Intellectual and Modern Property - Essay Example

Intellectual Property and Modern Property Introduction: Intellectual Property may be defined as a creation that involves innovation and personal creativity of the person who has brought a product into being. Therefore, laws that have been created seek to protect the rights of the creator of the work to the economic exploitation of that work. In a similar way, patents and trademarks are vital for businesses in protecting their innovations and creations and ensuring that the benefits in the marketing potential of the product are directed only to the patent/trademark owners. Protection afforded to intellectual property has been deemed vital to protect innovation and creativity in society, because if this economic incentive is removed, then there will be an erosion of the spur that propels the ingenuity and desire to create new works. Moreover, it protects the inventor from unscrupulous individuals who are able to profit from the innovative elements in the work, while also protecting the moral rights of an author to his own creation. However, conflicts have also been generated through the evolution of the Internet which has facilitated digital copying and modification of previously created works. Moreover, the extension of the duration of protection for copyrighted and patented works has been contested as a measure that interferes with the public rights to fair use of material, especially for information and research purposes. Therefore, it has become difficult to strike an appropriate balance between the protection of the rights of the creators of original works and the rights of the public. The question that will be examined in this research study is the extent to which IPR rights are a benefit to society. The economic incentive provided by IP rights to facilitate creation of innovative works is undisputed and it also enables the propagation of wealth that is a benefit to society as a whole. Since it allows owners of copyrighted/patented works to earn more from their work, it also allows Government to increase taxes and improves the exchequer so that Government programs can benefit weaker elements of society. It also enables an artist/creator to be protected from unscrupulous elements and thus affords some protection to the vulnerable elements in society. An author is also legally entitled to moral rights to his work, however in practice, this has not been rigorously upheld in the UK, as demonstrated in further material that follows. The right to ownership of property is the basis for a free and secure society, and by allowing ownership on patents for example, there is also incentive provided to business to improve their investments. However, with increasing globalization, there may be a need to extend patent protection for products to other countries as well, in order to effectively provide the necessary levels of protection. Intellectual property: The four main types of Intellectual property may be broadly classified as follows: (a) patents (b) trademarks (c) designs and (d) copyright1. Intellectual property Rights extend over several kinds of creations - copyright, trademarks, patents, know how and trade secrets which also fall into the realm of confidential information, including layout designs, plant breeder rights and industrial property. However, they may vary in the realm of protection that they afford. For instance, copyright protection for a literary, dramatic or musical work may extend to seventy years while a patent on a design may offer a short term 20 year period of exclusive monopoly over a product and a trademark will extend that monopoly only to a particular category of goods2. This allows for free and fair competition because one company is restricted from holding on to a patent and its exclusive rights of economic exploitation for an extended period of time. Hedvig points out that while the aim and objective behind providing intellectual property rights is to protect the innovation and labor of the creator of the work, the requirement of competition within the European Union has seriously questioned the scope of IP rights3. IP rights are granted to ensure that the creator is rewarded for his innovative efforts and hard labor by acquiring the exclusive right to economic exploitation of his work through the dispensation of the various rights associated with it. Therefore, to that extent, IPR rights help to protect the ingenuity and creativity of the author and help to foster the spirit of innovation and creativity within a society. However, the exclusivity that is acquired by virtue of possession of an IPR seriously conflicts with the public right to the use of those IPRs. For example, copyrights subsisting on literary work can be freely accessible to the public - without the need to compensate the owner of the copyright – only when the term of its copyright has expired and the property comes into the public domain. On the one hand are the rights of the owner of the copyrighted material to economic exploitation of his work, which justifies IP protection on grounds of economic efficiency.4 On the other hand is the aspect of public domain rights to copyrighted material, which includes such aspects as the fair use doctrine.5 A property that is in the public domain will include those works to which the public is permitted free and unfettered access, where copyright protection will not exist.6 In general, properties created over seventy years ago will be deemed to be in the public domain and in some instances, this will also include copyrighted material that is deemed fit to be provided accessibility without constraints, on the basis of the fair use doctrine and where such access will be for the purpose of benefiting the public.7 Therefore the question that arises in this context is whether the extension of copyright is warranted and whether it is beneficial to society. It could be argued that there needs to be a reasonable cut off period, such as 50 years beyond which the public should have the right to enjoy the work without the threat of infringement. It is only then that the beauty of a work can be freely enjoyed by successive generations. This is particularly so in the case of musical creations, where continuously allowing extensions to copyright to protect the rights of the artists presents a complex problem of how far it may be allowed without interfering with the rights of the public to free and unfettered access to musical material. This raises the issue of privacy verses freedom of information due to the public. Privacy vs freedom of information: The conflict between the public interest and confidential information is an issue that is particularly relevant the freedom of the Press is concerned and involves a delicate balance between the free speech of the media and public interest vis a vis the obligation to protect information of a confidential nature. Thomas J in the case of Beloff v Pressdram held that an obligation to protect confidence cannot be held to be valid when a disclosure of inequity is at issue.4 Lord Denning was of the view that were public figures has deliberately boosted their glamour quotient, it was permissible to break a confidence so that the public could have access to the information.5 In the context of celebrity figures, the question of their right to privacy as contrasted with the eight of the public to information about them is a thorny issue for which no ready solutions present themselves. The exclusivity enjoyed by these artists is largely a function of the value of the copyrights that subsist in their works, which raises their economic potential. Therefore, the law of intellectual property and the copyright protection afforded to creative works may be enhancing the glamour quotient of these artists and posing serious problems to the maintenance of their privacy. The abuse of the dominant position: The possession of an IPR could sometimes place a copyright holder in a position of supremacy which could be exploited for undue economic gains. The conflict between the rights of the public and copyright holders has been highlighted especially through the abuse of a dominant position by undertakings, which has resulted from the possession of an IPR, which Aashit Shah has dealt with on a comprehensive basis6. He contends however, that the rights of IPR holders are being seriously undermined and that innovation is being stifled in the context of the increasing emphasis that is being placed on competition within the European Union and the activist posture of the ECJ in this regard. The best instance of an abuse of a dominant position is exemplified in the case of Microsoft, where the anti competitive practices were found to violate the extent of protection afforded by IPRs to seriously restrict or distort competition within the internal market.7 This case also demonstrates the difficulty in determining the boundary that will ensure copyright protection to protect innovation and when this boundary will be transgressed. Therefore, it must be concluded that while IPR offers the scope for equitable economic distributions in society, there is also scope for abuse which could produce undue benefits to some parties and corporations that have a dominant market position. The possession of a patent, such as the one Microsoft possessed, may provide room for the abuse of that exclusive right to economic exploitation. Patents: The question of whether the possession of an IPR actually leads to equitable economic distribution was raised by High Court parents judge Hugh Laddie in connection with patents on medicines. He is of the view that as far as access to these medicines by poorer countries is concerned, TRIPS8 “has not resulted in a shrinking of the gap that divides those two sides [the developed world and the developing world], rather it has helped to reinforce the views already held."9 Professor John Barton, Chairman of the Commission on IPR is of the view that the rigorous protection afforded to IPRs in developing countries is not necessarily beneficial to public interest within developing countries.10 The reasons he offers are that the tight protection results in an element of exclusivity and raises the costs associated with the use of the products, so that it becomes uneconomical for poorer countries to develop them effectively. Furthermore, the European Patent Convention that came into force on June 1, 1978 is a harmonized system that extends patent protection in several states, thereby providing protection for a patent in all the European countries through the filing of one application. This application protects the products throughout Europe for a period of 20 years. Thus, while the patent is granted at a national level, renewals and litigation can be contested in the domestic courts. However, the Community Patent visualized as a part of this initiative has not yet come forth, so the patent application can also be filed under the UK Patent Act of 1977, which has stressed that English law must give effect to the European Patent Convention.11 Moreover, in order to further protect its product, an inventor company can also complete the filing and initial search process under the PCT through an international application, which will ensure that preliminary examinations are completed with a single application. The right to a patent is secured through the existence of the “essential inventive concept”12 and a priority in date of registration of the patent.13 The faithful renewal of a patent through the payment of a renewal fee each year will ensure that a patent on a product will not expire, and will be valid for a period of 20 years from the date of filing. In the case of patents and trademarks especially, proper registration will ensure that economic benefits from the intellectual property can be derived by another party only if proper license and permission have been sought from the owner of the intellectual property and provided that adequate compensation has been paid for the same. While this is a boon for preservation of innovation, it has also proved to be the bane of poorer nations and it could be argued that long time patent protection actually enhances the cost of goods such as medicines that should be distributed freely among all countries. The emergence of the Internet: The Internet has revolutionized the availability of information and legal boundaries of digital property have been subject to increasing uncertainty in a knowledge based economy.14 Before the advent of the Internet and technology, it was physically a tedious job to reproduce and distribute plagiarized copied of copyrighted works in a physical environment and making of such copies was also a relatively expensive process. However, as Lawrence Lessig points out, the online environment is so structured that a page can be copied without leaving a trace, so that the footprints of the pirate are difficult to track.15 Hannabuss has highlighted the ethical issues that arise in the realm of intellectual property because through the facility of the Internet, infringement has become increasingly easy, and it is a simple matter to “pass off” someone else’s creation as one’s own16. This can be a strong deterrent for the original creator of an innovative work, since he will be unable to compose or create something for which every part is original and never done before. The original purpose of copyright was to grant to the creator of the original work, the protection for his innovation as well as his time and expense in creating the work. Copyright prohibits the unauthorized duplication, performance or distribution of a creative work.17 However, in the digital age of technology, the cost of creating has reduced considerably. Movies, digital films, books, music, they can all be more cheaply made and distributed.18 Since there is no regulatory control over the Internet and since digital technology has created the facility of cheaply and quickly trying out a variety of creative alternatives that were once time consuming and expensive, the creation of an original work is not the difficult endeavor that it once was. With increasing flexibility and ease in the generation of creatively enhanced products and music, there is an increasing tendency for legal restrictions to increase, perhaps born of the fear that the Internet will spell the death of copyright19. The Net has no real history – pages can be changed without any mark being left behind, the plagiarist or the copyright thief can steal easily without leaving any clues. File sharing is just one aspect that highlights this aspect of technological advances – it gives individuals the freedom to access and make use of material that has been produced and slaved over by another without paying for the privilege of using the material – thanks to the ease of digital transfers that facilitate downloads at practically nil costs. Moral rights: The principle of moral rights of an author, which first originated in the French tradition of droit d’auteur20, means that the most sacred personal property in connection with an original creation, is in fact, the fruits of a writer/creator’s thoughts. The moral rights of an author mean that he/she is the originator of the outward fruits of such thought and therefore is automatically endowed with the right to determine its expression and distribution. Therefore, this includes the right to claim authorship of the work which is the right to attribution, the right to withdrawal of the work after it has been published, the right to carry out any modifications to the original work, which is the right of integrity and lastly, the right to determine exactly how and where it will be published, distributed and exhibited, which is the right of disclosure21. The right to identification of an author with the work is also referred to as “the right of paternity” while the right to integrity in the UK is equivalent to the “right to object to derogatory treatment.22 Associated with the creation of an original work are certain inalienable rights of an author to protect his/her good name, reputation, integrity and character of the work, which protect the personal and moral interests of the creator23. According to Holderness, the two most important moral rights are the right to paternity and integrity, since the right of identification is what enables the original creator of a work to initially receive recognition for his/her efforts24. As clarified by Holderness, with the right to identification for a work comes the responsibility for its content and an inaccurate representation of the author’s original skill as displayed in an adaptation may result in lower advances and damage to the author’s credibility and reputation.25 The CDPA has also introduced the concept of moral rights to allow a creator to protect the artistic integrity of their works26 However, there are also some significant limitations placed on moral rights within the scope of the Act. British law differs from French and German law, which has been the basis for the development of international law as far as protection for original work is concerned, in that there are some limitations on the exercise of moral rights. For example, where the right of integrity is concerned in so far as adaptations to the original work are concerned, the provisions of the CDPA do not allow injunctive relief that is associated with damages. As spelt out in the Act, where an author’s work is illegally modified, the extent of relief will be limited to a disassociation of the author’s name from the work.27 In the event that such modification is derogatory, the definition of derogatory treatment as covered under the statute specifically excludes translations of the work.28 Moreover, Section 87 also provides for a complete waiver of moral rights by the author. Therefore, the failure to adequately preserve moral rights may be a limitation of the IPR protection that is provided, thereby inhibiting creativity and innovation. Lessig has proposed a “creative Commons” where authors offer license for use of their works on their own terms to all those who want to avail of it29. Seadle has discussed the concept of moral rights and their application within a digital environment, offering three examples of international collaborations where differing moral rights in different countries could cause a clash of expectations30. Vetrone, who is an attorney for artists has examined how file sharing and illegal downloading of music has only exacerbated the already bad problem of disregard of the moral and other rights of artists over their property.31 The inclusion of more such views is likely to provide a clearer picture of the current status of moral rights, as well as the improvements that have occurred in the UK over the years, in so far as providing protection of authors’ rights is concerned. Conclusions: In the view of the foregoing, to what extent does IPR benefit society? The benefits lie in the fostering of the spirit of creativity and innovation among the public, and increased economic benefits that accrue through the protection of an original creator’s right to economic exploitation of his/her work. In the development of original products, an individual is likely to be more forthcoming in developing and designing new products and creations if he/she can be assured that the economic benefits of the work will accrue to him/her. Furthermore, the development of the patent concept provides an incentive to businesses to invest in research and development, because they know they will have the right to benefit economically from the products that are developed. As a result, society is benefited through the tremendous improvements in technology and new products that are developed at considerable expense, time and effort, secure in the knowledge that the economic benefits from the product are forthcoming. Such an incentive would not exist for companies to invest if no IPR protection existed. Although the period of patent protection extends over only 20 years as compared to 70 for copyright, it is nevertheless adequate to ensure that a business is able to derive economic benefits from the fruits of its investment. When the business community thrives, the benefits often trickle down into the lower rungs of society so that all individuals can benefit from enhanced wealth that flows into a particular country. A concomitant benefit arising from patent protection is that the more profits that businesses are able to make, the higher will be the levels of taxation. When an economy is vibrant and healthy, Government can impose higher levels of taxes and introduce more Government programs to benefit the less fortunate elements of society. Therefore, this additional economic benefit that arises is the result of IPR protection. Moreover, the right to possess and exploit a property endows security and stability to a product so that investment is fostered. The removal of uncertainty about product use plays a major role in increasing investment and in development of new and innovative technology, for example. The protection of moral rights allow further room for creativity to expand and grow, since an author is assured of his reputation and the integrity of his work being protected. In a similar way, a business scan rest assured in the knowledge that its invention is protected for a certain period of time, which would justify the huge amounts of investments that are made into the development of new products. However, it must also be noted that of late, the protection afforded by IPR may be in a state of erosion, because of the advent of the Internet. Due to the ease and facility of copying, it has now become easier to pass off someone else’s material as one’s own. IPR rights have so far been inadequate to protect the rights of the authors and creators of original works from such unauthorized use of their property. Another aspect of the controversy surrounding this issue is the fact that the rights of copyright holders are coming up in conflict with the rights of the public to fair use of copyrighted material for research or knowledge purposes. Therefore there is a need to strike a new balance in this regard and the creative commons project mooted by Lawrence Lessig appears to offer one viable solution to this dilemma. Since the advances in technology and the Internet cannot be reversed, the law as currently delineated in the sphere of IPRs must be streamlined and modified to take into account the copying facility afforded by the digital medium. Unless some form of effective protection is provided for original works such that they cannot be manipulated using the tools of technology to reappear as someone else’s work, there is likely to be a decline in innovation and creativity. Therefore, in conclusion , IPR may also be seen to have some disadvantages. One of the most notable of these is in the instant rise in prices of a product once it enjoys patent or copyright protection. This makes certain products economically unviable for less developed countries. IPR makes products costly such that they are priced way too exorbitantly and this may be detrimental to the common interest. The huge economic gains that become possible through the imposition of IPR rights can elevate the market value of stars for example, such that they become public objects whose privacy comes into conflict with the rights of the public to have information about them. IPR also provides scope for abuse of dominant market positions by corporations that might actually become more exploitative with a patent. A good example of this is the abuse of the patent that Microsoft had on its software products such that it tried to gain an unfair advantage for itself in the market, by abusing its dominant position. This remains a danger with corporations that are becoming increasingly powerful in a global marketplace. Furthermore, since there is not an adequate amount of protection provided to moral rights, there may be scope for passing off and exploitation of an original author’s product which are detrimental to innovation. Therefore, IPR rights need a significant amount of modification in order to be adaptable to the current digital environment. The provisions existing in the current legislation may be inadequate to deal with the problems generated by the electronic medium and the development of new laws and regulations appears sorely needed. Bibliography * Benkler, Yocahi. (1999). “Free as the air to Common use: First Amendment Constraints on the Public Domain.” 74 NYU Law review at 354 * Bently, Lionel and Sherman, Brad, 2004. “Intellectual Property law” (2nd edn) Oxford University Press at pp 231 * Cornish, W.R. (1999). Intellectual property: Patents, Copyright and Allied Rights London: Sweet & Maxwell. * Dworkin, Gerald, 1986. “Moral rights in English law” 8 European Intellectual property review, 329 * Hannabuss, Stuart, 1998. Issues of Intellectual Property New Library World, 1998: 99(1143), p 185 * Holyoak and Torremans, 2005. “Intellectual property law” @ pp 10 * Holderness, Mike, 1998. “Moral rights and authors’ rights: The keys to the Information age.” Journal of Information, Law and technology [online] available at: http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1998_1/holderness/ * Kmietowicz, Zosia, 2002. Patent laws are keeping poor countries in poverty British Medical Journal (International Edition) London: September 14,2002: 325(7364) at pp 562 * Landes, William M and Posner, Richard A (1989). “An economic analysis of Copyright Law” 18 Journal of Legal Studies at 325 * Lawrence Lessig (1999). Code and other Laws of Cyberspace” Basic Books * Lessig, Lawrence. (2001). “The Future of ideas: The fate of the Commons in a digital world.” New York: Random House. * Litman, Jessica (1990). “The Public Domain” The Emory Law.Journal at 965 * O’Dell, Justin, 2001. Trouble abroad: Microsoft’s Anti trust problems under the law of the European Union 30 Ga. J. Int’l & Comp. L. 101, 119, * Schmidt, Hedvig, K.S., 2002. Article 82’s exceptional circumstances that restrict intellectual property rights. 23(5) European Competition Law Review at 210 * Shah Aashit, 2003. The Abuse of dominant position under Article 82 of the Treaty of the European Community: Impact on licensing of Intellectual Property Rights 3 Chi. Intellectual Journal of Property at 41 [online] available at: http://jip.kentlaw.edu/art/volume3/3-1-3.htm * Thurow, Lester C.(2000). “Building Wealth: New rules for individuals, companies and nations in a knowledge based economy. Harper Business Edition, pp 116-125 * Vertrone, Amelia V, 2003. “The legal and moral rights of all artists.” Iuniverse Publishers * http://www.intellectual-property.gov.uk/faq/copyright/moral_rights.htm * www.creativecommons.org Legislation cited: Patent Act of 1977 Copyright Designs and Patents Act of 1988 Cases cited: * Beloff v Pressdram (1973) 1 All ER 241 * Gales Application (1991) RPC 305 * Henry Brothers v Ministry of defense (1977) RPC 693 * Woodward v Hutchins (1977) 2 All ER 751 End Notes: 1. TRIPS - The agreement on Trade-Related Aspects of Intellectual Property Rights, dated Apr. 15, 1994, framed under the Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, Legal Instruments – Results of the Uruguay Round vol. 31, 33 I.L.M. 81 (1994) , referred to as TRIPS, which deals with the issue of intellectual property rights 2. This Act (Copyright, designs and Patents Act of 1988) came into force on August 1, 1988 and was slightly amended in 1990 and 1991. However, subsequent revisions to the statute have largely been made to incorporate the provisions of European Union Directives Read More