Q&A Intellectual Property Law

Janice Denoncourt

• Publisher: Routledge
• Year: 2015
• ISBN:
  9781317568308
• Edition: 4
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

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1
General Themes in Intellectual Property Law

Essay-style questions are commonly used to invite the student to discuss a variety of themes in intellectual property (IP) 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 IP protection.

Another theme running through IP 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 IP protection. In general, the subject matter that may be protected by IP law regimes is increasing as new innovations are created which are deserving of property rights. The statutes that mainly govern IP law include the Copyright, Designs and Patents Act 1988, the Registered Designs Act 1949, the Patents Act 1977 and the Trade Marks Act 1994. Case law helps to clarify how the law is applied. The Intellectual Property Act 2014 made important changes to copyright, design and patent law (to improve efficiency and cost-effectiveness) and all the provisions should be in force by the end of 2015.

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 (TRIPS).

Checklist

Students should anticipate the debate about the following:

• ■ the nature and role of the IP legal regime to shape society;
• ■ the most significant types of IP protection: copyright, design, patents and trade marks and the doctrine of confidential information;
• ■ the impact of the TRIPS Agreement on domestic IP law regimes;
• ■ the advantages and disadvantages of IP law protection over valuable intangible property;
• ■ important new legislation such as the Intellectual Property Act (UK) 2014.

Question 1

Critically analyse and discuss the traditional justifications for the existence of the systems of intellectual property protection.

How to Read this Question

The examiner has made a statement and the instruction is to critically analyse and discuss it. What the examiner is looking for is an exploration of the constituent elements of the statement. Students should demonstrate to the examiner their understanding of the philosophical ‘justifications’ that justify the granting of monopolistic intellectual property (IP) rights to protect intangible property. It is important that students set out the ‘traditional’ justifications as referred to in the question and then consider any new justifications that may now apply.

How to Answer this Question

Exploring the types of traditional philosophical theories that underpin IP rights protection will need to take place at the outset. This will enable the student to identify the key theories and then critically analyse and discuss them in turn. The insights from the discussion can be applied to the modern UK IP law protection system. The structure below highlights the kind of content that could be discussed.

Answer Structure

This question requires the student to demonstrate an appreciation of the various theories for justifying the granting of monopolistic IP protection rights:

• ‘Natural rights’: John Locke’s Labour Theory (1632–1704);
• Natural rights and Art 27(3) of the Universal Declaration of Human Rights;
• Hegel’s Personality Theory (1770–1831);
• Economic justifications and the utilitarian theory;
• Consumer protection, technology transfer and social well-being;
• Concluding remarks.

Up for Debate

In 2014, the year the World Wide Web celebrated its 25th birthday, over half the planet’s population is connected to the Internet and 1.7 billion people are active smartphone and social media users. The increasing influence of electronic communication on human beings is undeniable. While the WWW is not subject to IP ownership, social media platforms, smartphones and apps are valuable forms of intellectual property. Currently, however, according to Professor Estelle Derclaye at the University of Nottingham,

Any work, design or invention can be protected if it is new, inventive and/or original, even if it does not enhance well-being. While the Internet, smartphones and Facebook make us more connected and social ties enhance well-being, empirical research however reveals that such technologies’ effects are overall more negative than positive. The question is thus posed whether the IPR framework should embed a ‘not-well-being-reducing’ condition for this type of invention and works as they do not fall into the morality clause.

Answer

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.

IP rights have three key features. First, they are property rights. Second, they are property rights in something intangible. Third, they protect innovation and creations and reward innovative and creative activity. All IP rights have one common feature: for any subject matter to be protected by an IP 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 – which 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 IP 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 IP 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 IP 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.

Philosophers have not always found IP rights to be justified in the form they currently take. Why are intangible property rights created? The existence of IP rights is usually justified by reference to one or more of the following philosophical theories.

(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 produce 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 IP 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 specification 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 up-front 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, Technology Transfer and Social Well-Being

Some IP 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).

In addition, IP systems facilitate the transfer of technology through foreign direct investment, joint ventures and licensing, which brings economic prosperity to lesser developed regions and countries. As innovation and creative industries remain overwhelmingly the province of the developed nations, the importance of international technology transfer for fostering economic development cannot be overstated. Most developing countries rely on imported technologies as a source of new productive knowledge. However, considerable follow-on innovation and adaptation take place over time, adding to the global body of knowledge.

In conclusion, all of the above theories are encapsulated in the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which attempts to set minimum standards of intellectual property law protection for World Trade Organization members. In essence, IP law attempts to strike a balance between the:

• conflicting interests of society as a whole in economic and cultural development; and
• interest of the individual to secure a ‘fair’ value for its intellectual effort or investment of capital or labour.

However, in the twenty-first century with the advent of the Internet and social media the time is ripe to question whether the current approach to granting monopolistic property rights is effectively a barrier to desirable social development and goals. Some argue that the IP rights legal framework should embed a ‘discretion’ to exclude from legal protection inventions and works that reduce human well-being.

This continual tension is at the heart of the development of the various IP law regimes and leads scholars to constantly evaluate the philosophical, economic and ethical justifications of the systems for granting IP rights.

Common Pitfalls

Students should avoid elaborating on the same argument repetitively, but rather try to cover several themes in order to show greater depth of knowledge and thus obtain more marks. The instructing words for the essay are ‘critically analyse’, so don’t forget to consider the impact of the direction of the law, i.e. the broader picture.

Aim Higher

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.

Question 2

One of the most significant modern intellectual property (IP) issues is the clash between the developing and the developed countries with respect to the level and effectiveness of monopolistic protection for intangible property. Critically discuss whether or not the international IP frameworks of the developed countri...