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Llm lecture ipr concept and theories [compatibility mode]


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Llm lecture ipr concept and theories [compatibility mode]

  1. 1. Introduction to IPR Law LLM PAPER-I - Introduction to IPR PAPER-IPR concept & TheoriesbySANJEEV KUMAR CHASWAL,IPR Attorney and Advocate
  2. 2. IPR concept & TheoriesThe twenty-first century will be the century of knowledge, indeed the twenty-century of the intellect. A nation’s ability to translate knowledge into intellect.wealth and social good through innovations will determine its future. future.Thus innovations hold the key to the creation as well as processing ofknowledge.knowledge. Consequently issues of generation, evaluation, protectionand exploitation of intellectual property would become criticallyimportant all over the world. world.The term "intellectual property" refers to a loose cluster of legal doctrinesthat regulate the uses of different sorts of information. The law of information.copyright protects "original forms of expression" -- novels, movies,musical compositions, computer software, etc. Patent law protects etc.inventions -- machines, processes, (also) computer software, etc. etc.Trademark law protects words and symbols that identify for consumersspecific goods and services -- brands of cereal, clothing, automobiles, etc. etc.Trade-Trade-secret law protects information that companies have tried butfailed to conceal from their competitors -- soft-drink formulas, soft-confidential marketing strategies, etc. The "right of publicity" protects etc.celebrities interests in their images and identities. identities.
  3. 3. Some theorists begin with the postulate that a person who labors uponresources that are either un-owned or "held in common" has a natural un-property right to the fruits of his or her efforts - and that the state has aduty to respect and enforce that natural right. These ideas, originating in right.the writings of John Locke, are widely thought to be especially applicableto the field of intellectual property, where the pertinent raw materials(facts and concepts) do seem in some sense to be "held in common" andwhere (intellectual) labor seems to contribute so importantly to the valueof the finished product. product.In recent years, a growing number of legal theorists have attempted eitherto make sense of this complex field or to propose ways in which it shouldbe reformed. Some draw inspiration from the work of the Kant and Hegel, reformed.from which they derive the propositions(i) that private property rights are crucial to the satisfaction of somefundamental human needs or interests and(ii) that policymakers should thus strive to select the set of entitlementsthat most conduces to human flourishing.From these standpoints, intellectual property rights may be justified eitheron the ground that they shield from appropriation or modification artifactsthrough which authors and artists have expressed their "wills" or on theground that they create social and economic conditions conducive tocreative intellectual activity, which in turn is important to human
  4. 4. A third group takes the view that property rights in general -- and intellectual-property rights in particular -- can and should be shaped so as to help foster theachievement of a just and attractive culture. Scholars who work this veintypically draw inspiration from an eclectic cluster of political and legal theorists,including Jefferson, the early Marx, the Legal Realists, and the variousproponents (ancient and modern) of classical republicanism.The premise of the last -- and most popular -- of the approaches is the familiarutilitarian guideline that a lawmakers beacon when shaping property rightsshould be the greatest good of the greatest number. In other words, he shouldstrive to select a set of entitlements that (a) induces people to behave in waysthat increase socially valuable goods and services and (b) distributes thosegoods and services in the fashion that maximizes the net pleasures people reapfrom them,Intellectual property can be characterised as the property in ideas or theirexpression. It is a creation of the mind, for example, a technological innovation,a poem, or a design. It protects the rights of individuals and businesses whohave transformed their ideas into property by granting rights to the owners ofthose properties. Intellectual property can be classified into the following fourcategories: patents for inventions, copyrights for literary works, trademarks, andtrade secrets.We shall briefly define the various kinds of IPRs:-Patents and Design: Copyrights, Trademarks: Trade secrets
  5. 5. A patent is a legal monopoly granted for a limited time to the owner of aninvention.invention. In many countries, an inventor of a new product or processcan apply for a patent giving the holder the exclusive right for a numberof years to produce the good or use the process. This right can be used process.either through their own business or by charging a license fee. The fee.earliest known patent on an invention was awarded in Florence in 1421to Filippo Brunelleschi for a barge with hoisting gear capable oftransporting marble. In Britain the first such patent was awarded in 1449 a Flemish glassmaker for a method of making stained glass windows. windows.During the sixteenth century the English monarchs discovered that thesale of monopoly privilege could be very lucrative and granted patentson an indefinite basis to all manners of trades and manufactures,regardless of their novelty. Even the trade in commodities such as novelty.leather, salt, iron, and paper was patented. patented.The consequent high prices of these goods led to accusations that suchperpetual monopolies were unjust.unjust. Responding to this criticism,numerous patents were revoked. For example, the monopoly on the revoked.production of playing cards granted to Edwin Darcy was rescinded. rescinded.
  6. 6. Copyrights & Trademarks Copyrights: Copyrights: Copyright is the exclusive right granted by statute to the author of the works to reproduce dramatic, artistic, literary or musical work or to authorise its reproduction by others. The others. copyright persists for a definite period after the author’s death after which it can be sold or inherited. As such it protects the inherited. expression of the idea rather than the idea itself. It also extends itself. to films or television. Copyrights comply with international norms television. like Berne Convention, Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement and World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT). (WCT). Trademarks: Trademarks: Trademark means any symbol, logo, or name used to enable the public to identify the supplier of goods. Trademarks goods. can be registered, which gives the holder the exclusive right to use them. them. Manufacturers, distributors, or importers may register them. them. They can be sold and are an important form of commercial property. They are poorly enforced in some Least Developed property. Countries (LDCs) which is a serious source of international friction
  7. 7. Tom Palmer critically analyses three distinct arguments in favourof intellectual property rights. That are as follows: rights. follows:Moral Desert TheoryPersonality TheoryUtilitarian TheoriesAn Alternative Model: The Libertarian Utopia Model:Moral Desert Theory: According to Locke, “every man has a property in Theory:his own person”, i.e. the fruits of a man’s labour belongs to him. In this him.scheme intellectual property would seem to follow naturally, since theindividual must surely be permitted the fruits of his mental and physicallabour.labour. But Leggett points out that if you assert an exclusive right to aparticular idea you cannot be sure the very same idea did not at thesame moment enter some other mind. Thus these rights can only be mind.justified if they are implemented in such away that rights of an individualare protected without infringing on another. another.Personality Theory: According to Kant and Hegel, if one’s artistic Theory:expressions are synonymous with one’s personality, then they aredeserving of protection just as much as the physical person is deservingof protection since in a sense they are a part of that physical person. person.However Palmer counters this by saying that if a work of art were part ofan individual’s personality then they would cease to exist after the persondied.died.
  8. 8. Utilitarian Theories: Advocated by economists such as Bentham and Theories:Mill and assume that the objective of any policy should be the attainmentof the greatest good for the greatest number. However utilitarian number.arguments can be cut for or against the claims of intellectual propertyrights.rights. The utility gains from increased incentives for innovation must beweighed against the losses incurred from monopolisation and theirdiminished diffusion. Thus the problem arises as the benefits gained diffusion.cannot be measured against the losses suffered. suffered.Another argument against intellectual property rights and in particularpatents is that it creates artificial scarcity through a monopoly on variousproducts (which implies a restricted output and higher prices). For prices).instance, from its establishment in 1875, the US company AT & T 1875,collected patents in order to ensure its monopoly on telephones. It telephones.slowed down the introduction of radio for about 20 years. However, it years.can be argued that patents and copyrights are not monopolies becausemonopoly is the use of force to constrain others in the use of what would“in the absence of such law be open to all,” while inventions and the likecould not be said to exist before their creation. The proponents of patents creation.and copyrights reasoned that an exclusive right over an innovation couldnot be a monopoly, because prior to its invention it was not a “liberty thatthey had before.” Robert Nozick argues on this basis that patents and before.copyrights do not run a foul of the “Lockean Proviso”: “An inventor’s Proviso”:
  9. 9. There are no easy and precise answers to this issue. Thus for the purpose issue.of examining the validity of these rights, let us explore a hypotheticalsituation where intellectual property rights do not exist at all, and analysewhether such a system would sustain itself or collapseAn Alternative Model: The Libertarian Utopia Model:An intriguing analysis in the field intellectual property rights is theconception of a world where no regulations or laws to protect intellectualproperty exist. All creations of the mind such as inventions, literary works, exist.innovations are freely accessible and can be utilised by anyone. any anyone.libertarian thinkers such as Kinsella believe that any institution orargument such as the question of intellectual property rights whichattempts to legitimise or calls for the continued existence of the state isfallacious.fallacious. If something can only be done or protected by the state, then itstands to (libertarian) reason that, that something should not be done orprotected at all. They believe that it is indisputable that anything that one all.produces, with their own hands and/or with their own capital incollaboration with their creative mind, is their exclusive property. But once property.such things are ready to be sold, they should be subject to the competitionof the free market, unhampered by claims of intellectual property rights; to rights;allow the inventor of a device to smash competition in the marketplace isto allow him to fester in mediocrity, while someone smarter could haveimproved on the invention, benefiting everyone. everyone.
  10. 10. Benjamin Tucker postulated that property arose as a means of solving conflictswithin society, which were caused by scarcity. In the universe of human reality,almost all goods were scarce, and that fact led to an inevitable competitionamong human beings for their use. For example, since two individuals could notuse the same chair in the same manner at the same time, it was necessary todetermine who should use the chair. The concept of property resolved thisproblem. Intellectual property cannot exist because an idea is not property; it isnot scarce. The very institution of property came about for the purpose ofassigning scarce goods to individuals. An idea in my head is my property,because it is part of my mind. But the instant a person utters it, the next personto hear it also owns the idea, as it is now part of their mind. We may both "own"the idea without diminishing it in either of our brains.The libertarian contention is that the market will find a happy medium betweenmanufacturers protecting their products from copying and the consumers doingthe copying. For example, while technology provides ways to trump IP laws, italso creates more ways to protect the creations of writers and artists. To protecttheir software, companies should hide their source codes; much like Microsoftdoes to keep other companies from producing Windows. To keep consumersfrom copying software to give away to friends or to sell, they should usetechnology that makes it impossible to "pirate" the software or a file. Theyshould use technology that does not allow the owner of a CD to make an MP3 outof a track, or possibly, allow the download of a song in a format that allows onlytransfer, not duplication. So in the case where someone buys a new computer,
  11. 11. All the world’s products are modeled after something that came before.From clothing to buildings to, yes, writing, there is always a predecessor. Todeny someone the right to improve upon another’s creation, manifested inthe former’s personal property, is to contradictorily support intellectualproperty rights over real and personal property rights,Although the above system in theory seems ideal, to enforce it in realitywould be a formidable task. We must recognise that laws (in this contextproperty law) are the result of a moral consensus among people.Intellectual property laws did not evolve in nature; people living in a civilsociety gradually converged to them. So if the majority of the people didnot approve of these laws they would not exist. Secondly, as we have seenin the past, the market has devised ways to prohibit piracy and imitations.But with the rapidly exploding technology, individuals would work aroundthem and devise ways to duplicate which ultimately would lead to chaos,and the society would ultimately resort to a system of enforcing intellectualproperty rights (legally or by mutual consent).Finally, it is incorrect to argue that the scarcity of tangible property is thesole explanation for property rights and as intangible property is inabundance, there is no basis for protecting an intellectual property. Theurge to own property is inherent in man as it provides security and a senseof identity, which is undeniable.
  12. 12. Moreover although ideas as such may not be finite, revolutionary ideas that canbe translated to profitable concrete works are, and thus need to be guarded.After evaluating the above arguments the conclusion we have come to isthat a system of intellectual property rights are justified as long as they donot violate another’s parallel right to intellectual property. Althoughrealistically, the development of such a system is a daunting task due to itsvarious intricacies. It is important to realise that there are no clear-cut, easyanswers for this debate.This debate is thorny because two important principles clash: legalprotection for intangible works conflicts with the free expression andexchange of ideas. IP disputes have always involved trade-off betweenthese two fundamental principles. Thus the best solution is to minimise the opportunity cost of the trade off.A system whereby an individual is secure in the knowledge that hisintellectual property shall be protected without infringing on someone else’sright to his intellectual property. One of the systems that can achieve thisobjective to a large extent is the use of copyrights instead of patents, whichwas originally suggested by Murray N Rothbard
  13. 13. The plaintiff must prove that the defendant stole the formers creation byreproducing it and selling it himself in violation of his or someone elses contractwith the original seller. But if the defendant independently arrives at the samecreation, the plaintiff has no copyright privilege that couldprevent the defendant from using and selling his products. But patent then hasnothing to do with implicit theft. It confers an exclusive privilege on its firstinventor, and if anyone else should, quite independently, invent the same orsimilar product, the latter would be debarred by force from using it inproduction.This does not seem just as two individuals might independently come up withthe same invention that requires huge investments and only one can obtain apatent due to several reasons such as timely appeal, political lobbying or anyother coincidental factor. This is fair neither on the consumer nor on theproducer. Firstly by restricting the amount of output and hence higher pricesand secondly if one producer obtains the patent then the other cannot produce.Thus patents seem highly unreasonable in this regard.The Rothbardian SolutionPatents and copyrights are both property rights in innovations. But there is acrucial difference in their legal enforcement. If an author or a composerbelieves his copyright is infringed and he takes legal action, he must prove thatthe defendant had "access" to the infringed work. If the defendant producessomething identical to the plaintiffs work by mere chance, there is noinfringement. Copyrights in other words, have their basis in implicit theft.
  14. 14. Thus as a solution the patent protection now obtained by the inventor could beachieved in the free market by a type of copyright protection. In the free market,the inventor could mark the copyright status on his product and anyone who buysthe product does it on the condition that he would not reproduce and sell such amachine for profit. The patent is incompatible with the free market to the extentthat it goes beyond the copyright. The man, who has not bought the machine andhas independently arrived at the same invention, will in a free market be perfectlyable to use and sell his invention. Thus this would extend a copyright-type ofprotection to the subject matter of patents as well. Thus, argues Rothbard:suppose that Brown builds a better mousetrap and sells it widely, but stamps eachmousetrap “copyright Mr Brown.” What he is then doing is selling not the entireproperty right in each mousetrap, but the right to do anything with the mousetrapexcept to sell it or an identical copy to someone else. The right to sell the Brownmousetrap is retained in perpetuity by Brown.The Rothbardian system resolves the debate regarding intellectual property rightsto a very large extent as it satisfies the Moral Desert theory while resolving theobjections to it. However this system has inherent flaws, which are not conceptualbut rather pertain to its enforcement. Some of these flaws are as follows:It does not strictly define what qualifies as "copying." For instance, a person canobtain the particular piece of work, alter very trivial aspects of it, and then sell inthe market. It is very tough to differentiate between an improvement and a merealteration of the original work.
  15. 15. Moreover, Rothbard advocates the copyright to exist in perpetuity that isunfair as although it is generally presumed that ideas and intellectualproperty are not scarce, but ideas that materialise into profitable products orprocesses are few. Thus perpetual copyrights drastically reduce the scopeof innovation and enhancement of existing ideas.- It is very difficult to prove that a particular idea was stolen in case ofviolation of a Copyright. Fortunately, appropriate and precise laws that areenforced efficiently can overcome all the above stated problems.The large majority of the writers who have attempted economic analyses ofintellectual property have relied, explicitly or implicitly, on the "Kaldor-Hicks"criterion (also known as the "wealth-maximization" criterion or "potentialpareto superiority") which counsels lawmakers to select a system of rulesthat maximizes aggregate welfare measured by consumers ability andwillingness to pay for goods and services. They disagree sharply, however,concerning the implications of that criterion in this field. Three quite differentarguments -- commonly thought to be incompatible -- dominate theliterature.
  16. 16. Economic Analysis of Intellectual Property1. Incentive Theory2. Optimizing Patterns of Productivity.3. Reducing Rent-Dissipation1. Incentive Theory. The first and most common of the three tacks argues that the optimal doctrine is the one that maximizes the difference between (a) the present discounted value to consumers of the intellectual products whose creation is induced by holding out to authors and inventors the carrot of monopoly power and (b) the aggregate losses generated by such a system of incentives (the consumer surplus sacrificed when authors and inventors price their creations above the marginal costs of producing them, the "administrative costs" of interpreting and enforcing intellectual-property rights, etc.) In rougher terms, incentive theory urges a lawmaker to establish or increase intellectual-property protection when doing so would help consumers by stimulating creativity more than it would hurt them by constricting their access to intellectual products or raising their taxes. Here are two illustrations of this general approach, both from the pens of William Landes and Richard Posner
  17. 17. That the distinctive characteristics of most intellectual products are that they are easilyreplicated and that enjoyment of them by one person does not prevent enjoyment ofthem by other persons. Those characteristics create a danger that the creators of suchproducts will be unable to recoup their "costs of expression" (the time and effortdevoted to writing or composing; the costs of negotiating with publishers or recordcompanies, etc.), because they will be undercut by copyists who bear only the low"costs of production" (the costs of printing, binding, and distributing books; the costsof "burning" and packaging compact disks, etc.) and thus can offer consumersidentical products at very low prices. Awareness of that danger will deter creators frommaking socially valuable intellectual products in the first instance. How might we avoidthis economically inefficient outcome? By allocating to the creators (for limited times)the exclusive right to make copies of their creations, thereby enabling them to chargeconsumers monopoly prices. All of the various alternative ways in which creators mightbe empowered to recover their costs, Landes and Posner contend, are, for one reasonor another, more wasteful of social resources. This utilitarian rationale, they argue,should be -- and, for the most part, has been -- used to shape specific doctrines withinthe field. The primary economic benefits of trademarks, they contend, are (1) thereduction of consumers "search costs" (because its easier to pick a box of "Cheerios"off the grocery shelf than to read the list of ingredients on each container, and becauseconsumers can rely upon their prior experiences with various brands of cereal whendeciding which box to buy in the future) and (2) the creation of an incentive forbusinesses to produce consistently high quality goods and services (because theyknow that their competitors cannot, by imitating their distinctive marks, take a freeride on the consumer good will that results from consistent quality).
  18. 18. Trademarks, Landes and Posner claim, also have an unusual ancillary social benefit:they improve the quality of our language -- by increasing our stock of nouns (andthus economizing on communication costs); by creating new, useful, generic words(e.g., "aspirin" and "brassiere"); and by "creating words or phrases that people valuefor their intrinsic pleasingness as well as their information value." To be sure,trademarks can sometimes be socially harmful -- for example by enabling the firstentrant into a market to discourage competition by appropriating for itself anespecially attractive or informative brand name. Awareness of these benefits andharms should (and usually does), Landes and Posner claim, guide legislators andjudges when tuning trademark law; marks should be (and usually are) protectedwhen they are socially beneficial and not when they are, on balance, deleterious.The general principle that underlies these various arguments is that maximization ofnet social welfare should be lawmakers exclusive objective when shapingintellectual-property law.2. Optimizing Patterns of Productivity. Many years ago, Harold Demsetz arguedthat the copyright and patent systems play the important roles of letting potentialproducers of intellectual products know what consumers want and thus channellingproductive efforts in directions most likely to enhance consumer welfare. In the pastdecade, a growing group of theorists have argued that recognition of this functionjustifies expanding the copyright and patent systems. In Paul Goldsteins words:The logic of property rights dictates their extension into every corner in whichpeople derive enjoyment and value from literary and artistic works. To stop short ofthese ends would deprive producers of the signals of consumer preference thattrigger and direct their investments.
  19. 19. Wont adoption of this strategy impede public dissemination of intellectualproducts? Not at all, say the proponents of this approach. Sales and licenses willensure that goods get into the hands of people who want them (and are able topay for them). Only in the rare situations in which transaction costs would preventsuch voluntary exchanges should intellectual-property owners be denied absolutecontrol over the uses of their works -- either through an outright privilege (likethe fair-use doctrine) or through a compulsory licensing system3. Reducing Rent-Dissipation. The final approach is related to butdifferentiable from the second. Its objective is to eliminate or reduce the tendencyof intellectual-property rights -- and patent rights in particular -- to fosterduplicative or uncoordinated inventive activity. Economic waste of this sort canoccur at three stages in the inventive process. First, the pot of gold representedby a patent on a pioneering, commercially valuable invention may lure aninefficiently large number of persons and organizations into the race to be thefirst to reach the invention in question. Second, the race to develop a lucrativeimprovement on an existing technology may generate a similar scramble forsimilar reasons at the "secondary" level. Finally, firms may try to "invent around"technologies patented by their rivals -- i.e., to develop functionally equivalent butnon-infringing technologies -- efforts that, although rational from the standpointof the individual firm, represent a waste of societys resources. In recentyears, several economistshave devoted themselves to identifying possible reformsof intellectual property law (or of related doctrines, such as antitrust law) that
  20. 20. Serious difficulties attend efforts to extract from any one of these approachesanswers to concrete doctrinal problems. With respect to incentive theory, theprimary problem is lack of the information necessary to apply the analytic. Towhat extent is the production of specific sorts of intellectual productsdependent upon maintenance of copyright or patent protection? With respect tosome fields, some commentators have answered: very little; other monetary ornonmonetary rewards (profits attributable to lead time, prestige, tenure, thelove of art, etc.) would be sufficient to sustain current levels of production evenin the absence of intellectual-property protection. Other commentators sharplydisagree.The truth is that we dont have enough information to know who is right -- andare unlikely ever to acquire sufficient information. Even if we were able tosurmount this enormous hurdle -- and concluded that society would be betteroff, on balance, by supplying authors and inventors some sort of special reward-- major sources of indeterminacy would remain. Is an intellectual-propertysystem the best way of providing that reward or would it be better (as StevenShavell and Tanguy van Ypersele have recently argued) for a governmentagency to estimate the social value of each innovation and pay the innovatorsthat sum out of tax revenues? If the former, how far should creatorsentitlements extend? Should they include the right to prepare "derivativeworks"? To block "experimental uses" of their technologies? To suppress theirinventions? Determining which set of rights would be optimal well beyond our
  21. 21. Criticism of IPRThe term itself :Free Software Foundation founder Richard Stallman argues that,although the term intellectual property is in wide use, it should berejected altogether, because it "systematically distorts and confusesthese issues, and its use was and is promoted by those who gain fromthis confusion." He claims that the term "operates as a catch-all to confusion. catch-lump together disparate laws [which] originated separately, evolveddifferently, cover different activities, have different rules, and raisedifferent public policy issues" and that it creates a "bias" by confusingthese monopolies with ownership of limited physical things, likeningthem to "property rights“. Stallman advocates referring to copyrights, rights“.patents and trademarks in the singular and warns against abstractingdisparate laws into a collective term. term.Lawrence Lessiq, along with many other copyleft and free software Lessiq,activists, have criticized the implied analogy with physical property (likeland or an automobile). They argue such an analogy fails because automobile).physical property is generally rivalrous while intellectual works are non- non-rivalrous (that is, if one makes a copy of a work, the enjoyment of thecopy does not prevent enjoyment of the original)
  22. 22. Limitations:Some critics of intellectual property, such as those in the free culturemovement point at Intellectual monopolies as harming health, preventingprogress, and benefiting concentrated interests to the detriment of themasses and argue that the public interest is harmed by ever expansivemonopolies in the form of Copyright extensions, softwarepatents and business method Patents .The committee on economic, social and cultural Rights recognizes that"conflicts may exist between the respect for and implementation of currentintellectual property systems and other human rights“. It argues thatintellectual property tends to be governed by economic goals when it shouldbe viewed primarily as a social product; in order to serve human well-being,intellectual property systems must respect and conform to human rightslaws. According to the Committee, when systems fail to do so they riskinfringing upon the human right to food and health, and to culturalparticipation and scientific benefitsSome libertarian critics of Intellectual property have argued that allowingproperty rights in ideas and information creates artificial scarcity andinfringes on the right to own tangible property.The Stephan Kinsella uses the following scenario to argue this point:Imagine the time when men lived in caves. One bright guy—lets call himGalt-Magnon—decides to build a log cabin on an open field, near his crops.
  23. 23. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent ahouse, according to IP advocates, would have a right to prevent others frombuilding houses on their own land, with their own logs, or to charge them a feeif they do build houses.It is plain that the innovator in these examples becomes a partial owner of thetangible property (e.g., land and logs) of others, due not to first occupation anduse of that property (for it is already owned), but due to his coming up with anidea. Clearly, this rule flies in the face of the first-user homesteading rule,arbitrarily and groundlessly overriding the very homesteading rule that is at thefoundation of all property rights.Other criticism of intellectual property law concerns the tendency of theprotections of intellectual property to expand, both in duration and in scope.The trend has been toward longer copyright protection (raising fears that itmay some day be eternal In addition, the developers and controllers of items ofintellectual property have sought to bring more items under the protection.Patents have been granted for living organisms,(and in the US, certain Livingorganisms have been patentable for over a century) and colors have beentrademarked. Because they are systems of Government granted monopoliescopyrights, patents, and trademarks are called Intellectual monopoly privileges,(IMP) a topic on which several academics, including Birgitte Andersen andThomas Alured Faunce have written.
  24. 24. Marxist criticism Capitalism attempts to turn everything into private property, the air we breathe, the water we drink and even ideas. Attempts of capitalists to ideas. make money from “their” intellectual property are like the highway robbery of medieval aristocrats who levied tolls on traders and restricted the growth of commerce and prosperity. Today private property and the prosperity. profit motive are the biggest threat to our enjoyment of new ideas, our progress and even our existence as a species. species. Capitalism is a greedy system. It seeks profit everywhere and turns system. everything into private property. In doing so, it inevitably destroys all property. those things we hold in common - the “commons”. The world is “commons”. dominated by capital. Wage labourers do the work and turn the profits capital. for capital because they have no other way of making a living. And thats living. because in the past we were disinherited from our “commons”, which were enclosed by the rising capitalist class. class. So what? Isnt that all in the past? Well, actually no. Consider the no. Internet. Internet. What is it but a vast intellectual commons, a “common carrier” of ideas? Clean air is a common, as is clean water. The Antarctic, the water. Brazilian rain forests and wildlife are all commons, and all under threat. threat.
  25. 25. In Capital, Marx explains the process of primitive accumulation, whichestablished the preconditions for capitalist production. On the one hand, men gained fortunes in money rather than land or slaves. On the slaves.other hand, the common people were reduced to property lessproletarians, forced to sell their labour power in order to live. live.Marx uses Britain as his example of primitive accumulation. Part of this accumulation.expropriation was the separation of the people from the commons. commons.Medieval and early modern villages had, at their centre, the crop fields. fields.All around were “wastes”, which supplied wood for fuel and buildingmaterials, running water and fishing rights and rough grazing for theiranimals.animals. The villagers could not make a living without these commons. commons.Yet the coming of capitalism saw the enclosures, the seizure of theselands from the villagers and their conversion into the private property ofthe rich. rich.“Communal property - which is entirely distinct from the state propertywe have just been considering - was an old Teutonic institution whichlived on under the cover of feudalism. We have seen how its forcible feudalism.usurpation, generally accompanied by the turning of arable into pastureland, begins at the end of the fifteenth century and extends into thesixteenth.sixteenth. But at that time the process was carried on by means ofindividual acts of violence… violence…
  26. 26. The advance made by the eighteenth century shows itself in this, that thelaw itself now becomes the instrument by which the peoples land isstolen…stolen… The Parliamentary form of the robbery is that of Bills forenclosure of Commons, in other words decrees by which landownersgrant themselves the peoples land as private property, decrees ofexpropriation of the people. people.Capitalism had to fight long and hard against what the historian E.P.Thompson calls the “moral economy”, a code of ethics and practiceradically at odds with capitalist behaviour. (E.P. Thompson - Customs in behaviour. (E.common, Penguin Books, 1993). This piece of doggerel from the 1993)seventeenth century shows the hatred felt by common people against theenclosure movement: movement:“The law hangs the man and flogs the woman, Who steal the goose fromoff the common, But leaves the greater villain loose, Who steals thecommon from the goose.” goose.A similar process of expropriation took place in the Scottish highlands inthe years after Culloden. Marx explains the situation. Culloden. situation.“The Highland Celts were organized in clans, each of which was theowner of the land on which it was settled. The representative of the clan, settled.its chief or great man was only the titular owner of this property, just asthe Queen of England is the titular owner of all the national soil
  27. 27. Economics” continues to justify the theft of the commons. The classic piece Garrett Hardins article, The tragedy of the commons (Science, 162, 162,1968, pp. 1243-1248)1968, pp. 1243-1248). Hardin was a Professor of Human Ecology at theUniversity of California. He is not one for empirical enquiry on this subject. California. subject.He prefers to appeal to the reader to perform a so-called thought so-experiment.experiment.Hardin could have made a living as economic adviser to the Duchess ofSutherland! Like his predecessors, Hardin pleads efficiency gains as thejustification for enclosure. In reality they were a form of class struggle, enclosure.intended to make the poor incapable of scraping any kind of livingindependently of the rich, and utterly dependent on them to earn a crust. crust.Hardins theorem is a fable from beginning to end. The commons were not end.actually open to all and sundry to graze their animals upon. This right was upon.reserved to people known as the commoners, usually the local villagers. villagers.Even the commoners grazing rights were strictly regulated by officials,known in Britain as beadles, in order to prevent overgrazing. “Historians… overgrazing. “Historians…agree that there is no evidence that common land use was itselfunsustainable.unsustainable.”Despite the lack of evidence, Hardins fable has become the acceptedwisdom among the fraternity of economists. Hardin is a disciple of the economists.economist Thomas Malthus. Malthus believed that growing population Malthus.pressed against finite natural resources. His was a powerful reactionary resources.
  28. 28. The only thing the working class could therefore do to improve their lotwas to tie a knot in it! (Marx wrote extensively against Malthus, but wewill not deal with the arguments here.) here.The extreme examples of external effects on economic activity are publicgoods.goods. This refers to a narrow range of products with two characteristics. characteristics.They are non-rival in consumption and non-excludable. Public goods are non- be compared with private goods. These are rival in consumption. If I goods. a KitKat, you cannot eat the same KitKat. I can also deprive you of KitKat, KitKat.access to my KitKat by buying it and keeping it in my pocket - that is, Ican exclude you from it. it.There is non-rivalry in consumption because there is zero cost of non-reproduction for another user. The logic of this in neoclassical welfare user.economics is that the good should be provided free. After all, a charge is free.only levied in neoclassical theory because supplying an extra unit involvesadditional real cost. cost.The problem of free provision is obviously that there is no incentive forthe capitalist to supply the good at all, so capitalism systematicallyundersupplies public goods and markets fail. fail.
  29. 29. The second characteristic of a public good is that the provider should beunable to prevent users from free riding on their product and capturingthe benefits without paying. The classic example is the light from a street paying.light or lighthouse. So how can a capitalist sell light for profit? lighthouse.An example of this intellectual property is copyright. Charles Dickens were very popular in the USA in the nineteenth century, but hedidnt receive a penny from the pirated editions published there. But the there.principle was that Dickens wrote the books; he deserved the reward. That books; reward.principle has been turned upside down by the new privatisers who areusing intellectual property laws to steal our intellectual commons. A commons.classic example is the articles academics write for learned journals. You journals.might think they get paid for their efforts. Not a bit of it. They assign the efforts. it.copyright to the publisher. They cant even distribute the article theyve publisher.written to their own students without permission. permission.Obscenely, the ownership of things has been extended to life forms. The forms.US firm RiceTec has laid claim to own basmati rice. Everyone knows that rice.this rice has been grown for centuries in the shadow of the Himalayas inIndia and Pakistan and was developed long ago by unknown peasants. peasants.These peasants would have regarded this superior strain of rice as a giftto future generations. generations.
  30. 30. IPR & Third World Concern & CriticismTwenty first century will be the century of knowledge, indeed the centuryof mind. Innovation is the key for the production as well as processing of mind.knowledge.knowledge. A nations ability to convert knowledge into wealth and socialgood through the process of innovation will determine its future. In this future.context, issues of generation, valuation, protection and exploitation ofintellectual property (IP) are going to become critically important allaround the world. Exponential growth of scientific knowledge, increasing world.demands for new forms of intellectual property protection as well asaccess to IP related information, increasing dominance of the newknowledge economy over the old ‘brick & mortar’ economy, complexitieslinked to IP in traditional knowledge, community knowledge and animateobjects, will pose a challenge in setting the new 21s t century IP agenda. 21s agenda.Intellectual property will no longer be seen as a distinct or self-contained self-domain, but rather as an important and effective policy instrument thatwould be relevant to a wide range of socioeconomic, technological andpolitical concerns. The development of skills and competence to manage concerns.IPR and leverage its influence will need increasing focus; in particular, in focus;the third world
  31. 31. An ideal regime of intellectual property rights strikes a balance betweenprivate incentives for innovators and the public interest of maximizing accessto the fruits of innovation. This balance is reflected in article 27 of the 1948Universal Declaration of Human Rights, which recognizes both that“Everyone has the right to the protection of the moral and material interestresulting from any scientific, literacy or artistic production of which he is theauthor” and that “Everyone has the right ...... to share in scientificadvancement and its benefits”. The burning question seems to be balancingthe interest of the inventor and that of the society in an optimum way.Intellectual property rights are being harmonised worldwide.As per the obligation under the Trade Related Intellectual Property Systems(TRIPS) agreement, developing countries are now implementing nationalsystems of intellectual property rights following an agreed set of minimumstandards, such as twenty years of patent protection; the least developedcountries have an extra 11 years to do so. One of the third world concernsis that while a fully harmonised system of IPR is being advocated, today’sadvanced economies had refused to grant patents throughout the 19th andearly 20th centuries. They formalized the enforced intellectual propertyrights gradually as they shifted from being net users of intellectual propertyto bring net producers. Indeed, France, Germany and Switzerland, who areleading developed countries today completed, what is now standardprotection, only in the 1960s and 1970s.
  32. 32. The battle today is between those that are not equal, economically andinstitutionally. TRIPS, like other World Trade Organization agreements, is anagreement on a legal framework. Its implications will be decided by resolvingdisputes. That makes case law and the power of the parties involved of greatimportance. The third world has a clear disadvantage here.In the developing world, the impact of TRIPS will vary according to eachcountry’s economic and technological development. Middle-income countrieslike Brazil and Malaysia are likely to benefit from the spur to local innovation.Countries like India and China, which are endowed with a large intellectualinfrastructure, can gain in the long term by stronger IPR protection. However,least developed countries, where formal innovation is minimal, are likely toface higher costs without the offsetting benefits.There are concrete examples to show that technology transfers to the thirdworld have not taken place when they were needed most. The 1990 MontrealProtocol on Substances that Deplete the Ozone Layer ran into conflicts overcommitments to ensure fair and favourable access for developing countries tochlorofluorocarbon (CFC) substitutes protected by intellectual propertyrights. The 1992 Convention on Biological Diversity aims to ensure fair andequitable use of genetic resources partly through technology cooperation, butits technological provisions have received little attention. The 1994 TRIPSagreement calls for technology transfer to the least developed countries, yetthat provision has scarcely been translated into action
  33. 33. Traditional Knowledge Protection and Promotion: One of the concerns of thedeveloping world is that the process of globalization is threatening the appropriation ofelements of the collective knowledge of societies into proprietary knowledge for thecommercial profit of a few. An urgent action is needed to protect these knowledgesystems through national policies and international understanding linked to IPR, whileproviding its development &proper use for the benefit of its holders. We need aparticular focus on community knowledge and community innovation. To encouragecommunities, it is necessary to scout, support, spawn and scale up the green grassroot innovation. Linking innovation, enterprise and investment is particularly important.New models and new thinking on IP will have to be envisioned to accomplish this.There is a problem on the grant of such patents linked to the indigenous knowledge ofthe developing world that needs to be addressed jointly by the developing and thedeveloped world. We need to understand that there is a distinction between thepatents that are granted based on modern research and patents, which can becategorized as traditional knowledge based patents. A recent study by an Indianexpert group examined randomly selected 762 US patents, which were granted underA61K35/78 and other IPC classes, having a direct relationship with medicinal plants interms of their full text. Out of these patents, 374 patents were found to be based ontraditional knowledge not that all of them were wrong. The Governments in the thirdworld as well as members of public are rightly concerned about the grant of patentsfor non-original inventions in the traditional knowledge systems of the developingworld. At International level there is significant level of support for opposing thegrant of patents on non-original inventions. For example, more than a dozenorganizations from around the world got together to oppose the EPO Neem patent
  34. 34. To mitigate this problem, the Indian Government has taken steps to create aTraditional Knowledge Digital Library (TKDL) on traditional medicinal plants andsystems (see box 6), which will also lead to a Traditional Knowledge ResourceClassification (TKRC). Linking this to internationally accepted International PatentClassification (IPC) System will mean building the bridge between the knowledgecontained in an old Sanskrit Shloka and the computer screen of a patent examiner inWashington! This will eliminate the problem of the grant of wrong patents since theIndian rights to that knowledge will be known to the examiner. In a further action,the examiner has decided to disallow seventeen of the twenty claim.The third world faces several other challenges. Weak physical infrastructure in termsof inadequate IP offices, as explained above, is just one aspect; but inadequateintellectual infrastructure, poor public awareness and lack of government policies thatare not in tune with the times are some other hurdles. Many R&D institutions andindustrial firms in the developing world have so far focussed on imitative research orreverse engineering, and have depended heavily on borrowed technology and,therefore, not created productive national IP portfolio. Apart from manpowerplanning for IPR protection setting up of patent training institutes and specializedcourses, a judicious management of patent information is needed is the need of thehour. This will require well-structured functioning of information creating centres,information documenters and retrievers, information users and informationtechnology experts
  35. 35. The Global Politics of Intellectual PropertyRightsWith the establishment of the World Trade Organisation in 1995, the Trade 1995, Related Aspects of Intellectual Property Rights (TRIPs) Agreement became part of the ‘single undertaking’ that all members were required to accede to. However, unlike most of the rest of the WTO’s legal to. instruments, which are concerned with the manner in which state’s trading activities are controlled and regulated at the border, the TRIPs agreement required WTO members to establish domestic laws that produced specific legal effects as regards the ‘owners’ of IPRs (patents, copyrights, trademarks, and other intellectual properties). While the properties). TRIPs agreement did not mandate how these laws should be framed they did require them to bring into existence certain rights and obligations. obligations. This has led to considerable resources and effort being put into programmes of capacity building and technical assistance, led by, but not exclusively delivered by the World Intellectual Property Organisation (WIPO). (WIPO). These programmes have sought to establish the western mind- mind- set and legal processes of intellectual property as best practice around the world, although not always easily or completely. Indeed, laws cannot completely. properly function without widespread social acceptance and the establishment of legitimacy, and this has become a major problem with intellectual property; its legitimacy as a legal form is increasingly property;
  36. 36. Promoting the norms of protecting IPRs has proved to be a difficult task. Onone hand in fields as varied as access to the medicines needed to sustain thelife of those who have AIDS or HIV, the control and sale of music as welleducational publications, the control of the naming of foods and wine, thepayment for the tools needed to access the Internet, and the use ofgenetically modified material (in industry and agriculture), the ‘owners’ ofIPRs have sought to maintain and expand their rights to control, charge foruse, and prevent unauthorised access to their properties. On the other hand,as the social costs of these prohibitions (until payment is received) havebecome increasingly obvious: people with AIDS die because drugs remain soexpensive, although in the face of high profile campaigns in this area thingshave started to change; educators find they are unable to easily and cheaplyaccess the latest information for students; the costs of some softwareproducts greatly constrains the advantages of the information age for thepoor; and people across the world have started to understand why somegoods seem so expensive despite their low material production costs.One response to this programme of protection has been the expansion of(so-called) piracy by those who need to access knowledge and information,but who cannot afford it. The word ‘piracy’ is used by knowledge owners totry and draw a parallel with violent dispossession but this depiction isunjustified even if it has some political currency; most of those identified as‘pirates’,
  37. 37. whatever their morals seldom kill or use violence to obtain information andknowledge related products or services. We all know that the music industry hasfound that given the choice between paying for music or downloading it for free,many people prefer the latter, but on the other hand, the live music scene whichprovides direct payment from audiences to artists is flourishing. Some countries havesought legal ways of sidestepping the limitations on the production of needed drugsby using forms of compulsory licensing as another way of confronting the enforcedscarcity that IPRs produce. Across the world faced with protecting the rights ofholders of IPRs in the richest and most developed countries (mostly corporations whohold/own these rights) at the cost of the lives of their citizens, or at the very least atthe cost of their ability to utilise information and knowledge resources to enrich andimprove their lives, states and other organisations have questioned the claims putforward by the supporters of intellectual property.The central claim made is that without the protection of the rights of creators,innovators and inventors, they would cease to provide the innovations required if thehuman race is to continue to prosper. It is only by constructing a scarcity (of use) forknowledge and information, by making it property, that proper and legitimateeconomic rewards can be established in a market society. The construction of scarcitycertainly changes the character of information and knowledge, which has few if anycosts of replication in its original state, but this scarcity is required if we are to ensureindividuals and companies receive the support and incentives they need to continueto innovate in a society where the market is the key organisational device. This claimis the foundation for the TRIPs agreement and global governance of IPR
  38. 38. it now seems that the TRIPs agreement rather than finally consolidating theexpanded rights linked to IPRs, actually represented the high-water mark from whichsubsequent political pressure and contest has forced a partial retreat, and thebeginning of a return to the sort of balance that has been achieved through most ofthe long, and at times contentious, history of protecting intellectual property.The TRIPs agreement and subsequent attempts to further expand the rights of IPRs’owners have served to demonstrate the social costs of such commodification, and assuch have prompted social forces, and community practices to respond in the face ofan over-reaching by one set of social interests. The new millennium’s politics of IPRswill be a story of compromise and re-organisation, rather than as some feared twodecades ago, a period of consolidation and expansion of the interests of a small IPR-owning elite. The TRIPs agreement was an anomaly and the relatively normal historyof IPRs is returning.As people in the developed world argue over how long the law should give Disneythe exclusive right to Mickey Mouse, they need to remember the blessings ofintellectual property rights. Yes, intellectual property laws are imperfect andsometimes abused, but they have helped create the most prosperous, dynamic, andenjoyable society the world has ever known.Critics are right when they say that we need to do more than simply demand thatdeveloping nations respect the intellectual property rights of the developed world.But we will not help the developing world by discouraging it from doing what hashelped the developed world to prosper. If we truly have a heart for the poor, weshould help them build institutions that foster intellectual property THE END