The world intellectual property rights organization (WIPO) has the responsibility of trying to ensure that all the creative rights are protected. The rights encompasses such products: as literary as well as artistic works. Among these are also commercial names and symbols, images as well as commercial designs. Intellectual property fall into two categories, Industrial property category, and copyrights which includes artistic works writings symbols and the others. The term intellectual property came into use in 1967 when the Intellectual property organization was formed. Though the term entered into use when the Bayh-Dole act was introduced in 1980.
The term was first mentioned in relation to protecting the works of others by a court in Massachusetts, way back in 1845. This was in a case that the court ruled for the need to protect the intellectual property of others. This was probably a pace setter for the legislations and jurisdictions that were to follow later all geared towards the protection of intellectual property.
The aim of intellectual property law is to protect developments and innovations. It has become a key feature in international legislation as well as industrial legislation. It has played a key role in determining industrial relations as well a cooperation between market players in different areas of the economy. The term Intellectual Property has found a lot of widespread use. The application has been as varied as the laws enforcing the same. This has drawn all manner of reactions from different quarters. Some feel it is the right application for the word while others fell it is not. More so the are those who feel that the whole idea is wrong
Intellectual property rights have been a vital player in enhancing economic development. However in order to be patented, and industrial right should meet the following requirements. They must have novelty, should be an inventive step and should be capable of industrial application (Rozanski 2007). This therefore ensures that, what is being patented is both meaningful and an improvement on what already exists. The fact that there is insistence on meaningful inventions imply that not everything can be patented.
Intellectual property rights is considered like some form of monopoly. This has given it more strength especially in capitalist markets. The fact that capitalism and monopoly go hand in hand therefore there are many reasons for the two to work together. The nature and manner in which intellectual property relates with market growth is been said to be like a form of insurance. The question that arises in such situations is, what about the socialist economies?. How does intellectual property relate with such economies.
There has been arguments against intellectual property. Top is that intellectual property inhibits competition. This has been a major debate with the proponents arguing that it hinders growth. Dixon and Greenhalgh (2002). Other arguments have been that it is a major hindrance to developing countries in their efforts to make short term solutions to perennial problems such as shortage pharmaceuticals. Hisamitsu, (2002) however the question always is, if a farmer is protected from crop thieves, similarly an artist should be protected from plagiarism. The question on how far the protection should go also arises. A different school of thought takes the thinking that, intellectual property rights encourage selfishness.
The legal frameworks that have been set on intellectual property have evolved over time. This has seen varied modifications on the legislation surrounding intellectual property rights. Since the rights were first mentioned by the French way back in 1791, when section 1 of the French law recognized discoveries as property, there has been tremendous developments in classifying the different categories of intellectual property, as well as enacting the appropriate legislation that covers the same. These developments have eventually culminated into a well documented and strictly adhered to intellectual property law. The worldwide intellectual property practices have registered a lot of inconsistencies and, this has posed a lot of challenges in both the implementation and the adherence to these laws.
The faces of intellectual property rights.
Intellectual property rights fall in two different categories. In the first category is the industrial property rights. This protects creations and inventions that are meant for industrial purpose and trade. This is protected by giving a patent to the inventor which, covers the usefull and non obvious inventions. The inventor is given exclusive rights for a period of time. This bars other people from using the invention without the permission of the author. WIPO (2008). This category also includes trademarks and trade secrets that are illegal to disclose to the public without the express permission of the authors The inclusion of market models in this category has been as source of serious debate over the suitability of the laws and their interpretation .
The second category encompass the Artistic works. These include such works as those of musicians, writers, actors and the movie industry as well as other artists. The author has the exclusive rights for the production of such work for a period of time. The legal interdependence as well as limitations in territories that face the patent rules tend to complicate application and the related jurisdiction of the same. Sender (2002). This creates a gap on how well this section of the IP can be effected. At times, artistic works tend to duplicate, or have a lot of similarities.
The above two categories give the feel of what the intellectual property encompasses. The term Intellectual Property (IP), has been used to refer to the Rights and the legislation and not the property itself thees rights encompass both the right to practice as well as disclose the information to the public. The world intellectual property rights organization (WIPO), is charged with the responsibility of seeing to it that these rights are dully protected, however the question that comes is, are there any disadvantage, benefits and barriers facing such an organization?
According to Quinn (2007), the law on IP refers to a set of five laws that are all geared towards protecting the IP holder. These five laws are Patent law, Copyright law, Trademark law, Trade secret law and the law of the Right of publicity. The firm laws whether applied in tandem or separately are geared towards the protection of the Intellectual Property. These form a set of comprehensive laws that require harmonization and adherence.
The good side, the bad side and the challenges faced by the enforcers of IP.
Starting with the good side,the intellectual property has in many instances been praised for the stimulation of industrial growth, World bank (2002). It is a sensible argument the, if the inventors and discoverers feel protected they are likely to work better. The same applies also for the composers and creative artists. Provides an environment that encourages free interaction as well as quality inventions and innovations. Such protection is vital for the growth especially of industrial technology.
As its is written by Shapiro (2007), IP protected companies produce employees who are 72% more value added than those industries without IP protection. This implies an increased productivity of such companies as well as their employees. The role of intellectual property in employee performance is more apparent in research institutions. The people engage in research do so in the knowledge that their discoveries, inventions and innovations will be, protected. However there could be other factors in these companies that lead to such behavior from the workers. It could be that they have better facilities and better working conditions.
Intellectual property also plays a major role in protecting the discoveries, innovations as well as the intellectual resources of the countries that do not have an economic muscle. This is especially the case where an innovation is made in such countries as the third world countries but the bigger richer economies have the intent of grabbing away such discoveries. This has however been seriously hindered by reduced compliance of these countries with the WIPO systems.
The consistent defense of intellectual property has also aided education institutions. It protects teachers from having their work plagiarized by students or vice versa. This therefore protects the artistic or the inventive mind of the student from abuse. This also has major economic bearing since most of the discoveries can be patented and used for economic purpose.
One of the major disadvantages of intellectual property is its limiting of the spread of technology. This is more so because technology cannot be easily transmitted to other areas once it is developed. This is especially the case in instances where the piece of art or technology being patented is widespread. For examples in instances where cultural artifacts may be patented as an original piece of work. This may end up disadvantaging other adherents of the same.
Intellectual property is also highly monopolistic. This implies that at times it gives one person too much power over the others. This limits the number of people who are benefiting from a piece of work or a scientific invention of some kind. According to Rozanski F (2000), intellectual property puts the poor, especially those in Africa a disadvantage especially in accessing medical care. This is seen in that, they are not free to develop cheap generic drugs that are affordable because it will culminate into a breach of intellectual property. This is despite the fact that, the other line of drugs are very expensive, hence they cannot afford.
The international laws on intellectual property right seek to harmonize and incorporate many different laws. This make them have a bunch of conflicting regulations. This ends up including even areas that should not be included in intellectual property such as marketing strategies and software. These limit growth since they restrict the dynamics of the market from playing their role in the market changes. It is in the spirit of free exchange that, such limits should be reduced to ensure good growth as well as the necessary economic competition and interaction.
Among the challenges faced by th enforcers of IP is the problem of different laws in different countries. There are varied laws in different countries. The problem lies in the international regulatory bodies finding their way into these countries and enforcing the laws universally. This especially is a problem since different countries enforce the IP laws with different levels of strictness.
The problem of identifying cultural knowledge and protecting it is also a major consideration. This is especially the case in the countries that are underdeveloped since most of their practices are not documented. The traditional knowledge poses a problem since its date of creation as well as its source are not known. This become a big challenge especially to the western oriented intellectual property systems, Dixon & Greesnhalgh (2002).
In efforts of avoiding rampant spread of intellectual property theft, small scale inventors are at risk. This is because, their inventions might end up getting patented by other big companies hence putting them at a disadvantage. This has led to reduced embracing of the intellectual property law in such areas. This is the case with those in poor countries where they might get cheated by big multinational corporations.
The set up of good intellectual property rights infrastructure that is in accordance with the international legislation requires both money legal provisions. These are hard to come by since some of these countries cannot afford to fund basic infrastructure, Albaladejo & Lall (2002) . This implies that it will be hard for such countries to implement the IPR in their own areas. These are key problems being faced by the implementation of such a charter. The information that is necessary for the execution of the IPR laws is not readily available for all especially in these developing countries.
The implementation of intellectual property becomes a challenge. For example in institutions that are funded and mandated to do research. This is for example the case that happens in research centers. The people in such centers are mandated to carry out research by either governments or other funding institutions. For example scientist may be funded by pharmaceutical company to research on a drug. They can not claim IP because they were paid to research. However this id not to mean that what they developed is not their own invention. This is a very fertile ground for controversy.
The system of registering states that are signatories of the Hague agreement, and then charging the with the responsibility of overseeing compliance is also a major challenge. Many states are likely to be biased towards the effecting of the IP. The interpretation of the laws may also vary since the laws are many and varied giving a room for ambiguities. This is also a major challenge of the system.
The rejection of intellectual property altogether has also been apparently seen in some critics. Their argument is that the promotion of the term can be attributed to those who stand to gain from the use of the term. They claim that such terms are different laws from different sources that have been lumped together to make these laws,s Stephan (2002) . This is in ignorance of the fact that these terms as well as the legislations originated from different quarters.
Hence intellectual property has also found opposition especially in those people who believe that it is an enemy to the free movement of knowledge as well as the social growth. This is especially the case since in most instances the law has discouraged the exchange of information. Few might argue against the economic benefits of intellectual property, but very many will argue against the existence of any economic benefits.
Summary and Conclusion
Intellectual property is a word that has been coined from the words that are used to refer to the creative works of a person. They also include the inventive or innovative works. They are words that do not refer to the property but to the rights that the person who originally developed such property has.
The term refers to both industrial patents as well as the copy rights. These copyrights include protection against infringement on symbols as well as trademarks that identify a brand of a particular company. This could be of a major importance in the market as well as the way the brand is perceived by the competition.
Several advantages have been attributed to IP, these include the protection of economic rights of inventors thus raising the economic development of a country. Besides this the intellectual property have been a reason for assured economic exchanges between different countries especially due to the fact that they know that their interests are protected.
Intellectual property also have been responsible for the Increased flow of information between researchers. It has also opened the knowledge gap.
Intellectual property has been a seen as a reason for many woes. Among them is that it has been a hindrance for development in the underdeveloped countries. This is especially the case since the countries cannot adapt other technologies into a cheaper form for their home use. This has especially hampered the development of other alternative sources of important materials such as pharmaceuticals, especially in these countries. It as well has been blamed for hindering competition and inhibiting development by limiting the exploration space
Intellectual property has seen many hurdles in its being effected. Among them is the failure of the laws to be easily adaptable to the laws in the different countries. The other problem is the lack of infrastructure in the undeveloped countries to implement the laws. For example the countries that have not developed good and efficient monitoring systems to oversee such legislation. These countries also need the financial capabilities to enable them develop a good database. This database is supposed to incorporate; the developments, all the patents as well as all the cultural and communal resources. This ensures that other cultures are safe in case of cultural exchanges. This also would be good in encouraging the he trade in cultural artifacts.
Intellectual; property has attracted its fair share of critics. Many feel that it has helped and plays a vital role in growth. Others feel that intellectual property in monopolistic and capitalistic law that is biased. Others yet feel that intellectual property ought to be developed and applied differentially to accommodate those in different regions. All these are opinions held by different people depending on where they lie on the divide. The law however requires to be harmonized and simplified to avoid ambiguities. This will also deter the arguments and counter arguments arising from interpretation. There were inventions long before the WIPO came into being. If the WIPO has played any role in the developing inventions is subject to debate.
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