Introduction

This paper will discuss to what extent intellectual property (“IP”) law appropriately balances the need for protection of rights above those who need to legitimately need to access rights. This discussion will be attained by taking into account the aims of both IP and the objectives of the protection of rights in the IP system. This will then be measured in relation to different rights focusing on Patents, Copyright and Trademark. This assignment will contain theory based discussions on how developments of IP rights have increased the scope and protection of rights for the right holders and the foundation behind the establishment of these rights. Further, this paper will use examples to show, that in regards to IP, it does not always balance needs of right holders’ and those who need legitimate access to such rights suitably. The assignment will conclude that over time IP has and will continue to become more valuable and therefore increased protection is needed for innovators and right holders in acknowledgement of the profitable value that these rights carry. Due to the increased value of these rights, the balance is now in favour of right holders and innovators and not the general public.

What is IP?

IP can be referred to as knowledge and information. The World Intellectual Property Organisation defines intellectual property as: “products of the mind, inventions, literary and artistic works, any symbols, names, images and designs used in commerce”.[1] Hence the reason IP law closes off knowledge by granting innovators and right holders special rights to this information.[2] The Worlds Intellectual Property Organisation details “rights given to people over the creation of their minds and creators can be given the right to prevent others from using their inventions, designs or other creations.”[3]

As a result the law of IP creates a monopolistic right which in turn means for a length of time the innovators or right holders will hold special rights to their property. Davies pin points this by stating IP is “a most valuable asset” and also identifies that in a globalised market the importance of innovators and right holders protection, where IP rights value is on the rise. [4]

The balance in developing countries

The idea of monopoly causes doubt in regards to the law of IP and also gives us the idea that the balance is more in favour for the right holders and innovators rather than the general public. This is evidenced more in developing countries and is debated that monopolistic rights in the developing country, rather than developed countries, balances between the right holder and the public does not exist.

Technology can be attained from developed countries but special rights stops developing countries having access to this which in turn means that developing countries are unable to improve and it can be debated  that this then stops them growing into developed countries. In opposition to this debate it can be argued that if IP rights in developing countries had no or little protection then companies would not be stimulated to invest in developing countries. Pressure and strain was raised in regards to the patenting of pharmaceutical products and if access to health care products were available at costs which where affordable. Medicines which are newly available are costly and not accessible to developing countries due to the issue that these are patented which means they are subject to selective rights.

The Doha Agreement 2001 recognised this pressure and strain and allowed the covenant on Trade Related Aspects of Intellectual Property (“TRIPS”) to be understood in a way which public health is provided and access to medicine for all is encouraged by Member States.[5] The TRIPS agreement created a set of rules involving all aspects of IP rights. In regards to IP rights the TRIPS Agreement is the most all-inclusive international tool. The TRIPS agreement identifies the standards in regards to copyright and rights which are related such as trademarks, industrial design and patents. Both the availability of rights and their enforcement is related by the standards of protection. Under the agreement a set level of protection is provided for all member countries to be adhered to.

The Doha Agreement has been defined as “a political and legal landmark in WTO relations”;[6] this agreement was a making of TRIPS.  Doha agreement protects intellectual rights contained in TRIPS. These govern the production of ideas, processes and products. Further it is concerned with how rights may be set aside in a “national emergency”.

In developing countries the main reason behind the Doha agreement is to gain steadiness in regards to health care needs for the public, also recognising that IP rights play a vital role in the creation and growth of new medicine.[7] In balance against the debate that vital medicines should be made widely accessible to all is the debate that by innovators patenting medicine encourages the investment of businesses and thus patent is the purpose of medicine being created. Consequently, if patent systems were eradicated then so would the motivation to produce these medicines.

Many disagree that the Doha agreement does enough[8] and it is still questioned whether how appropriate the severe IP rights in developing countries are irrespective of the identification of rationale for patents in medicine.[9] What the Doha agreement does is it brings the obvious unevenness between right holders and the public to the forefront.  There is a debate that the Doha agreement pin points communal costs in regards to exclusive rights in global politics which in turn could in the future lead to additional concessions  by the method of compulsory licensing.[10] Moreover, Rott indicates the Doha agreement determines some accomplishments in obtaining conversation of opposite social needs and development in technology.[11]

In regards to public health it is one of the many instances that IP rights aim to attain a balance and this has been defined as being similar to “walking a tightrope”.[12] This is due to the fact that IP rights must supply right holders and innovators the select use of information. In opposition to this IP needs to be less harsh as to now permit rivals and the general public access to this information in the public domain, with encouraging technology evolving and creativity being improved .

By outlining the scope of rights, in terms of time taken and breadth, looking for ways to avoid and remedy the exploitation of special rights under competition law and by international trade regulation, the balance is therefore wanted in numerous ways. In regards to if these goals are attained, this will be examined in regards to individual rights such as patent, [13] copyright[14] and trademarks[15]. 

Patents

There are numerous reasons as to why the monopolistic rights in the form of patents were formed and the most popular debate in the support of patents is that of the public benefit that streams from the contribution of patent monopolies.     The idea behind this argument is that the general public should only suffer harm instigated by the award of a patent if the general public received a benefit. Interest from the public in regards to the patent system stemmed from the information that the patentee developed a new technology which was not accessible to the public prior. It can then be argued that the public benefit lies in publication of the patented invention. It is stated that the explanation of the patent system is the outcome of the part played in technical information circulation. As a result the patent system motivates businesses and individuals to reveal information that they might not have wished to previously share.[16]   It is proposed that a solid patent system inspires innovation.

This can be seen in s.14(3) of the Patents Act 1977 in the UK[17], Where the condition is that that a patent application should disclose the creation in a manner that is clear to a person skilled in that area. Through patent applications, it was said that information would be further spread from others, therefore the public would benefit. In “Asahi”[18], the court states that binding patented applications must contain an ‘enabling disclosure’[19] which supports and permit the patent to be replicated or improvements being made. The public interest is served not only in this way, but by the patent system producing fundamental and important databases of technical evidence.

The idea that patents could offer the opportunity for inventions to be exploited for around 20 years suggests that over time investors would be more likely in invest into the development and research by providing funds.  This results in connecting both the technical and scientific world with the commercial world. Numerous inventions are hence produced which then questions whether investor’s rights are well adjusted against those of the public or whether these rights are overlooked in favour of the owners or employers. Under s.39-43 of the Patent Act 1977, the aim is to guard the employed inventor’s rights. Nevertheless numerous cases have shown that inventors have had trouble in implementing these rights against their employers, as seen in the cases.[20]

Machlup reviews the reasoning for patents, he details that patents are made for the advantage of both inventors and consumers for various causes. Firstly he indicates one of these reasons to be natural law theory. This theory queries how appropriate the rights are of covering the idea or object and debates that patents should be given to the portion of the progress that signifies the sum added by both skill and labour. He stated that when patents are given then it should be of an indefinite time scale. [21] Machlup’s second reason was that of reward by monopoly. He stated that there are numerous awards given to right holders but they are awards that recognise public benefit and not one to the individual. Machlup says that in regards to the monopoly profit incentive investments in innovation are protected. [22] This reason can be outlined that when incentives are put in place to develop new products by employers and innovators then in the long run innovations will be more frequent and in turn the society and the economy will be more fortunate.          

In opposition Kronz disagreed with the concept and as a substitute proposes that patent does not motivate innovation because innovation is encouraged by other aspects. Kronz’s opinion was that the main reason of a patent is the information which makes it public and therefore emphasizing how vital patents are to the public benefit. [23]

Trademarks

Trademarks, through the use of exclusive use permits works, product and processes to be exploited. It is debated that trademarks inspire and motivate innovation, also different to their other intellectual property counterparts, trademark monopoly is offered but does not look to stop competition, even though dilution can have this outcome. [24] Trademarks fundamentally guard business status which is vital. Trademarks offer a benefit first of all protection to the right holder. Second, they provide the consumer the source of the goods. Third, they provide the consumer the ability to differentiate between the goods.

Trademarks give material about the goods or services offered indirectly. This is due to the fact that consumers connect with prior experience, which in turn advices that trademark offers a form of protection to the public. Thus, trademarks can act as protection for consumers. Debates can occur stating that trademarks can be a way of sharing information about the products or services so that consumers can make knowledgeable choices about their purchases. It has consequently been stated that trademark law: “reduces the customer’s costs of shopping and making purchasing decisions... for it quickly and easily assures a potential customer that this item- the item with this mark- is made by the same producer as others similarly marked items that he or she liked (or disliked) in the past”.[25]

A trademark advantages the public due to the fact that firms are inspired to upkeep quality and variety standards. This can be seen as a vital part of trademarks and declares that their key basis for their being is “that they facilitate and enhance consumer decisions and... they create incentives for firms to produce products of desirable qualities even when these are not observable before the purchase”.[26]

Public benefit can be furthered by the fact that trademark protection inspires competition by allowing similar products to be recognised. The registration of trademarks is put in place to regulate competition when unfair practices have been implemented by opposing traders. [27] In regards to IP rights, trademarks can be the hardest to validate due to how trademarks balance rights of the right holder in contrary to public benefit. In terms of applying the idea of protection of labour and personality in trademark law it can be extremely hard opposing to the way it can be applied in patents, this is due to the fact that there is no prerequisite of novelty for trademarks.

The debate for protection of creativity is hence conveyed as an argument which details the goodwill, nevertheless Bently & Sherman reflect upon this to be unjust as they propose that “while the associations between the mark and a source of goodwill may be instigated and nurtured by the trader, they are as much created by the customers and the public”.[28] Nonetheless, trademarks can be debated that they are an award for help “to assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product[29]”

There are numerous ethical reasons for use of trademark regimes based upon the idea of justice and fairness, in the fact the if another company or service is allowed to use a trademark created by another then they would in turn be allowed to take benefit of the goodwill created by that trademark owner. In regards to the above, it can be difficult to decide what goodwill the trademark owner has produced and further suggests that the “mere selection” of symbols from public domain is an unsatisfactory basis on which to form a claim. Another ethical reason used to justify trademark protection is one that refers to the norms based on morals such as that of “truth telling”.

This method suggests that the law should allow actions to be brought against a liar as a result of another person suffering harm due to that lie. Where misrepresentation on the bases of the goods takes place, this further can be seen as the same as lying. It can then be debated that under this theory, trademarks do not strive to reach a balance. The reason for this justification is that protection is not offered under the circumstances where an innocent adoption of a mark nor does it offer protection where the public would not understand the business association with the owner of the mark.

Copyright

Balance is also sought in copyright law between the interests of the public, authors and performers. On one hand copyright law intends to defend the rights of performers and authors which will create them, with the encouragement to create musical, literacy and dramatic work and also guarding public’s interest in rights to information.[30]  A commonly mentioned reason for copyright protection is that works which are the subject of copyright protection are expensive to produce. However, it can be copied extremely inexpensively such as the downloading of music.

The stringent protection of copyright stifles creativity. What is needed is a balanced approach of private moral and economic interest of authors. Performers need to be protected at the same time as the promotion of culture and scientific advancement.[31]  Some say that with the development of the internet, copyright wrongly stifles the ability to make the most of a new environment and that in turn copyright law has gone too far. [32]

The idea that copyright law occurs as it is right to distinguish the property right in intellectual productions due to the fact that such productions come from the individual mind of the author and therefore protection should be permitted for the creator should exist. Copyright law is supported by other theories that debate that copyright is in place as a legal expression of appreciation for work put in by the author or performer. One criticism which is advanced against this theory is that the reasons why copyright protection is granted does not always correspond to the way that people deserve awards. Other debates in opposition to this theory question why an individual should be permitted to a special right as a reward and debates that other types of rewards should be offered.

Other debates that are in favour of copyright protection debates that copyright is not in favour of the ideas of what is fair and just to the creator but in favour of the public in general. The production and public distribution of objects such as music, art, books and films is a vital and valued asset to society. This theory suggests that the distribution of cultural objects would not happen at a peak level if copyright was not in place.  If an incentive was not put in place then these objects would not be created.[33] It can be further debated that legal protection given by copyright is likely to correct market let down by ensuring incentives that motivate the production and dissemination of works are provided. Copyright can be seen as implementing legal means by which those that invest their time in producing and creating cultural and informational goods can be assured that they will be able to recover their investments and will also earn a profit which is proportional due to how popular their work is.[34] As seen in other types of IP law, copyright can be detailed by an economic theory.[35]

This theory suggests that private possession of objects is the judicial procedure most favourable to prime exploitation. In opposition non-ownership is expected to produce over-exploitation.  Thus this theory debates that copyright is needed to ensure that the product or resource is not overused which would lead to the value of the product being reduced.[36] Therefore it is argued in this theory that in some instances where the costs involved in finding and discussing license agreements would stifle the end of prime agreements.

Finally, in favour of copyright is that of democratic arguments which suggest that “copyright fortifies our democratic institution by promoting public education, self-reliant authorship and robust debate”.[37] This theory sees copyright law as a measure created to develop the independent character of public society. In addition copyright is seen as inspiring the product to be greater but more important is “designed to secure the qualitative condition for creative autonomy and expressive diversity.[38]” In regards to patents a vital reason that establishes the balance that IP aims to attain has been explained. Copyright equally highlights an identical issue and that refers to downloads.

As a result of the “proliferation of new forms of music distribution[39]”a drastic effect on both music and film sales have reduced considerably. This is due to the fact the individuals are illegally downloading and file sharing. This happens due to P2P networks. These networks are linked over the internet and are fundamentally personal computers. These allow the use of software which allows them to “communicate” and the users of this to be able to access, upload and download resources kept in “shared” files found on the computer’s hard drive.[40]  This problem was addressed in 2007 where it was said that for every file legally downloaded, another 20 were downloaded illegally.[41]  Various methods have been put in place worldwide to ensure that the entertainment industry is protected and also to ensure that in the future the decline of sales due to illegal downloads are avoided.

Conclusion

It has been shown a law which has been unachieved as the balance does not provide enough protection for the creator which in turn means that they find themselves unprotected. More recently developments have identified that judicially recognition has been created of UK copyright law to ensure that creators are protected[42], this follows related recognition in other jurisdictions[43].

This paper can be concluded by reflecting on the important aims of the IP law system, which are related to all protection types. Firstly, if rights or protection were not available then creators and investors would not have the inspiration to create such products, more significantly incentives would not exist for commercial sphere’s to put money into the production and creation of new products, this is demonstrated in all property rights. The person investing in the growth and research of newer pharmaceutical products and investing buying shares in the company that possesses the brand. If these rights were not available then products would be invaluable and therefore investments would not occur. The second is the economic analysis; it is obvious that without IP system there would be no enticement to create or design therefore wouldn’t be anything to invest in. IP rights are thus vital in one way or other and needs to exist.  It is questioned that the rights that currently exist in the UK go too far and are more favourable of the creators rather than the public. Where products are not produced the public would have nothing to benefit from. Nevertheless IP rights seem to struggle to get the balance right. Patents are demonstrative of this in terms of illegal file sharing. However, it is clear that current copyright issues and IP rights are more favourable to the creators rather than consumers.

Bibliography

Official Papers

European Commission “Proposal for a Regulation on Compulsory Licensing of Patents Relating to the Manufacture of Pharmaceutical Products for Export to Countries with Public Health Problems”, November 2004 COM (2004) 737

IFPI Digital Music Report 2008: Revolution, Innovation, Responsibility, at http://www.ifpi.org/content/library/dmr2008.pdf

Integrating Intellectual Property Rights and Development Policy, Report of the Commission on Intellectual Property Rights, London, September 2002

What is intellectual property?. WIPO Publication No. 450(E), Available at: http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf

Journal Articles

Cottier ‘The Exhaustion of Intellectual Property Rights- A Fresh Look’ (2008) 39 (7) International Review of Intellectual Property and Competition Law 755-757

Davies, “The Early History of the Patent Specification” (1934) 50 Law Quarterly Review 86

R Davies “Protection of Intellectual property – A Myth? A Consideration of Current Criminal Law” (2004) 68(5­) The Journal of Criminal Law, 398-410

Garon, “Normative Copyright: A Conceptual Framework for Copyright Philosophy and Ethics” (2003) 88 Cornell Law Review 1278

Heath, C., & Weidlich, S., “Intellectual property: suitable for protecting traditional medicine?” (2003) 7(1) Intellectual property quarterly, 69-96                                                                   

James, S., ‘The times are a-changin’: Copyright Theft, Music Distribution and Keeping the Pirates at Bay’, (2008) 19(5) Entertainment Law Review, 106-108

Kronz, H, “Patent Protection for Innovations: A Model” (1998) European Intellectual Property Review 178

Landes and R Posner, “An Economic Analysis of Copyright Law” (1989) 18 Journal of Legal Studiesv 325-363

Landes W and R Posner, “Indefinitely Renewable Copyright” (2003) 70 University of Chicago Law Review 471

Laurusoon, H., “Uncertainty in the Scope of Copyright: The Case of illegal File Sharing in the UK” (2009) 31(3) European Intellectual Property Review, 124-134

May, C., “Why IPRs are a global political issue” (2003) 25(1) European Intellectual Property Review, 1-6

Netanel, N., “Copyright and a Democratic Civil Society” (1996) Yale Law Journal 283, 291

O Farrell, Gemma. "One Small Step or One Giant Leap Towards Access to Medicines for All?." (2008) 30(6) European Intellectual Property Review: 211

Rott “The Doha Declaration- Good News for Public Health?” (2007) Intellectual Property Quarterly 284

Books

Bently & B Sherman, Intellectual Property Law, 3rd Edition, (Oxford University Press, 2009)

Christie and Gare, Blackstone’s Statutes on Intellectual Property, 7th edition, (Oxford University Press, 2004),

Coltson & K Middleton, Modern Intellectual Property Law, (Routledge Cavendish, 2005)

Cornish and Llewelyn, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, Fifth edition, (London: Sweet and Maxwell, 2003),

Hestermeyer, H., Human rights and the WTO: the case of patents and access to medicines, (Oxford: Oxford University Press, 2007)

Machlup, Fritz, An economic review of the patent system, No. 15. (US Government Printing Office, 1958)

Phillips J & A Firth, Introduction to Intellectual Property Law, Fourth Edition, (Butterworths Lexis Nexis, 2001)

Websites

http://www.wipo.int/

Footnotes

[1] What is intellectual property?. WIPO Publication No. 450(E), Available at: http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf

[2] C Coltson & K Middleton, Modern Intellectual Property Law, (Routledge Cavendish, 2005)

[3] What is intellectual property?. WIPO Publication No. 450(E), Available at: http://www.wipo.int/freepublications/en/intproperty/450/wipo_pub_450.pdf

[4] R Davies “Protection of Intellectual property – A Myth? A Consideration of Current Criminal Law” (2004) 68(5­) The Journal of Criminal Law, 398-410

[5] European Commission “Proposal for a Regulation on Compulsory Licensing of Patents Relating to the Manufacture of Pharmaceutical Products for Export to Countries with Public Health Problems”, November 2004 COM (2004) 737

[6] O Farrell, Gemma. "One Small Step or One Giant Leap Towards Access to Medicines for All?." (2008) 30(6) European Intellectual Property Review: 211

[7] Heath, C., & Weidlich, S., “Intellectual property: suitable for protecting traditional medicine?” (2003) 7(1) Intellectual property quarterly, 69-96

[8] Hestermeyer, H., Human rights and the WTO: the case of patents and access to medicines, (Oxford: Oxford University Press, 2007)

[9] Integrating Intellectual Property Rights and Development Policy, Report of the Commission on Intellectual Property Rights, London, September 2002

[10] May, C., “Why IPRs are a global political issue” (2003) 25(1) European Intellectual Property Review, 1-6

[11] Rott, “The Doha Declaration- Good News for Public Health?” (2007) Intellectual Property Quarterly 284

[12] Cottier, “The Exhaustion of Intellectual Property Rights- A Fresh Look” (2008) 39 (7) International Review of Intellectual Property and Competition Law, 755-757

[13] Patents Act 1977

[14] Copyright, Designs and Patents Act 1988

[15] Trademarks Act 1994

[16] Davies, “The Early History of the Patent Specification” (1934) 50 Law Quarterly Review 86

[17] Christie and Gare, Blackstone’s Statutes on Intellectual Property, 7th edition, (Oxford University Press, 2004), p.431

[18] Asahi Kasei Kogyo’s Application [1991] R.P.C 485

[19] Cornish and Llewelyn, Intellectual Property: Patents, Copyright, Trademarks and Allied Rights, Fifth edition, (London: Sweet and Maxwell, 2003), page 151.

[20] Memco-Med Ltd’s Patent [1992] RPC 403; British Steel plc’s Patent [1992] RPC 117 and GEC Avionics Ltd’s Patent [1992] RPC 107

[21] Machlup, Fritz, An economic review of the patent system, No. 15. (US Government Printing Office, 1958)

[22] Ibid.

[23] Kronz, H, “Patent Protection for Innovations: A Model” (1998) European Intellectual Property Review 178

[24] Tattinger v Allbev [1993] FSR 641 and  Harrods v Harrodian School [1996]  RPC 697

[25] Qualitex v Jacobson Products 115 S CT 1300(1995) 

[26] Bently & B Sherman, Intellectual Property Law, 3rd Edition (Oxford University Press, 2009)

[27] s.32 of the Trademarks Act 1994 or Community Trade Mark Regulations Article 1(2)

[28] Bently & B Sherman, Intellectual Property Law, 3rd Edition, (Oxford University Press, 2009) at p718

[29] Ibid.

[30] The Copyright, Designs, and Patents Act 1988 s1 and s.16

[31] Qualitex v Jacobson Products 115 S CT 1300(1995) 

[32] Garon, “Normative Copyright: A Conceptual Framework for Copyright Philosophy and Ethics” (2003) 88 Cornell Law Review 1278

[33] Bently & B Sherman, Intellectual Property Law, op cit. at page 37

[34] Landes and R Posner, “An Economic Analysis of Copyright Law” (1989) 18 Journal of Legal Studiesv 325-363

[35] Phillips J & A Firth, Introduction to Intellectual Property Law, Fourth Edition, (Butterworths Lexis Nexis, 2001)

[36] Landes W and R Posner, “Indefinitely Renewable Copyright” (2003) 70 University of Chicago Law Review 471

[37] Netanel, N., “Copyright and a Democratic Civil Society” (1996) Yale Law Journal 283, 291

[38] Ibid.

[39] James, S., ‘The times are a-changin’: Copyright Theft, Music Distribution and Keeping the Pirates at Bay’, (2008) 19(5) Entertainment Law Review, 106-108

[40] Laurusoon, H., “Uncertainty in the Scope of Copyright: The Case of illegal File Sharing in the UK” (2009) 31(3) European Intellectual Property Review, 124-134

[41] IFPI Digital Music Report 2008: Revolution, Innovation, Responsibility, at http://www.ifpi.org/content/library/dmr2008.pdf

[42] Twentieth Century Fox Film Corporation & Others v Newzbin Ltd [2010] EWHC 608

[43] A&M Records Inc v Napster Inc 239 F.3d 1004 (9th Cir., 2001); Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (“Kazaa”) [2005] F.C.A. 1242 (September 5, 2005)