Intellectual Property Law Analysis

Introduction

According to Shippey (2009, p.1) an Intellectual Property (IP) refers to a product of the mind. Intellectual properties are unique in that they are a product of creativity and inventiveness. They can either be represented by images, artistic works, images inventions, names, symbols, and designs that are used in commerce. This means that IPs differ from the widely known idea of properties such as vehicles, buildings and land. Shippey (2009, p.1) further asserts that intellectual creations cannot be sensed by another person other than the creator since they cannot be presented in a tangible form. Therefore, intellectual properties are intangible in nature. They only exist in the mind of their creators.

There are two main categories of IP which include copyrights and industrial properties. Industrial properties include trademarks, patents, geographic indications and industrial designs. On the other hand, copyrights refer to artistic and literary works for example musical works, poems, films, novels, plays, paintings sculptures, photographs, and architectural designs (World Intellectual Property Organization, n.d, para. 1).

For a number of centuries, intellectual properties were not protected by the law. This arose from existence of an impasse amongst lawmakers regarding how to value and protect individuals’ ideas. However, the emergence of the Enlightenment Era in the American and European economies led into an increment in the number of inventors, publishers, composers, entertainers and authors (Shippey, 2009, p.1). The resultant effect was an increment in the need to protect intellectual rights through law.

This culminated into development of various forms of Intellectual Property (IP) laws. According to HG.org (n.d, para. 1) IP law refers to an area of law that is concerned with ensuring effectiveness in the creation and protection of intellectual properties and administering justice to individuals whose intellectual property rights are violated. Intellectual properties require protection in order to encourage creativity and inventiveness that benefits the society. Additionally, protection is necessary so as to enable the owners make a living out of their hard work.

The main forms of IPRs that were developed and recognized during the industrial revolution included trademarks, patents, industrial designs and copyrights. IPRS are categorized amongst the most important and current legal issues with regard to international trade (Shippey, 2009, p.2). One of the factors that contribute to this trend arises from the fact that these forms of IPs have a longer tradition. As a result, most individuals take them into consideration first.

In an effort to promote international trade, the World Trade Organization (WTO) incorporated a number of Trade Related Intellectual Property Rights (TRIPs). The objective of WTO TRIPS agreement was to narrow the gap with regard to how intellectual property rights should be protected. The agreement outlines the basic levels of protection that each government should give to IPs of member states (World Trade Organization, 2012, para. 9). As a result, WTO TRIPS agreement is able to establish a balance with regard to the long term benefits that the society acquires and the short term costs. The long term benefits that the society acquires arise from the fact that IPs promotes creativity and inventiveness. This means that IP laws are appropriate in the success of every economy.

Despite this, it has been argued that the current international intellectual property standards as mandated by WTO TRIPS agreement reflect Western European traditions from the time of Industrial Revolution when doctrines such as industrial designs, copyrights, trademarks and patents were developed. However, the realities of the ways through which creativity and inventiveness occur are not adequately addressed or reflected by these laws. This paper evaluates the appropriateness of intellectual property laws. Additionally, the paper analyzes and discusses the above view point in relation to the pros and cons of the alternatives to TRIPs mandated copyrights, trademarks, patents and industrial design standards.

Analysis of the appropriateness of intellectual property laws

According to Sebban (2005, p.5), every individual has the potential of creating an intellectual property. However, an individual’s creation may not be of any benefit if it is not protected. Intellectual property laws provide legal rights over an individual’s creation. As a result, individuals are able to make a living out of their creativity and inventiveness. Additionally, intellectual property rights system offers incentives to individuals and organizations to be inventive and creative. This motivates individuals to invest their thinking, time and resources towards development of innovative and high quality products thus maintaining fair competition. IP laws foster an effective cycle of inventiveness and innovation. It also ensures that those who work hard are adequately rewarded.

The core objective why governments integrate intellectual property laws is to enhance creativity and innovation. Simon (2005, p. 1625) asserts that the basis of intellectual property laws in the US is to enhance creativity and invention. This is attained by giving individuals and organizations monopoly rights. The resultant effect is attainment of a high level of economic development.

Traditionally, intellectual property rights such as copyright and patents were justified on two main grounds which include their consequentialist and right-based grounds. On the basis of consequentialist justification, intellectual property laws give artists or authors exclusive ownership to their creation. As a result, they bar other individuals from reproducing their work. Therefore, intellectual property rights are able to eliminate the element of ‘free riding’ within an economy. This means that intellectual property laws such as patents and copyrights are able to resolve market failure which may occur as a result of free riding.

The assumption is that the intellectual property right fosters creativity and inventiveness by encouraging authors, artists, and investors to continue with their work. For example, the objective of the United States incorporating the copyright and patent system was to enable it implement Article 1 Section 8 of its constitution. As a result, the US was able to promote useful Arts and Science by ensuring that the inventors have a limited duration within which they have exclusive rights with regard to their writings and discoveries

The appropriateness of intellectual property laws is also justified by the need to protect. The existence of IP laws is based on the need to define and enforce IPRs. However, IP laws are not the source of property rights. This arises from the fact that an inventor or artist has the natural right to enjoy his or her work. This means that unauthorized use of an individual’s creativity or invention is illegal and unfair. This justification of IPRs also presumes that an increment in the rate of creativity and invention culminates into an increment in the number of products being released into the market thus increasing the social benefits through various ways such as improving the society’s quality of life, cultural and economic enrichment. Therefore, one can conclude that IP laws act as incentive towards creativity and inventiveness.

The 20th and 21st century has been characterized by numerous technological inventions and creations. In the absence of the inducement provided by IPRs, it would have been difficult for these developments to occur. Some of the vital developments that have occurred as a result of existence of IP laws specifically patent laws relate to life saving drugs, plant science products and various technologies such as Information Communication Technology. On the other hand, copyright laws have promoted the development of strong cultures for example with regard to World Music. Copyright laws have stimulated the growth and distribution of various forms of music.

Intellectual property laws contribute towards a country attaining economic progress. Sebban (2005, p. 10) outlines creativity, innovation and cultural diversity as some of the factors that contribute towards a country attaining economic growth. According to Sebban (2005, p.10), there is a direct correlation between a country’s rate of economic development and innovation. Therefore, through innovation, a particular country is able to attain sustainable economic growth and hence the prosperity of the entire society. Currently, the economic growth being experienced by US is as a result of a high rate of innovation. Creative industries which are composed of software, performing arts, music, publishing and film have played a vital role in the economic growth of the US (Sebban, 2005, p. 10). In an effort to attain a high competitive advantage, businesses invest a substantial amount of resources in marketing and research and development. However, this is only possible if they are certain that they will recoup the expenditure which they incur. As a result, effective protection of their investment is necessary.

Intellectual property laws provide businesses with incentives to invest hence contributing to economic progress (Sebban, 2005, p. 4). The resultant effect is progress in cultural, social and economic aspects (Sebban, 2005,p. 3). Additionally, intellectual property laws contribute towards alleviation of disease and poverty which enhances cultural heritage. This means that intellectual property laws benefit the entire society. Additionally, intellectual property laws protect individuals’ creation from being copied by other individuals.

Considering the role of IP laws in promoting creativity and economic development, it is important to consider the truth of these claims. Findings of a study conducted by the Senate Subcommittee on Judiciary on Trademarks, Copyrights and Patents in 1958 asserted that it cannot be affirmed with 100% certainty that the patent system results into attainment of the said net benefits to the society (Simon, 2005, p. 1625). Additionally, findings of another study conducted in 1991 to evaluate the effect of patent system revealed that it is not a condition for invention. This means that creativity and innovation can prevail even in the absence of IP laws. From the findings of the study, there is no statistically relevant relationship to support the claim that intellectual property rights enhance creativity and inventiveness (Simon, 2005, p. 1626). Two scholars Professor John Braithwaite and Peter Drahos argue that there are very few cases which base human creativity on the existence of intellectual property rights thus promoting inventiveness.

During the late 18th and early 19th centuries, there were numerous inventions with regard to music, chemistry, art, science and literature in Central Europe. These developments occurred despite the fact that there were no IP laws at the time. Some of the factors which enhanced creativity during these times related to the prevailing cultures and existence of institutions of scholarships (Simon, 2005, p. 1627).

Additionally, the technological development which was experienced in the Unites States during the 20th century was not as a result of existence of intellectual property rights. However, it was as a result of existence of an effective education system and diversity amongst the students. According to Simon (2005, p. 1627), an excellent education system and intellectual property laws only act as support to the prevailing culture of innovation. This assertion is evidenced by some of the most momentous scientific innovations which have been undertaken since World War I. The main inventions during this period include the nuclear energy, the internet and bio-technology. These developments are as a result of creativity, inventiveness and hard work by students from different universities but not as a result of intellectual property laws (Simon, 2005, p. 1627). Simon (2005, p. 1627) further asserts that despite the existence of intellectual property rights in some countries, they do not promote creativity and innovation. This arises from the fact that these IP laws are poorly designed and implemented.

Over the recent past, there has been an increment in the intensity of criticism that IP laws are negatively affecting the society which they purport to benefit. This arises from the fact that intellectual property rights laws fence off intellectual commons thus limiting future creators (Simon, 2005, p. 1627). Intellectual property laws also limit the transfer of wealth from the developed to the poor countries. The resultant effect is that poor countries are denied the opportunity to access critical products for example lifesaving drugs. Despite this setback, numerous countries are increasingly adopting intellectual property laws (Simon, 2005, p. 1613).

Intellectual property rights are characterized by a certain degree of biasness. This arises from the fact that they protect certain types of creativity and excludes others. For example, the patent and copyright laws protect intellectual properties which have a definite inventor or author (Simon, 2005, p. 1617). Additionally, these rights protect intellectual properties on the basis of their ‘public domain’, ‘novelty’ and ‘originality’. However, these characteristics are not applicable to all societies and indigenous people in which creativity is considered to be cooperative, cumulative, informal and collective.

The IP system promotes a new form of colonization. This arises from the fact that the efforts of indigenous people are utilized freely or at a low-cost by other individuals for production process. For example, the IP system enables multinational companies to claim protection using traditional IPRs such as patents. They achieve this by using expensive technologies that are not easily available in the developing countries. This means that IP laws consider traditional knowledge as a ‘raw material’ that is of minimal value in the international market until it is exploited using capital-intensive practices. After exploitation of the traditional knowledge, the resultant product can then be sold in the international market (even the source country) at a higher price so as to make profit (Simon, 2005, p. 1618). Therefore, one can conclude that the current intellectual property laws are deficient with regard to assigning value and protecting traditional knowledge.

The appropriateness of IPR laws in promoting creativity and inventiveness is also controversial with regard to how they work. IPR laws such as patents limit creativity and inventiveness amongst other individuals by restricting them to be involved with certain creation for given period of time. If a particular invention is not protected for a given period of time, the probability of follow-on innovation is likely to be high. Therefore, there is need for a balance to be established with regard to private control of technological information and the diffusion of such information.

Intellectual property laws advocated by the WTO TRIPs agreement are aimed at establishing a balance between differing interests and aims so as to attain predetermined public policy goals. However, establishing this balance is challenging. Additionally, some of the IP laws may not offer sufficient protection while others may be over-protective.

Conclusion

The analysis above has illustrated the appropriateness of intellectual property laws. This has been achieved by analyzing the pros and cons associated with IP laws. In the analysis, two main IPRs which include patents and copyrights have been taken into consideration. Intellectual property rights are appropriate in a number of ways. However, the most prominent characteristic of IP laws which makes them to be appropriate is associated with their economic advantage. Intellectual property laws contribute towards a country attaining a high level of economic growth. This arises from the fact that they promote creativity and inventiveness amongst individuals and organizations.

Intellectual property laws such as patents and copyright laws enable individuals to invest their money and time in undertaking research and development. This arises from the fact that their inventions are adequately protected by the IP laws. An individual’s creation may not be of any benefit if it is not protected. This is due to the fact that other individuals may copy his or her work thus minimizing its value to the creator. Intellectual property laws provide legal rights over an individual’s creation. As a result, individuals are able to make a living out of their creativity and inventiveness. Therefore, one can conclude that IP laws act as an incentive towards creativity and inventiveness.

IP laws such as patents and copyright contribute toward growth of various forms of industries such as music, performing arts, film and publishing. The resultant effect is that a countries economic growth is promoted. If this form of protection lacks, it would be challenging to attain the desired development. However, there are some drawbacks that characterize IP laws. For example, patents and copyright laws are characterized by a certain degree of bias. Additionally, IP laws promote a certain form of colonization. Additionally, intellectual property rights laws fence off intellectual commons thus limiting future creators. Therefore, one can conclude that intellectual property laws do not enhance creativity and inventiveness.

Despite this, there are a number of claims that have been advanced by a number of scholars that criticize IP laws. These scholars argue that the current international intellectual property standards as mandated by WTO TRIPS agreement reflect Western European traditions from the time of Industrial Revolution when doctrines such as industrial designs, copyrights, trademarks and patents were developed. As a result, intellectual property laws do not appropriately reflect creativity and inventiveness. In their argument, these authors assert that creativity and inventiveness persisted even before IP laws such as patents and copyrights were developed.

Reference List

HG.org. 2012. Intellectual property law. Web.

Sebban, G., 2005. Intellectual property: Source of innovation, creativity, growth and progress. New York: International Chamber of Commerce.

Shippey, K., 2009. A short course in international intellectual property rights: Protecting your brands, marks, copyrights, patents, designs and related rights worldwide. Petaluma, CA: World Trade Press.

Simon, B., 2005. Intellectual property and traditional knowledge: A psychological approach to conflicting claims of creativity in international law. New York: McGraw-Hill.

World Intellectual Property Organization. 2012. What is intellectual property? Web.