Essay questions are commonly used to invite the student to discuss a variety of themes in intellectual property law. We are surrounded in our everyday lives by intellectual property, but defining or describing it is no easy feat. The range of matter which falls within the scope of intellectual property is diverse and extensive.
Examples of things that can be protected by intellectual property include inventions, novels, works of art, photographs, musical scores, sound recordings, films, computer software, bio-engineered living organisms, trade secrets, know-how, invented characters and brand names. Examiners often set questions relating to the rationales or traditional justifications for the existence of intellectual property protection.
Another theme running through intellectual property law is that the systems are constantly adapting, whether in response to advances in technology or as a result of shifting perceptions about the appropriate reach of intellectual property protection. In general, the subject matter that may be protected by intellectual property law regimes is increasing as new innovations are created which are deserving of property rights.
Finally, a popular topic with examiners relates to the most important international agreement on the subject of intellectual property, the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement). Another topical subject is the forthcoming 2012 London Olympics and its associated intellectual property.
Critically analyse the traditional justifications for the existence of the systems of intellectual property protection.
- Natural rights’; John Locke’s Labour theory (1632–1704).
- Art 27(2) of the Universal Declaration of Human Rights.
- Hegel’s Personality theory (1770–1831).
- Economic justification and the Utilitarian theory.
- Consumer protection.
Legal and political philosophers have often debated the status and legitimacy of intellectual property. They ask, ‘Why should we grant intellectual property rights?’ The answer to this question is important, because society has a choice as to whether it chooses to grant such rights. It is also important because the decision to grant property rights in intangibles impinges on traders, the press and media and the public.
Intellectual property rights have three key features. Firstly, they are property rights. Secondly, they are property rights in something intangible. Thirdly, they protect and reward innovation and creative activity. All intellectual property rights have one common feature: for any subject matter to be protected by an intellectual property right, the minimum criteria for that form of property must be met.
On the one hand, the grant of private property rights in land and tangible resources is premised on the scarcity or limited availability of such resources and the impossibility of sharing. However, how can we justify the grant of exclusive rights over ideas and information – that are not scarce and can be replicated without any direct detriment to the original possessor of the intangible (who continues to be able to use the information)?
A central characteristic of intellectual property rights is that they are negative monopolistic rights. They exclude others from the use and exploitation of the subject matter of the right. However, all intellectual property rights expire at some point in time, except for confidential information, trade marks and geographical indications, which can be perpetual.
Intangible property rights are fundamentally different from rights attaching to tangible property such as a house, a car or a piece of jewellery. The subject matter of intellectual property rights, creative endeavour and inventions, necessarily has a link with knowledge and ideas. In economic terms, such matter is a public asset not easily owned by one person or group. The ability to exclude others from use or copying arises due to an artificial legal regime which grants an intangible property right to the inventor or creator.
As we will see, philosophers have not always found intellectual property rights to be justified in the form they currently take. Why are intangible property rights created? The existence of intellectual property rights is usually justified by reference to one or more of the following grounds.
(1) Natural Rights
One of the most basic justifications for intellectual property is that a person who puts intellectual effort into creating something should have a natural right to own and control what he creates. This is derived from the ‘Labour theory’ by the seventeenth-century philosopher John Locke. He argued that everyone has a property right in the labour of his own body, and that the appropriation of an unowned object arises out of the application of human labour to that object. There must remain objects of similar quality in sufficient quantity to supply others. In other words, ‘He who sows shall also reap’. Such an entitlement is recognised in Art 27(2) of the Universal Declaration of Human Rights, which states:
Everyone has the right to the protection of moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
In addition, according to Georg Hegel’s Personality theory, ‘Creation is an extension of its creator’s individuality or person, belonging to that creator as part of his or her selfhood’.
(2) To Encourage and Reward Innovation and Creation
Intellectual property rights serve as an incentive for the investment of time and capital in the research and development which are required to produced inventive and creative works. By providing the owner with exclusive property rights, he enjoys the benefit of the stream of revenue generated by exploitation of his intellectual property.
(3) To Encourage Dissemination of Information and Ideas
The existence of intellectual property laws encourages the disclosure and dissemination of information and widens the store of knowledge available in the community. This justification is commonly given for patents. The specifications of patented inventions are published by patent offices around the world and form a valuable source of advanced technical information.
(4) Economic Efficiency
Economic theorists justify the recognition of property rights in creative endeavour on the basis that it leads to more efficient use of resources. Innovation is an essential element in a competitive free market economy. Economists argue that if everyone was freely allowed to use the results of innovative and creative activity, the problem of ‘free riders’ would arise. Investors would be reluctant to invest in innovation. Competitors would just wait for someone else to create a product, which they would then copy at little upfront cost. Legal protection of intangible property rights creates a climate in which investors are stimulated to invest in research and development, as they will be guaranteed a competitive ‘first to market’ advantage for a period of time.
(5) Consumer Protection
Some intellectual property rights offer protection for consumers by enabling them to make informed choices between goods and services from different sources (for example trade marks and geographical indications).
(6) Technology Transfer
Intellectual property systems facilitate the transfer of technology through foreign direct investment, joint ventures and licensing.
In conclusion, all of the above theories are encapsulated in the TRIPS Agreement, which attempts to set minimum standards of intellectual property law protection for World Trade Organization members. In essence, intellectual property law attempts to strike a balance between:
- the conflicting interests of society as a whole in economic and cultural development; and
- the interest of the individual to secure a ‘fair’ value for its intellectual effort or investment of capital or labour.
This continual tension is at the heart of the development of the various intellectual property law regimes and leads scholars to constantly evaluate the philosophical, economic and ethical justifications of the systems for granting intellectual property rights.
Students should avoid elaborating on the same argument repetitively, but rather try to cover several arguments and themes in order to show greater depth of knowledge and obtain more marks. The instructing words for the essay are ‘critically analyse’ so do not forget to consider the impact of the future direction of the law, ie the broader picture.
Where possible, add depth to your essay answer by referring to the relevant legislation and international law such as the Universal Declaration of Human Rights and the Agreement on Trade-Related Aspects of Intellectual Property Rights.
There are few legal regimes that are so firmly involved with the promotion of investment and innovation as the laws governing the creation and exploitation of intellectual property. Yet, as a society, we are blissfully unaware of the significance of these laws and take little, if any, time or effort to consider how they might be made to work better … [T]he law of intellectual property has a pivotal role in providing both incentive and security for those engaging and investing in the innovative process.
Sam Ricketson, ‘The Future of Australian Intellectual Property Law Reform and Administration’ (1992) 3 AIPJ 1 at 3, 5.
This question requires a student to consider a quote by a famous intellectual property law academic and go on to demonstrate a knowledge of the range of intellectual property rights which exists and how they could better serve the interests of society, in particular as a means to encourage investment in new creative endeavours.
- Explain and define the term ‘intellectual property’.
- Analyse the rationale for granting statutory monopolies and give examples.
- Consider how the existing regime could ‘work better’ to promote security and investment in the innovative process and maximise the benefits for society as a whole.
Engaging and investing in the innovative process requires intellectual curiosity, effort and resources. In order to encourage innovation, society has adopted an intellectual property law rights regime. The term ‘intellectual property rights’ (IPRs) is used to describe the various rights that afford legal protection to innovative and creative endeavour, known in a business sense as ‘intangibles’. The rights that fall within the field of intellectual property have developed over time and are now quite wideranging and include:
- Patents. A patent is a statutory property right governed by the Patents Act 1977 that gives the patent owner the exclusive right to use certain inventions.
- Copyright. Copyright is a statutory right governed by the Copyright, Designs and Patents Act 1988 subsisting in original literary, dramatic, musical, artistic works, sound recordings, films, broadcasts, cable programs and the typography of published editions. Owners of copyright have several economic rights in their works, including the right to prevent unauthorised copyright and adaptations.
- Moral rights. Moral rights are statutory rights under the Copyright, Designs and Patents Act 1988 that authors retain in their works, irrespective of who owns the economic rights.
- Trade marks. Registered trade marks are statutory rights, as provided by the Trade Marks Act 1994. This gives the owner the exclusive right to use a distinctive sign (for example a name, symbol, tune, etc) in relation to a product or service.
- Geographical indications (or indications of source or appellations of origin). These are signs assuring consumers that produce comes from, or has been processed in a particular region renowned for the quality of such produce. Familiar examples include Champagne, Scotch whisky and Parma ham. The UK is bound by Art 22(2) of the TRIPS Agreement to prevent the use of any means in the designation or presentation of a good that indicates or suggests that the good in question originates in a geographical area other than the true place of origin in a manner which misleads the public as to the geographical origin of the good.
- Design. A registered design is a statutory right under the Registered Designs Act 1949 that gives the exclusive right to use certain features of the appearance of a range of products. The unregistered design right is the right under the Copyright, Designs and Patents Act 1988 to prevent copying of aspects of the shape or configuration of an article.
The common law and equity also continue to feature in the protection of intellectual property:
- Passing off. Goodwill is a form of intangible property consisting of the market’s perception of the quality and value of a business and its products, which can be protected by the common law tort of passing off. Passing off is a common law tort or cause of action used to prevent a third party from making misrepresentations which can damage the goodwill of another.
- Breach of confidence. The equitable doctrine of breach of confidence is used to protect certain confidential information which does not fall within the scope of the other intellectual property law systems set out above, against unauthorised disclosure or use.
Some intellectual property rights come into existence automatically (for example copyright, the design right), while others take effect only upon completion of registration (patents, registered trade marks and designs).
Over the centuries, various rulers of the United Kingdom and its governments have recognised that protecting creative endeavour is crucial to the promotion of innovation and entrepreneurship. Not only does it provide an incentive to engage in the innovation process, it also provides security for investment in innovation. It does so by providing exclusive rights or a monopoly, in some cases for a limited duration. Following the Industrial Revolution, the United Kingdom derived the greater part of its wealth from exports of manufactured goods, and this led to a strengthening of the ‘industrial’ property law system. There is a correlation between industrialisation and patent protection. The ‘industrial property’ system has since been transformed into an ‘intellectual’ property system with advances in technology.
However, the goalposts have moved. The modern industries of the twenty-first century – information technology, biotechnology, pharmaceuticals, communications, education and entertainment – are all knowledge-based, requiring the system to be updated to work better. TV formats, image rights, character merchandising and franchising all have significant commercial value which the traditional intellectual property system is struggling to adequately protect. If the United Kingdom is to successfully participate in the global information economy of the new millennium, the importance of the role of intellectual property in addressing the needs of these modern forms of intangible property will need to be better understood and have greater attention accorded to, ensuring that the intellectual property laws are indeed effective in promoting innovation. In some cases, new sui generis legislation is required to grant statutory rights to promote certainty for the investment community to engage in the innovative process. A pressing intellectual property law issue in recent times is copyright infringement in the digital age.
To this end in 2010, an independent review of how the intellectual property framework supports growth and innovation was carried out. The review was chaired by Professor Ian Hargreaves and assisted by a panel of experts who consulted a wide variety of stakeholders. The Review panel had a remit to look at the barriers the IP system may present, with a particular emphasis on new Internet companies. An independent report, entitled ‘Digital Opportunity A Review of Intellectual Property and Growth