Abstract

The right to knowledge and its property confront each other and, as we will see, it is not an abstract confrontation. The conflicts between fundamental rights are called “difficult and unusual cases” and require suprapositives instances of consideration which allow establishing priorities in each case. The patents are one kind of intellectual property that clashes with the right to knowledge and with the benefits of its results. In consequence, it is necessary to clarify why the right to knowledge must be prioritized upon the right to property of patents. This clarification can be done in terms of a strictly ethical reflection. Nevertheless, in this paper we’ll question the patents through the critical analysis of the definition and the justification used by the World Intellectual Property Organization as a methodology of investigation. This will let us argue about the stipulation of limits to the unlimited property or monopoly in the areas of knowledge which should be considered of public interest and be treated in consequence as they concern not only the well-being in terms of comfort, but also in terms of the satisfaction of basic needs. In 1994, during the neoliberal hegemony and its ideology of self-regulated markets, the situation of the intellectual property got worst because the knowledge was treated as a mere merchandise in international situations as the Trade-Related Aspects of Intellectual Property Rights of the WTO, imposed by those countries that wanted to maintain their comparatives benefits in terms of the international division of labour and the distribution of wealth. Since then, a lot of abuses have been committed by the dominant position, which is unacceptable from the point of view of the respect and protection of fundamental rights. Nowadays, there is a political confrontation between those countries that defend patents unconditionally –and its corporations- and those countries that need the promotion and the access to knowledge to deal with problems of basic social policies. In order to legitimate those policies it is necessary to understand why the right to knowledge must be prioritized over the right to copyrights. In consequence, we’ll use empirical and theoretical arguments to demonstrate that patents generate monopolies which delay or block researches. The competitive logic of patents demotivate researchers, discourage the institutions to start new studies and delay those in process. Then, it should be replaced with the public and cooperative logic of the “open architecture” of knowledge. This cooperative logic proposes a rejection of the pretentions of private appropriation of the knowledge referred to life, health, food and communication, among others. Meanwhile, it is for public institutions to patent their findings, so as to avoid private appropriation and to make them available at affordable prices.