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Justification Of Patents, Copyrights And Trademarks Notes

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The Nature of Intellectual Property Rights 'Intellectual Property Law': Regulates the creation, use, and exploitation of mental or creative labour. Refers to the general area of law that encompasses copyright, patents, designs, and trademarks, as well as a host of related rights. 'Intellectual Property Rights (IPRs)': Main form of legal exclusivity in free market enterprises. Grant to owners exclusive rights to do certain acts and prohibit others from doing these same acts. This allows right owners to charge higher prices for their IP products and restrict others from using them. IPRs can confer a monopoly. The Intangible Nature of IP IPRs are all concerned with establishing property protection for incorporeal or intangible creations, such as ideas, inventions, signs and information. They are separate from property rights - the author retains their IPR even if they give away the physical property, e.g. a letter.
+ Drahos: Identifies two consequences for IP which derive from the fact that it is regulating the ownership and infringement of 'abstract objects:

1. Ct must identify the abstract object which is the subject of a case. Before property rights can attach to the abstract object the law requires some form of 'corporealisation' of the abstract object.

2. There is difficulty in drawing a boundary between two abstract objects where, in the context of an infringement action, the one is alleged to have overlapped the other.
= Drahos highlights the difficulties in defining the abstract object which is the subject of IPRs for the purposes of legal transactions and infringement actions and concludes that it may only be in the context of IP litigation that the boundaries of abstract objects will be delineated. More true for some IPRs than others, as for patents there is the patent specification which attempts to describe the protected invention. Similarly trademarks must be capable of graphical representation to be registered. Technological challenges - IPRs constantly destabilised by technological advance. Yet it is not the initial technology so much as the technology of imitation which stimulates the strongest demand for IP. Great advances require considerable investment to be made, but are often taken over by others quickly, efficiently and cheaply. The Political Context IP law is highly politicised. One the one hand there are groups who represent existing (or putative) right holders which have tended to argue that the existing laws provide inadequate protection - for example:

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Threshold for patent protection for GM biological material is set too high. Copyright and patent protection needs to be explicitly extended to cover multimedia works and software. TM owners are not sufficiently protected against cyber squatters who acquire related domain names.

At the other extreme there are a range of groups who oppose stronger IP protection. These include:

* Representatives of the developing world.

* Consumers/users of IP (e.g. home tapers, digital samplers, appropriation artists, 'netizens', and librarians).

* Defenders of free speech.

* Classical liberal economic theorists.

* Competition lawyers. Political challenges - As demand for increased protection has arisen, so has the level of suspicion and criticism of IP protection. The power IPRs have over the market is debatable.

1 Justifications for IP Rights IP involves a unique relationship between owners of IP and the state. Although IP is unquestionably a product of human labour and creativity, it can only be owned for a fixed period of time. Even during time of ownership, the state protects the owner's title, but does not grant her exclusive control. Others may still use the work in various acceptable ways. This is an unusual combination of public and private rights. Our system is based on assumptions:

* Free market is good.

* It is meaningful to allow property rights in works and ideas.

* It is possible to create a system of IP rights that is not morally arbitrary. Can be legitimate.

* Consistent practice of the implementation should not undermine values it is intended to embody.

* Property rights in ideas must have a limited scope and term. Why is this issue important?
? Important to understand why we grant IPRs because we have a choice whether to or not.
? Decision to grant rights in intangibles impacts on traders, press and media and public.
? Justifications will be different from those for tangible property - often premised on the scarcity or limited availability of such resources and impossibility of sharing. General criticisms of IP law: + Himma:
? There is no physical entity and thus no rationale for protecting them - many people can use them at the same time, therefore there is no exclusivity to protect.
? Freedom of information should prevail.
? There is no such thing as property to be owned - socialist view (Proudhon). General theories of IP rights - + MacQueen: Many interests are protectable by IP law: Moral, social, and economic.

1. Author-centred/Natural rights theories - Influenced by Kant and Hegel. IP system exists to protect rights of authors. Can be justified on a consequentialist or natural rights framework.

2. Reward theories.

3. Utilitarian/Incentive theories - IP system provides incentives for authors to create works of general utility and value by giving people property rights in what they create. Proprietary rights are a convenient fiction justified by the social utility of the whole system. Can be seen as an anti-theory: claim that IP systems have no intrinsic philosophical interest, they are simply contingent procedural arrangements.

4. Economic theories.

5. Democratic pursuits.

6. User centred/Public benefit - IP system exists to promote the greatest possible access to works by users.

7. Publisher centred - IP system exists to make it possible for entrepreneurs to invest in the production of IP and have some assurance that their investment will not be stolen or expropriated.

8. Ethical arguments/unjust enrichment - rhetorically powerful argument.

9. Pluralist theory - Some combination of the above: authors, users, and publishers all have rights than must be simultaneously accommodated. IP must be worked out in an environment of balancing interests rather than a zero-sum conflict. The resulting system will never be ideal. Limitation of term - All theories of property address the issue of appropriation: how is it that owned things become property? IP theory is unique in insisting we must also consider 'anti-appropriation' (the movement of owned things into the status of unowned things. The newly unowned things become unownable! They seem to constitute an 'antiproperty': a sort of intellectual commons. Without limitation IP would become an oligarchy of who got there first. ______________________________________________________________________________________________

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