Intellectual property research paper

TUMAINI UNIVERSITY MAKUMIRA UNIVERSTY COLLEGE FACULTY OF LAW

PRAYGOD I MANASE 11/1/2010

PRAYGOD I. MANASE
Intellectual property law continues to expand, with the net result that intellectual property right owners are becoming increasingly powerful. When will legislators and judges learn that more intellectual property protection is not necessarily better?

Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce. 1 Intellectual property rights are exclusive rights given to people over creations of their minds; they can be given rights to prevent others from using their inventions, designs or other creations. 2 Intellectual property law regulates the use and exploitation of that (mental or creative) labor.3 Intellectual property law emerged under the Elizabethan era in the form of royal favors granted by the King or the lord of the land to the introducers of new techniques. Those royal favors in the form of royal charters, letters close and letters patent granted a monopoly to produce particular goods or provide particular services. With mounting pressures by judicial criticism, intellectual property was regulated under common law and the Statute of Monopolies enacted in 1623 rendered illegal all monopolies except those for a defined term of years. 4 One of the important characteristics of intellectual property is that it is monopolistic. This is indicated by the phrase exclusive rights used in intellectual properties. This phrase embodies two important concepts. First, that intellectual property rights are negative in nature, because the owner is given the right to exclude others from infringing any one of the particular rights conferred and the second, is that the owner of the intellectual property right is the only person who can exploit the right.5 As on the one hand the demand for increasing protection has arisen, so has on the other, the level of suspicion of criticism of intellectual property protection.6 Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions, software patents and business method patents. One of the vivid examples of this is the Microsoft case. 7 Others hold that allowing property rights in ideas and
1 2

WIPO website accessed at http://www.wipo.int/about-ip/en/ on 3rd June 2011 Jennifer Davis, Intellectual Property Law, Oxford University Press 2nd edition (2005) pg 2 3 L .Bently et al, Intellectual Property Law, Oxford University Press 2nd edition (2004) pg 1 4 WIPO An explanatory note concerning the origins of the United Kingdom intellectual property legal regime accessed at http://www.wipo.int/wipolex/en/notes/gb.pdf on 14th June 2011 5 Ibid 6 W. Cornish et al, Intellectual Property; Patents, Copyright, Trademarks, And Allied Rights ,Sweet and Maxwell 6th Edition (2007) Pg 31 7 The United States v Microsoft Corporation was a set of consolidated civil actions filed against Microsoft Corporation pursuant to the Sherman Antitrust Act on may 1998 by the United States Department of Justice and 20 US states. The

information creates artificial scarcity and infringes on the right to own tangible property. Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may someday be eternal). In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection 8Never the less, intellectual property can still be defended on a number of grounds which justify its protection; First is the law and economics justification; This is based on the fact that intellectual property is costly and time consuming to produce requiring certain degree of inventiveness and originality, yet once it has been embodied in material form may become relatively cheap and easy to reproduce. Furthermore there may be no limit to the extent to which it can be copied with each copy having as much value as the original. Hence intellectual property rights are justified because they offer an incentive for the creation of new intellectual capital and without them, individuals and companies would be deterred from making necessary initial investment to produce intellectual capital, and as a result the market would be impoverished.9 The point in this is that without intellectual property protection, there would be underproduction of intellectual products because though they are expensive to produce, once made available to the public they can readily be copied, which means that in the absence of rights giving exclusivity a creator is likely to be undercut by competitors who have not incurred the costs of creation. 10 Intellectual property rights can also be justified on the basis of labor. This is sometimes referred to as the Lockean approach. It embodies a more rights based approach. It is generally about the existence of uncultivated common which is characterized by the abundance of goods. Property rights are granted to those whose labor add value to the goods they take from the common provided that as a result of their labor the common stock is also increased or, as Locke put it provided enough and as good is left in the commons for others to enjoy. In intellectual property this is explained to mean that those who use their labor in the creation of a particular product should be rewarded for it.
plaintiffs alleged that Microsoft abused monopoly power on Intel based personal computers in its handling of operating systems and browser sales. 8 http://en.wikipedia.org/wiki/Intellectual_property accessed on 14th June 2011 9 Jennifer Davis, Intellectual Property Law, Oxford University Press 2 nd edition (2005) pg 2 10 L .Bently et al, Intellectual Property Law, Oxford University Press 2nd edition (2004) pg

Apart from the foregoing grounds intellectual property rights can be justified on the basis of economic development. Economists estimate that two thirds of the value of large businesses in the USA can be traced in intangible assets. IP- intensive industries are estimated to generate 72 percent more value added price (minus material cost) per employee than non IP intensive industries. 11 Despite all the justification and protection conferred on intellectual property, intellectual property legislations contain many built-in safeguards to ensure that a balance is struck between the rights of the intellectual property owner and free competition. Some of these safeguards require the owner to pay renewal fees regularly (in the case of patents, registered designs and trade marks). 12 Others require the owner to make effective use of the intellectual property right: hence failure to exploit for instance a patent may result in compulsory licensing and failure to use a trade mark for more than five years means that the registration may be revoked at the instance of any third party. 13

In the case of copyright and designs, the competition authorities may intervene where the owner has abused the right. With the exception of trademarks, all intellectual property rights are of finite duration. Finally, in the case of all registered intellectual property rights, statute provides for the right to be declared invalid in certain instances, so unlike real property and tangible personal property, intellectual property rights are always vulnerable to challenge by third parties. 14

In conclusion, it appears that the public debate over intellectual property is stirring, however both those in favor of strengthening and those in favor of weakening existing protection agree that intellectual property laws need to strike a balance between providing sufficient incentive for creation and the freedom to make use of existing ideas. Put it differently, both sides agree that intellectual property rights are a necessary evil that fosters innovation, and disagreement is over where the line should be drawn. 15

11 12

Sipho Limbe, lecture handout, Introduction To Intellectual Property Law,(2011) pg 4 University of London International Programmes, Types of Intellectual Property, accessed at https://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/intellectual_propert y/intel_prop_chpt2.pdf on 3rd June 2011 13 Ibid 14 Ibid 15 Michele Boldrin et al, Whats Intellectual Property Good for? Accessed at http://levine.sscnet.ucla.edu/archive/refs4786969000000000082.pdf on 14th June, 2011

Bibliography Books; Jennifer Davis, Intellectual Property Law, Oxford University Press 2nd Edition (2005) L .Bently et al, Intellectual Property Law, Oxford University Press 2nd Edition (2004)

W. Cornish et al, Intellectual Property; Patents, Copyright, Trademarks and Allied Rights, Sweet and Maxwell 6th Edition (2007)

Articles. Michele Boldrin et al, Whats Intellectual Property Good for? Accessed at http://levine.sscnet.ucla.edu/archive/refs4786969000000000082.pdf

Sipho Limbe, Lecture Handout, Introduction To Intellectual Property Law, (2011) Websites.

University of London International Programmes website, Types of Intellectual Property, accessed at https://www.londoninternational.ac.uk/current_students/programme_resources/laws/subject_guides/ intellectual_property/intel_prop_chpt2.pdf on 3rd June 2011 WIPO website accessed at http://www.wipo.int/about-ip/en/ on 3rd June 2011

WIPO website, An explanatory note concerning the origins of the United Kingdom intellectual property legal regime accessed at http://www.wipo.int/wipolex/en/notes/gb.pdf on 14th June 2011

Cases

The United States v Microsoft Corporation cases, Supreme Court E. R. 157-231 (1999)