#3608 - Justifications, Copyright 1 (Subsistence) - Intellectual Property Law

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

2. 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

3. 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”

4. 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

5. 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.

6. 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 rights

Reward

• Counterargument: originality requirements is very low

  • e.g. pictures or letters have copyright

  • thus is wrong to say copyright is a ‘reward’ here

Incentive Theory

• Surely it is case that people don’t write books/compose music out of desire for economic reward?

  • Very few people suspect they will become rich when writing their first book/taking a photo

• Deazley: is no definitive evidence that a strong copyright regime results in greater levels of creativity or innovation.

Economic Theory

• Counter-argument: fear of over-exploitation of resources simply does not apply in relation to copyright

  • i.e. copyright is a cultural resource

  • thus the more people who have access to cultural works, the better

• Deazley: likewise, is complete lack of evidence as to whether copyright benefits the creative economy.

Democratic Argument

Netanel

• Copyright promotes an independent and pluralist civil society

• Is a state measure which encourages self-reliant authorship and robust cultural debate

SUBSISTENCE OF COPYRIGHT

1. Appropriate subject-matter?

2. Qualifying person?

3. Ownership?

4. Term?

5. Infringement?

• Restricted act?

• Defence?

6. Remedies?

• To show subsistence of copyright, necessary to show:

1. Appropriate subject-matter

2. Qualification

3. Originality and fixation

Subject Matter

Copyright, Designs and Patents Act 1988

• Section 1: Copyright is a property right which subsists in:

1. Original literary, dramatic, musical or artistic works;

2. Sound recordings, films or broadcasts;

3. And the typographical arrangement of published editions

• What constitutes a copyright ‘work’ is a matter for objective determination by the court.

• Thus for part of a large work to be a ‘work’ in its own right, must be sufficiently separable from the larger work

• Coffey v Warner [2005]

• NB is possible for something to contain many works at once

  • Newspaper: contains literary work, artistic works (photos) and a typographical arrangement

  • CD of song: contains literary work (lyrics), musical work (music) + sound recording

• Possible for something to constitute more than one work at same time

  • Norowzian [2000]

1. Literary Works

Section 3

• Literary work means any work, other than a dramatic or musical work, which is written, spoke or sung.

• This includes:

1. table or compilation

2. computer program

3. database

• Section 179: writing includes any form of notation or code:

• whether by hand or otherwise

• and regardless of medium in or on which it was recorded

• Thus fact that work is stored in digital or electronic form does not prevent it being ‘literary’.

• Nova Productions v Mazooma Games [2006] (source code for video game)

• ‘Compilations’: e.g. TV schedules, any other list of information.

Databases

Copyright

• Section 3A: Database is a collection of independent works, data or other materials which:

  1. are arranged in a systematic or methodical way

  2. and individually accessible by electronic or other means

• Only constitute literary work where they represent ‘author’s own intellectual creation’

• Is potentially of huge breadth

  • i.e. many things which would traditionally amount to compilations will not be classed as databases

  • e.g. a collection of literary works

• Do not have to be electronic

  • thus e.g. a football sticker collection could be database

  • i.e. as it is a collection of independent artistic works

Sui Generis Right

Database Directive 1996

• Introduced a sui generis right

• i.e. even where database is not sufficiently original to have copyright, still protected under sui generis right

• Definition is same as for copyright database (see above)

• Protected provided...