#19691 - 2. Justification Of Intellectual Property - Intellectual Property Law

Because copyright law prohibits the unauthorized use of copies, it has the potential to inhibit the way people interact and use cultural objects – this is why it is important to reassess its legitimacy.

• With the internet, many people think copyright unjustifiably stifles our ability to make the most of the new environment, or that it impinges upon the public domain.

Six basic arguments in response to copyright sceptics / critics

1. Natural rights argument

It is right to recognize a property right in intellectual productions because such productions emanate from the mind of an individual author.

Copy right is the positive law’s realization of this self-evident ethical precept.

Works should be protected because (and insofar as) they are expressions of each author’s personality (European)

• The work created by an individual reflects the unique nature of them as an individual.

• This argument requires that we allow the creator to protect the work (from misattribution, modification, unauthorized exploitation) because it is an extension of the persona of its creator

An author has a natural right over the productions of their intellectual labour (American, following Locke)

Critics of natural rights theories

• Some simply reject the idea of natural rights

• Some criticize the assumptions within the theory – eg. that a natural right in labour justified a natural right in the product of mixing labour and unowned resources

• Some criticsie the extension of natural rights theories to copyright, challenging the idea of individual creation of ideas

  • Social nature of writing and painting.

  • Make the claim to ownership weaker.

2. Reward argument

It is fair to reward an author for the effort expended in creating a work and giving it to the public. Social gratitude to the creator (repayment of a debt)

Critiques of this argument

• Do the circumstances in which copyright protection is granted corresponds to the circumstances in which people deserve rewards?

  • A reward is deserved only where someone has done something they felt was unpleasant and which they would not otherwise have done

    • Then, does copyright give too many rewards? Catches letters holiday photographs, amateur paintings

  • Reward being deserved where the person invested labour (irrespective of their ulterior motives or the pleasure or pain of laboring)

• Questioning the nature of the reward: why should a person be granted an exclusive right? There are other systems of reward that have fewer social and economic costs.

  • Copyright allows the public to determine who should be rewarded and the size of that reward: the more copies being purchased, or more times a song is played on the radio, the greater the financial reward that accrues to the copyright owner

  • A property right consequentially is often the best way to ensure the award is proportional to the public’s appreciation of the work.

3. Argument based on speech right

Protecting the expressive autonomy of authors or as an unwarranted constraint upon autonomy.

• Kant (German philosopher) – copyright law serves as the legal mechanism to ensure that only persons authorized by the author ‘speak’ in the name of the author

• If unauthorized persons publish or communicate works without authorization, in effect they are compelling the author to speak, hence harming the author’s autonomy.

Inherent limits to this theory – one author’s rights should give way where another author needs to copy parts of an earlier work to express themselves effectively.

4. Incentive argument

What is good for the society or public in general. Production and public dissemination of cultural objects (books music art films) is an important and valuable activity. Without copyright protection, the production of such would not take place in an optimal level.

• While works are often very costly to produce, once published, they can be easily copied. In the absence of copyright protection, a competitive should copy a book without having to recoup the expense of its initial production.

Copyright provides a legal means to which those who invest time/labour in producing cultural and informational goods can recoup that investment and reap proportional to the popularity of their work.

Criticisms

• Is incentive really necessary for production?

• Will the grant of an exclusive property the appropriate incentive?

  • Exclusive properties impose costs on people who wish to use the work, costs of policing rights and enforcement on owners, and transaction costs on those who seek permissions.

5. Neoliberal economics

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

• Common ownership or non-ownership is likely to lead to over-exploitation. Failure to protect sound recordings by copyright would lead to their overuse, so that the public interest in the recordings would tire, and their value, diminish.

Fears about over-exploitation for physical resources do not apply to cultural resources – the more people who can get access to the works of Shakespeare, Mozart, the better.

6. Arguments from democracy

Copyright is a fortifying our democratic institutions by promoting public education, self-reliant authorship, and robust debate.

• A state measure designed to enhance the independent and pluralist character of civil society (Netanel)

• Copyright encourages greater production, but also ‘is designed to secure the qualitative condition for creative autonomy and expressive diversity’

Lecture Notes

Balancing divergent interests

• Innovation vs. Monopoly –

  • Want the industry to be inventive, innovative – good for the economy. When protecting a creation with an IP right, it creates a monopoly. A balance needs to be struck (promoting innovation vs. protecting creation rights)

• Consumer / individual protection vs. Business protection

• Private ownership vs. public interest –

  • the UK previously did not allow patents over drugs because it should be in the public domain. Now, pharmaceutical companies have patents over their products.

Pros to IP law

IP rights can help companies have a competitive advantage

Protects the results of R&D or creative works

Encouraging innovation

Avoiding freeriding

• People can’t use others’ invention and steal what was a “waste their time”

Company valuation

Justifications of IP

• It does not sanction use

• Law needs to follow societal changes (copying CDs to your phone – UK eventually allowed private copyright infringement as such)

IP concerns place monopolies over commodified knowledge

1. Oncomouse

   1. Immoral to patent a mouse?

   2. Decided that the medical benefit to humankind outweighed the suffering of the animal…

2. John Moore

   1. Taking cells off John and grew the cells, found them interesting and got a patent over the cells. John sued the hospital saying they stole his cells.

   2. At first, the court agreed; but this was overturned by the Supreme Court. It is public policy not to hinder medical research

   3. This changed issues around consent – now need to sign a consent form before the hospital takes any samples from you

3. South Africa and AIDS drugs

   1. 10% of the adult population had HIV AIDS. The South African government had the responsibility to have medical treatment, but the people who had the drugs overcharged

   2. Did not comply with the TRIPS agreement

4. Internet Access to information and knowledge

IDEA OF PROPERTY HAS CHANGED OVER 100 YEARS

Feudal Property – strict hierarchy and social power

• Common property and private property

• Common property is a right “not to be excluded” from property – basis: a right to a revenue rather than to specific things

• Granting of things in return for social duties

• Rights are not easy alienable

Capitalist Property Rights

• Private property right

• Property limited almost totally to private property rights

• Exclusionary

• Easily alienable/transferrable – dropped any link to duty , got rid of the desirability of common property

  • Social rights

• A claim the individual could count on having enforced in his favour by society or the State.

Philosophical justification of IP law

1. Locke – natural right

   1. The fruits of your labour rationale “if one mixed one’s labour with something then...