g., over the time period for which a protection stays in force) or a shift in an industry from one preferred protection to another (e.g., in agribusiness from sui generis protections to patent protections) demands concern for a large number of different values.

Additional information about the conference content is available from Dr. Vivian Weil, the CSEP, IIT, Chicago, 60616.