#15026 - Justifications - Intellectual Property Law

• RATIONALE (Bentham): Laws are socially justified if they bring the greatest happiness or benefit to the greatest number of people

• RATIONALE (Hettinger): Justifications for IP rights are not strong, but utilitarianism provides the best justification

  • IP rights are “incentives for the creation of a socially optimal output of intellectual goods”

  • Restricts current availability and use for the purpose of increasing future availability and use of new intellectual products

    • Should question if the rights increase future availability more than they restrict (e.g. short term rights might be better)

  • Patents might be used “as a device to monopolise industries”, so they are not necessarily “conducive to a strong competitive economy”

• RATIONALE (Croskery): Information goods are excludable, non-rival goods

  • Excludable: Can be provided to one person without being provided to everyone

  • Non-rival: Multiple uses do not conflict

  • Mix of government and market control is needed

    • Government control helps to avoid the collective action problem (incentive to free-ride on non-rival goods)

    • Market can help determine consumer preferences

• RATIONALE: Ability to free-ride undermines allocative efficiency

  • Bulk of the cost of creating IP is the initial investment, whereas reproducing is much cheaper so free-riding is more attractive than creating

• RATIONALE (Landes and Posner): Especially for trade marks

  • Charging a price for a public good reduces access to it by making it artificially scarce, but it increases the incentive to create it in the first place

• ISSUE (Lemley): IP should be regulated by the market instead of long IP rights

  • Exclusive rights allow creators to charge a “supracompetitive price”

  • Creators are necessarily the best placed to exploit the intellectual product after its creation, the market is better at finding out optimal distribution and price

    • Others may be better placed to improve on the work

  • Challenges the idea of tragedy of the information commons

    • Information isn’t finite and consumption is nonrivalrous

• RATIONALE: The creator is entitled to control what he creates

• ISSUE (Spence): Humans do not create ex nihilo so all their works are influenced by the genre or culture they are in

  • Copyright concerns the relationship between creators and 3^rd parties

• RATIONALE (Locke): What a man mixes his labour with becomes his property “at least where there is enough, and as good left in the common for others”

  • Applied to IP: By mixing intellectual labour with the ideas, theories or raw materials in the commons, the creator should gain a property right

• ISSUE (Davies/Aplin): Total value isn’t necessarily attributable to the labour

  • Value of some creations may result from social influences (e.g. trade marks)

  • Labour only adds value to the existing materials, so why should the creator receive a right over the entire value and not just the added value

    • E.g. Writing literature builds on other works in the genre

  • Alternative mechanisms might be used to reward creators instead of property rights

    • E.g. awards, acknowledgement, status, support

  • The proviso requires that enough be left in the commons

    • Not always clear what the commons consists of and how much is enough

• ISSUE (Spence): Unclear what counts as being worth protecting

  • If based on the labour, what degree of effort is required?

    • Risk of “protecting only the perspiring, and not the inspired, creator”

  • If based on the contribution, what level of contribution is required?

    • Who decides what is a valued contribution?

  • Creator might already be rewarded in other ways (e.g. recognition)

• ISSUE: If most IP rights are assigned to employers, whose labour is really being rewarded?

• RATIONALE (Hegel/Kant): Property is a mechanism for self-actualisation, personal expression and dignity

  • Alienation of the ideas inherent in the self is an expression of the self

  • Others cannot create more copies because that infringes on the creator’s right to his “universal aspect of expression”

• ISSUE (Hughes): Not all works are equally suited to displaying the creator’s personality

  • Art, literature and music are “clearly receptacles for personality” whereas software and technology is influenced more by economic efficiency/physical limitations

• ISSUE (Spence): 2 Objections

  • Questionable how many works constitute or intended to embody the creator’s personality.

    • The concept of personality itself is problematic

  • Unclear why the creator should be able to control the expression if the use doesn’t distort/change the meaning of the work but is merely an accurate reproduction

    • If the creator must have control, need to grant right of personal autonomy.

• RATIONALE: The unauthorized use causes harm to the creator

  • Whereas the would-be user is not harmed by being excluded

• ISSUE (Spence): This is not a well-reasoned justification

  • Unclear that unauthorized use causes harm per se

    • Unless the public perception of the work or the work itself is changed

    • Usually, the works are not “crowdable” so unauthorized use is not harmful

    • Cannot say that the creator is harmed from not being able to profit from the use, since that assumes a existing right to exclusive use

  • Unclear that exclusion doesn’t harm the would-be user

    • If the work has become part of the culture/social life, preventing others from using it may make them worse off

    • Use of the work might be necessary to comment on the work (esp copyright)

  • Unclear that this type of harm deserves legal remedy in the first place

• RATIONALE: The unauthorized user shouldn’t be allowed to reap without sowing

• ISSUE (Spence): This isn’t an independent principle that can be used to justify entitlement

  • There is only unjust enrichment if we assume that the creator has a stronger existing entitlement to the creation

• RATIONALE (Treaties): Based on the right to property

  • UDHR Art 27: Right to protection of moral and material interests resulting from scientific, literary or artistic production of which he is the author

  • ECHR Art 1 Protocol 1: Peaceful enjoyment of possessions

  • Charter on Fundamental Rights: IP as within the scope of possessions

• ISSUE (Yu): This might “undermine the claim that human rights are of fundamental importance to humanity”

  • Not all attributes should qualify as having the importance of human rights

  • Classification as human rights might lead to unnecessary expansion

• ISSUE (Drahos): Property rights are not the only human rights affected by IP

  • Unclear that IP rights should be human rights

    • IP rights exist for a limited amount of time, unlike fundamental rights

    • We don’t view States that lack a IP system as breaching human rights

    • Might be based on personality theory, but that doesn’t apply to all IP

    • Is universal recognition enough to make it a universal right?

  • IP rights should be viewed as instrumental rights to serve truly fundamental needs

  • Use of IP rights can affect right to health, development and cultural rights

• Many of the IP rights were developed a long time ago, so they are perhaps unsuited for the current age

  • Fact that CJEU had to decide in Meltwater that browsing was legal, shows the law is playing catchup

• Internet has affected the way things are distributed and the ease with which they can be reproduced and shared

• Much more concern about balance now

  • Copyright: author’s rights vs user’s interests (in using and adapting)

  • Passing off/Trademarks: protecting investment vs allowing competition

  • Patents: protecting investment/prospect theory vs allowing follow-on innovation and availability of use.

• Justifications framework oversimplifies the ways in which laws are generated. That being said, it is still useful to be aware of the key features and limitations of the justifications usually propounded for IPRs, not least because these arguments tend to be utilized, either separately or cumulatively, in the context of law reform.

• As one commentator has observed, ‘The other reason intellectual property theory retains value is that it can catalyze useful conversations among the various people and institutions responsible for the shaping of the law.

NOTE: Copyright started as censorship tool, then to regulate authors-publishers, now creators-users.

Harm: Can be accurately reproduced without negatively affecting the work, so is there harm?

Labour: New works are very heavily dependent on existing works

• Most authors also assign all their copyright to employers

• ISSUE (Spence): Much of what copyright produces would be created without IP

  • When dealing with physical objects (e.g. fine art), the author earns from selling the original work

  • Copyright is affected too much by vague rules applied by judges (e.g. substantial part)

  • Copyright prevents only reproduction, but building on an idea in an earlier work often involves reproducing a substantial part of the expression as well

• Better suited to displaying author’s personality (Hughes)

• Civil law countries (e.g. France) have strong support for creators’ moral rights

  • Berne Convention requires rights of attribution and integrity

• ISSUE (Ginsburg): A “deeply personalist justification may seem alien” to English copyright

  • Personality: Since the work incorporates the creator’s personality, deformation or mutilation “constitutes an attack on the person or the personality”

  • Protection of creators’...