Intellectual Property Law in England - Essay Example

? Justifying Intellectual Property Law in England Intellectual Property Law For over four centuries, Intellectual Property rights have been troubled and have been subjected to repeated assertions that are related to ongoing innovation in the society. It is for this reasons that the law still inspires a need to justify its place into our society. Several reports, texts, and documents have been presented with an aim of creating a clear and justifiable explanation for the Intellectual Property Law regime. However, it is essential to note that the legal relationships between different objects, individuals, and the state are not easily justifiable. According to Ayn Rand (1966), he states, "patents are the heart and core of property rights, and once they are destroyed, the destruction of all other property rights will follow automatically, as a brief postscript.”1 Over the years, intellectual property has continuously changed to a widespread and significant form of ownership title. There is also the introduction of ‘Post Industrial Society’ identified in Naisbitts text Megatrends.2 This scenario has caused a strain on customs and laws that have been enacted to protect intellectual property since many industries are indulging into manufacturing and manipulation of the existing goods to enable use of information, which in turn liberates the production. The presence of immensely enhanced information-handling technologies combined with the huge role information is providing in our society there is a lot of theft or piracy of information. This leads us to the issue of Patent, Copyright, and trade secrets, which have led to numerous suits in academic, and several industries. The public has, therefore shown a lot of concern over the validity of intellectual property institutions. Using the statements provided in the text by Cornish, Llewellyn, and Aplin (2010): “Intellectual property rights are the result of idealistic and utilitarian perceptions. …and so the law must establish regimes which offer market exclusivity to extent that will rectify the most evident cases of undue appropriation of intangible value while preventing them from giving protection against the effects of competition which is quite disproportionate.”3 The paper seeks to justify the extent to which the legal regulation can be justified in terms of Intellectual Property Law. Intellectual Property Law in England Intellectual Property Rights can be defined as the rights given to a person over what is usually a unique creation of their own minds. The creator is given exclusive rights to use this creation for a given period. This law encapsulates a whole range of intangible assets, which include music, Assets, artistic work, discoveries, and even factory trade secrets. The law is there to avoid infringement of these rights by other parties for personal benefit while at the same time maintaining the competitiveness of the market. Introduction of these laws has brought about many disputes in the business world. Some of the cases that are leading in the English law that deal with copyright law include Exxon Corp. v. Exxon Insurance Consultants International Ltd..4 In this case, the court ruled that a name invented or otherwise, does not incorporate a copyright and an infringement to a trademark can only occur when the infringing party actively takes part in the market segment. Another important case is Kenrick v. Lawrence 5 In this case; the courts laid out the extent for which a work is granted copyright protection and it also indicated the point where expression converts to an idea in which case the latter is not protected, but the expression is protected. There are several other laws such as Aerotel v Telco and Macrossan's Application6 and that the English uses for reference in deciding cases that are related to intellectual property. The British Statute of Anne7 was the first statute established to regulate copyright through the courts and the government instead of being governed by private parties. Prior to these restrictions, the Licencing Act of 1662 governed related to intellectual property.8 Another important statute that brought a revolution in the English Patent Law is the Statute of Monopolies.9 The statute was passed as an Act by the English Parliament and eminent as the “first statutory appearance of English Patent Law.”10 From these statutes and cases we can clearly identify that Intellectual property law has its upside and downside. Intellectual Property Law and the Constitution The United Kingdom constitution does not exist as a single document as other nations may have; it is mainly drawn from several court judgements, statutes, parliamentary constitutional conventions, treaties, and several other sources.11 A focus on intellectual property law reveals that it originated during the Elizabethan era. During this time, the law was mainly in the form of royal favours that were granted by the lord of the land or the king to those who were able to come up with new techniques. The favours were issued in terms of letters patent and letters close or royal charters gave the individuals a monopoly over the particular goods or service.12 This trend however started to change once the new parliament becomes active after the Reign of Queen Elizabeth. The main reason for this change was that the new parliament realized royal favours issued during Queen Elizabeth reign were detrimental towards free trade; hence, they put in place measures that would suppress them. Conflict of the Intellectual Property Rights and the Competition Law Intellectual property rights and competition law have different objectives that some time may contradict each other. A good example is the UK patent act of 197713 grants the creator of an idea the exclusivity to that idea and prevents other parties from producing it for 20years. On the other hand, patents may be granted when a process or product is deemed technically innovative. What this law mainly stipulates is that the patentee does not necessarily become a monopolist since it allows other products that compete with the product but is entitled to a certain level of immunity from other competing firms. The patented product or process is usually technically innovative. In general, Intellectual Property Rights are mostly a product of national systems of law. The awareness has become widespread following the increase in international commerce. On the other hand, globalisation has brought interference with Intellectual Property Rights especially in Europe where different nations all exhibit varying national laws. This has further brought some hitches into attaining the single market integration goal.14 In the recent years several harmonisation measures that have been adopted to decrease the differences that exist between the varying systems of law amongst countries. A good example of this progress is the Trade Mark Directive15 that was later instigated into law by the Trade Marks Act 1994.16 Exclusivity of Intellectual Products If we put all the subject matter of trade secrets, copyrights, and patents together, we can name them intellectual objects.17 A few facts about these objects are that they are non-exclusive meaning they are not easily consumed by their use and can be present in several places. With modern technologies, it is now possible to make intellectual objects unlimitedly available at minimal costs. However, our society has enabled writers and investors to have legal rights that exclude others from using certain intellectual works and in return; they are entitled to disclose them publicly. This is an urgent step since disclosure helps people to learn and build new ideas from these works.18 Unfortunately, the common law encourages secrecy by offering protection on trade secrets. This in turn, makes trade secrets unattractive, which is opposite to patents and copyrights.19 Intellectual Property Rights in Labour and Market Value One controversy may arise with the statement that property rights enable people to enjoy the fruits of their labour.20 The idea behind this statement is that a person should have exclusive rights to one and manipulate in whichever way fit for them of a product that they produce using their own perseverance, intelligence, and effort.21 Locke is one writer that has offered his take on labour justification by stating that since a person own his or her body, then he or she should be entitled to what it does, in this case labour.22 Locke believes that objects have little value in terms of their importance to humans and society23 but labour is the main reason for giving these objects over 99 percent of their value.24 Critically looking at the view it is not reasonable because labour has to be mixed with other natural resources and land for their, to be any meaningful results. A good example is that offered in Hettinger’s article, which states that 99 percent of the value in an apple does not come from human; however, labour is necessary for creating a portion of this value.25 The important part is to determine the amount of value of inventions, writings, and business information that may attribute to an intellectual labourer. For us to appreciate intellectual products there must be a certain degree of discovery, development, or authorship that is necessary for those products to have their value. However, not all their value should be implicated to have come from the labour of individuals.26 Rawls another influential writer on property rights argues that dedication to development and application of gives the necessary desert claim to talent.27 Rawls completes Locke’s ideas by suggesting, “That much individual action is the result of pervasive social influence so that society to have a legitimate interest—but not a coequal right—in the results of individual initiative.”28 Utilitarian Justification of Intellectual Property Law In many reports, utilitarian argument is the most common used intellectual property justification. Using the US constitution the same explanation can be used to justify England’s Intellectual law. Under the constitution, the statement “to promote the progress of science and useful arts” governs justification of copyrights and patents.29 As per this argument, to promote the creation and development of intellectual works, it is necessary to award these labourers with the rights for their works.30 It is therefore, important for there to be a system that is powerful enough to ensure there is use and production of intellectual products without restricting their use and availability. It is for this reason that government support for public ownership and intellectual work.31 Why protect Intellectual Property Rights? The society expects the government to act in the interest of its citizens by doing useful and good things that benefit the society.32 The Idea behind patenting rights is to encourage the producers to keep producing thus it works in the interests of the public. The fact that these patents expire with time ensures that the producers do not over rely on the old materials and stop producing new ones. Therefore, after the expiry of the patent, the idea is released to the public domain. This creates an environment for creativity and innovation ensuring that ideas are continuously produced. Remedy for Intellectual Property Rights infringement On the issue of Breach, copyright section, 127 of the Copyright and Related Acts 2000 acknowledges that a violation of the copyright in a product is actionable by the owner of the copyright.33 The award granted is the discretion of the court, as Section 128 (1) makes clear: “The court may, in an action for infringement of copyright award such damages as, having regard to all the circumstances of the case, it considers just.”34 High tech companies constantly innovate. Since information is not always safe, the best way for companies to protect their intellectual products is to come up with technically superior products. Instead, of spending too much money hiring patent attorneys, superior products can be a good remedy, to establish a stronger existence in the market.35 Conclusion Justification of England’s Intellectual Property is a challenging task. There are several inadequacies emerging from the traditional justification, and it becomes severe in justifying intellectual rights. In England, labourers are always rewarded for their works, but copyrights, trade secrets, and patents may sometimes reward the labourer with more or less, than they deserve. From the discussion offered in this paper, it is of concern to note that justifying intellectual property is essential, however, not because the institution may be lacking some sort of justification but because these rights are not easily justifiable as many people may think. There is a need to come up with more creative and imaginative ways that will enable us to stimulate and reward intellectual property. Read More