What an Intellectual property is - Essay Example

of the Number Word Count 2524 (Excluding question, & List of References 285 words) “Protecting the creation and development of ideas lies at the heart of intellectual property. The purpose of doing so is to stimulate and increase the production, development and dissemination of the ideas necessary for progress. This can be achieved by preventing the value of an idea being misappropriated by others. For ideas differ in nature from material property in that they are more vulnerable to imitation…without any protection at all ideas are subject to being ‘stolen’ by competitors as soon as the product becomes publicly available” P44 Colston & Galloway (2010) Modern Intellectual Property Law (3rd edition) Routledge With reference to the above statement, critically discuss the extent to which regulation/ protection of intellectual property can be justified. “What an Intellectual property is?" Intellectual property (IP) connotes to the conceptions of the mind; which includes names, symbols, artistic and literary works, inventions and images employed by the business community to distinguish their products or creation from others in the market. Intellectual property can be divided into two divisions. Industrial property means patents for industrial designs, inventions, trademarks and geographical indications. Copyright engrosses literary creations like plays, poems, novels, films, musical works, and artistic works like photographs, paintings and drawings, architectural designs and sculptures. (WIPO 2003:1). Like any other property, intellectual property rights (IPR) are enforceable under the law, and they permit the author or an owner of a trademark, copyright or patent holder to derive advantage from his own investment, creation or work. These privileges are stated in Article 27 of the Universal Declaration of Human Rights, which states that the privilege to derive advantage from the safeguarding of material and moral interests emanating from authorship of any literary , scientific or artistic work. The significance of intellectual property was first acknowledged in the” Paris Convention for the Protection of Industrial Property in 1883” and in the “Berne Convention for the Protection of Literary and Artistic works in 1886.” Both the above- mentioned treaties are being managed by the WIPO. (World Intellectual Property Organization). (WIPO 2003:3). The privileges offered under intellectual property are considered as a powerful mechanism for cultural, social well-being and for economic development of the society in general. It is aiming to strike a balance between the public’s interest and the interests of the innovator. IP rights reward human endeavour and creativity, which stimulate the advancement of the mankind. Without copyright protection, the existence of the multi -billion -dollar industry, of film making, software development, publishing industry which offers pleasure to billions of people around the world would not be possible. Without any reliable, global trademark protection and implementation, consumers around the world have no means to purchase services or products confidently, and strict enforcement mechanisms under IP regime help to discourage piracy and counterfeiting. Inventors and researchers around the world would have little encouragement to prolong producing more efficient and better products for consumers around the world without the rewards offered by the patent system. (WIPO 2003:3). Safeguarding the development of ideas and the creation of ideas is the prime aim of the intellectual property law. New ideas are necessary to stimulate to enhance and to stimulate the creation, development and spreading of ideas, which are essential for the economic progress. Misuse can be stopped by barring the value of an idea being stolen by others. Ideas may vary in nature from material property and hence, they are more susceptible to imitation. Without any safeguard or protection, ideas are vulnerable to be stolen by business rivals no sooner a product becomes publicly available. This research essay will critically analyse the statement of Colston & Galloway (2010) on aims and significance of Intellectual Property Rights with reference to extent to which regulation/ protection of intellectual property can be justified in an exhaustive manner. Aims of Intellectual Property One of the main aims of the intellectual property laws is to encourage and furtherance of innovations.IPR (Intellectual Property Rights) safeguards the owner from other parties encroaching and enjoying the benefits from his marketing or intellectual efforts. IPR bestows the innovator a special right to seize the knowledge which an innovation may offer and this offer the probable innovators’ more economic incentives to innovate. IPR offer incentives to invest in the production of intellectual property. IP also safeguards new information and knowledge. Without the “production of new information and new knowledge, there may not be technical development and may result in restricted economic growth. From the economic point of view, the main aim of the IP laws is to further general and technical progress for the benefit of the society as a whole and for the advantage of consumers who would profit from new services or products, more enhanced production technologies and larger differentiation of products. (Drexl 2008:7). One of the long -term goals of IPRs is the efficient usage of resources and the underlying principle behind these privileges in aiming to strike a balance between dynamic and static efficiency. With the help of IPR rights, an innovator can enjoy a monopoly over his invention or product for a limited period. This assures the innovators to kindle the efforts to innovate more and to have further motivation. IPRs encourage dynamic competition by stimulating companies to invest in improved or developing the new processes and products. Thus, competition among companies makes to exert pressure to innovate. Hence, both the competition and the intellectual property rights are essential to promote innovation and to make sure a competitive exploitation thereof. (Drexl 2008:7). IPR facilitates their owners to forbid third parties from enacting various acts. For instance, patent act safeguards invention, with the aim of rewarding the inventor and thus furthering investment in innovation, research and new technology. The monopoly enjoyed a patent holder is relatively strong as it facilitates the patentee to forbid others to design same kind of invention. However, the term of patent is relatively restricted to just 20 years as compared to the other intellectual property rights. The owner of a protected work is vested with a property right which is known as copyright and is fundamentally a bundle of both moral and economic rights. In UK, the “Copyright, Design and Patents Act 1988 (CDPA 1988)” deals with provisions relating to patents, copyrights and designs. It is to be noted that no formal registration for copyright is needed in UK, and such right comes into effect no sooner a work is created. To eligible for protection under CDPA, 1988, the work should be original and need not be particularly imaginative, but its conception should have certain effort, and it could not be just reproduction of another work. (Fielding et al 2008:50). Protection is extended to expression of thoughts and does not protect thoughts per se. Copyright offers safe guard to the guise of expression instead of copying but not against somebody who engages in the creation of analogues work independently. Copyright offers creators both recognition and incentives, thereby offering both non-economic and economic rights. It aims to safeguard the creators by forbidding unofficial distribution and copying of copyright works. (Seville 2009:318). Justifications of IPL As per Lehman (1996), the policymakers are required to substantiate the significance of the efficient IPR protection in their jurisdiction in the process of the development of their national economies. Further, the fast development of international investment and trade volume made the implementation of IP safeguard a more significant issue. As per Harris (1998), during the mid-1990s, IPR vouched for over twenty percent of global trade. (Hwan Mun 2008:17). Though, the intellectual property rights offer some positive privileges to the owners, the rights so awarded are primarily negative in nature. These negative rights include privileges to bar others from doing some “barred acts,”, to bar counterfeiters, pirates, imitators and in certain instances, third parties who have conceptualised the same idea without permission or license of the right holder. The value and the significance of intellectual property can be understood from the fact that IP is offering legal safeguard to the owner for many years. (White 2011:62). The exclusive rights awarded by intellectual property rights are known as “exclusive rights.” These exclusive rights grant the holder of IP the capacity to bar third parts from violating on their monopoly. The exclusive rights bestowed by intellectual property laws can easily be licensed, transferred or mortgaged to other parties, and IP can also be used as a security for availing a loan. Exclusive rights under IP law’s bar unauthorised commercial exploitation or reproduction of IP protected products or services. Thus, by enhancing rewards for creators, inventors and authors, the overall efficiency of intellectual works can be improved dramatically. (Ramkumar 2008:23). Unlike wealth in corporeal guise or physical asset which is in a tangible guise which will deplete or depreciate in their value by the usage but there can be no such exhaustion in wealth in the knowledge guise, mainly due to the “non-rivalrous” character of the “information product “which connotes that one individual usage, possession and enjoyment of the product is not reduced, interfered or diminished by another’s usage, enjoyment and possession of the product. Thus, the knowledge product is non-excludable, which is another chief feature, connoting that once the intellectual product is launched in the market, it cannot be barred from being exploited by others. Usage of tangible property is known to be rivalrous in nature as it weakens out with the every next unit exhausted whereas “ intellectual property “ is known to be non-rivalrous in character as that can be exploited simultaneously by an unrestricted quantum of consumers. The best example is an e-book or mp3 file that can be used by a million users at the same time with zero costs to the seller for duplicating such works in the digital environment. Thus, knowledge is a non-rival product and, unlike physical products, any quantum of consumers can enjoy it without any diminution in its value, which in the language of economics, connotes that the consumption extra units of the products happen at very little marginal cost.(Prasad et al 2009 :4). IPR has been explained as an exclusive and definite guise of monopoly. A patent offers an absolute monopoly over the manufacture, use and sale of an innovation though it life is restricted to 20 years. Trademark also offers a monopoly over a symbol or mark. Other businessmen should not use the same mark which is protected under IP act, which is analogue or even non-analogues products or services in some scenarios. The right over the trademark hold good as long as the registration of trade mark is kept alive. If by the reverse engineering process, some imitation of a trademark is allowed, then it is known as a qualified monopoly. For instance, qualified monopoly is extended for the protection for semi-conductor chips and for seed and plant varieties. A copyright does not offer an outright monopoly as protection is offered to ideas only and not for ideas per se. (Colston et al 2010:36). Justice Hoffman in “Improver Corp v Remington Consumer Products (1990) “viewed that a chain of three questions are essential to establish whether alleged infringement violate the claims of patent and if any of the three tests are true, then variants had not infringed the patent rules. (Colston 1999:122). Under public justification , economist argues that new ideas will be encouraged if: The author is compensated for his endeavours and for the expenses involved for the invention. The investment required to construe the conception for a commercially feasible proposal which is safeguarded from unfair competition, which would attract more foreign direct investmetns from other nations. The rapid growth of dyeing and chemical industries in Germany has been attributed to the existence of vibrant intellectual safeguard permitting outside companies the protection required to develop in another jurisdiction. Spreading out the new conception or idea which is improved if its exploitation /utilisation does not lay it available to instance imitation, thus making sure public access to new ideas and knowledge while , without any safeguard , the natural substiture would be to turn to secrecy and thus deny the public of the idea. (Colston et al 2010:21). Under private justification , some critics argue that authors have a generic right to the fruits of their labour, which is footed on Locke’s theory’s in the Second Treaties on Government. In case , where an individual or a company has invested a large sum of investment on such inventions , it appears unfair to permit other rivals to derive advantage over it. However , Pendleton comments that since all so called inventions are just a new mixture of present thoughts and hence , there should not be any natural right to protection. (Colston et al 2010:21). It is to be observed that all justifications are restricted to fair access and there are no one accepted justifications. Further , the intellectual property law is chiefly a statute oriented and statutes have only domestic jurisdiction but whereas both European and international laws will be of much beneficial to implement IP laws both at the domestic and international level. There have been plenty of European and international agreements purported at reconciling the law relating to Intellectual Properties. Accordingly, UK IP statutes have undergone poignant transformations –chiefly intended at introducing / offering effect to these international agreements. In UK, passing off and confidential information are dealt under common law whereas the IP law cases are handled by Chancery Division of the High Court. Patent cases are handled both by Patents County court and High Court. Thus, the main aim of the IP laws is to protect the usage and flow of information / knowledge and thus safeguards the capital value of the subsequent products / goods. Under the economic theory, placing a temporary bar on the usage of invention over time results in the invention and dissemination of knowledge, and it brings generalised usefulness or happiness. One another justification for IP laws emanates from John Locke’s natural rights conceptualisation. Under a Lockean theory of intellectual property, an individual owns what he establishes or creates by his own endeavour. For instance, the trade secretes law which is in force in USA seemed to stick on to a Lockean model of intellectual property. Trade secrets are acknowledged, if not in whole, due to the labour spent in maintaining and creating them. A third justification for intellectual property is the personhood outlook and under this theory, identity for all works created by an author will be accorded to him. As the author is solely accountable for the work and the work will be construed as an extension of the creator’s identity and no one would suffer injury if the work is completely withheld from the public and the society. Thus, the creator has the every right to have control over his invention as long as the invention exists. (Lindberg 2008:16). Conclusion The statement made by Colston & Galloway (2010) is very much true that there is a need for protecting the intellectual property rights in UK as it will offer many advantages to the owner/author for his investment, hard work on the development of such rights thereby safeguarding them from unscrupulous competitors to benefit out of their investment, hard work, ideas, etc. by copying and enriching their share in the market at the cost of real inventors, authors, etc. Thus, owners, authors in UK, intellectual properties are protected by various laws like the “Copyright, Design and Patents Act 1988 (CDPA 1988), Patent Act 1977, and the Trade Mark Act of 1994. “Further, for misuse or infringement of any intellectual property registered in UK, protection is available under international conventions like The Paris Convention for the Protection of Industrial Property 1883, Washington Patent Cooperation Treaty 1970, and Trade Aspects of Intellectual Property Rights (TRIPS) of WTO, etc. List of References Colston ,C , Galloway ,J & Middleton, K. (2010) Modern Intellectual Property Law. London: Taylor & Francis Colston, C. (1999) Principles of Intellectural Property Law. London: Routledge Taylor & Francis Group Drexl, J. (2008) Research Handbook on Intellectual Property and Competition Law. New York: Edward Elgar Publishing. Fielding, N, Lee RM & Blank G. (2008) The Sage Handbook of Online Research Methods .New Delhi: Sage Publications Ltd Hwan Mun –S, (2008) Culture –Related Aspects of Intellectual Property Rights. New York :Pro-Quest Lindberg, V. (2008) Intellectual Property and Open Source. New York : O’Reilly Media Inc Prasad, e A, Agarwala, A, Prasad, A & Gorane, R H. (2009) Copyright Law Desk Book. New Delhi: Universal Law Publishing Ramkumar , Mu.(2008) Intellectual Property Rights Demystified. New Delhi: New India Publishing Seville, C. (2009) EU Intellectual Property Law and Policy. New York: Edward Elgar Publishing White , F. (2011) Commerical and Economic Law in Ireland. London:Kluwer Law International WIPO. (2003) What is Intellectual Property? New York: World Intellectual Property Organization Publication Read More