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Law Notes Intellectual Property Law Notes

Justifications, Copyright 1 (Subsistence) Notes

Updated Justifications, Copyright 1 (Subsistence) Notes

Intellectual Property Law Notes

Intellectual Property Law

Approximately 1014 pages

IP law notes fully updated for recent exams at Oxford and Cambridge. These notes cover all the LLB Intellectual Property law cases and so are perfect for anyone doing an LLB in the UK or a great supplement for those doing LLBs abroad, whether that be in Ireland, Hong Kong or Malaysia (University of London).

These were the best IP Law notes the director of Oxbridge Notes (an Oxford law graduate) could find after combing through dozens of LLB samples from outstanding law students with the highes...

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JUSTIFICATIONS, COPYRIGHT 1 (SUBSISTENCE)

Justifications For IP Rights

  1. Natural Rights

John Locke

  • A man’s property rights in an unowned object are justified by his labour.

  • Whenever a person mixes his labour with something unowned (e.g. raw materials, land) he thereby makes it his property.

  • Proviso: This can only be so where there is “enough and good as left in common for others”

    • i.e. others must not be made worse off through the generation of new property rights

Hegel

  • Individuals enjoy an exclusive moral claim to acts and content of his personality.

  • Thus where C expresses his personality in an object, is entitled to ownership of it.

    • Object contains C’s knowledge, character traits and experience

Himma

  • “Enough and good as left in common for others” should mean that it always justified to allow IP rights where a creator’s content is not necessary for human beings to survive or flourish

    • e.g. is not necessary for me to read a Charles Dickens novel to survive as a human

    • thus is no problem with giving rights of author pre-eminence

Criticisms

Nozick

  • Natural rights justification is WRONG

  • When I mix my labour with unowned object, why should I necessarily gain the unowned object?

    • Rather than simply losing my labour?

    • Pouring a can of tomato juice into sea, I do not gain the sea

Shiffrin

  • Is impossible to create something without the influence of others

    • i.e. no one grows up in a vacuum; we are all product of societal influences

    • Thus intellectual creations (esp. copyright) are not the product of individual labour, but rather reworkings of other ideas generated by society

  • Therefore given the societal sources which go into forming ideas, anything that comes out of ideas should be owned in common by society

    • i.e. and not exclusively by creator/inventor

  1. Incentive-Based Theories (Utilitarianism)

Hettinger

  • Only tenable justification for IP is ultimately a utilitarian one.

  • Without IP, adequate incentives for creation of intellectual products would not exist

    • i.e. people could simply steal ideas

    • thus no incentive to invest time, money and energy into creating new things

  • However this argument is paradoxical

  • i.e. in order to increase the production and future availability and use of intellectual products, we must give inventors the right to restrict the current availability and use of intellectual products.

  • Key question for the utilitarian argument is: what method of control would result in the maximal output and use of intellectual products?

Problem

  • Thus although IP may be beneficial on the whole, it impedes progress in the short term in certain areas.

  • Might be better to employ different methods of incentivising production of intellectual products.

  • e.g. the government could distribute money for intellectual labour with minimal control over what people go on to create

  • Is possible that, although IP once served a useful purpose, it is now simply a tool for firms to monopolise ideas.

Criticism

Boldrine and Levine

  • Incentive-based theories are WRONG.

  • IP is now achieving precisely the opposite of what it was intended to

  • i.e. it stifles innovation, rather than promoting it

  • thus leads to loss of social surplus

  • Patents:

    • Firms now spend billions in order to obtain patents for no other purpose than to stop competitors being able to develop technology.

  • Copyright

    • Overly-long copyright terms mean huge numbers of works, which companies have no interest in republishing/redistributing, are unavailable to the public.

    • Thus copyright is failing in its aim of promoting the progress of science and useful arts

  1. Reward Theory

Hughes

  • IP right is granted because it is fair to reward for someone’s effort in creating a work

  • Thus is best way to ensure creator’s reward is proportional to public’s appreciation of work

    • E.g. where public like’s C’s book, they will buy it in greater numbers

    • Where a drug is popular, will be purchased a lot

Bentham

  • “an exclusive privilege is of all rewards…the most natural, and the least bothersome”

  1. Unjust Enrichment

  • People should not be able to gain a benefit from the hard work of other people.

  • I.e. not right for people to “reap where they have not sown”

Spence

  • Two problems with this view:

    1. To condemn all reaping without sowing impractical

      • i.e. any form of imitation of existing works would be banned

      • would harm artistic freedom

    2. existence of IP right in first place cannot be justified on this basis

      • i.e. does not show us why creator of a work has stronger claim to it than anyone else

  1. Economic Theory

Landes and Posner

  • Private ownership of resources is arrangement most conducive to optimal exploitation of resources.

    • Whereas common ownership leads to over-exploitation

  • By transforming intangible items into private property rights, the items are more likely to be exploited to their optimal extent by the creator

    • i.e. so as to generate most money for society

  • To find ideal strength of protection, necessary to weigh up relative social costs and benefits of more strict/more lenient protection

Is cogent argument in relation to trade marks – i.e. anti-dilution provisions protect money spent on promoting mark as a brand by owner.

  1. Irrelevance of Justifications

Austin

  • Ultimately, above theories have no impact on development of law.

  • IP is not shaped or developed by any of these ideas.

MY VIEW

  • Development of IP rights was not done in a teleological fashion

    • Rather it was done piecemeal.

  • Thus is probably case that different justifications work best for different types of IP

    • copyright – reward justification

    • patents – incentive justification

Justifications for Copyright

  • Copyright is state-sanctioned regulation of the creation and use of cultural goods

  • Has potential to severely restrict way we act

Natural Rights

  • English law tends to focus on the economic rights of the author

  • This clear from:

  1. Employer is first owner of employee’s works

  2. Few restrictions on alienability

  3. Half-hearted recognition of moral...

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