IPR – Conflicting Interests between the owner and the Society

Property from a legal point of view is a set of rights that arise from sheer ownership and possession of property. Today huge importance is give to the material property. Some of the rights of the owner of property include possession, ownership, application, enjoyment, control, alienation, use, transfer and exclusion of others. When a property is being owned, the ownership may be considered to be permanent and would be passed on the future heirs, provided that is an agreement to the contrary . Property again can be of two types, namely tangible and intangible property.

Tangible property or ‘corporeal property’ includes those that are fixed to the ground and are not movable. On the other hand, intangible property or ‘incorporeal property’ is that which is not fixed to the ground and can usually be moved from one place to another. Some of the forms incorporeal property includes rights over patent, copyrights, designs, geographical indications, trademarks, trade secrets, etc . The property owner has the right to exclude others from doing anything related to the property.

For instance, the owner of the patent has the right to exclude others from making, selling, distributing, marketing and importing the patented product, and the using the patented process. The property of the owner has to be clearly delineated from the property of others. The owner of the property could do anything with his property with certain restrictions. He could sell or use the property, or transfer its ownership . In any Intellectual property right that is allocated, there would be two parties mainly involved with conflicting interests.

These include the owners of the IP and the other parties (mainly the society). Frequently, the government, legislative bodies and the courts would be forming a third party with the aim of framing policy regarding IPR and sorting out enforcement and infringement issues. There may be some amount of conflict between the rights of the owner of the property and the rights of others including the society and the government. In certain countries, there may often be a conflict between the constitutional rights and those that are given by ownership laws.

These two different sets of laws are completely different concepts and have different theories. One set of rules would give greater amount of importance to the state and the society; whereas the other set would be giving greater importance to property laws and ownership. However, there may certain basic reasons for the existence of property rights. Many legal systems consider that the ultimate purpose of having property laws would be to ensure communal wellbeing. Exclusiveness exists in order to permit the owner to make use of his property and to prevent others from misusing his property.

It should exist only to a reasonable extent . Intellectual Property rights are the rights granted by the law to the owners of particular intellectual property, which is obtained through actual intellectual efforts and the use of creativity and the mind. The term intellectual property rights often refer to the rights of the owner to do anything with relation to the property and to exclude others from accessing or using his/her work. Intellectual property is different from other types of property as they are nonphysical and intangible.

They have value based on the presence of certain ideas. There are several forms of intellectual property including patents, copyrights, trademarks, geographical indications, trade secrets, designs, plant varieties, database protection, etc . The intellectual property rights tries to concentrate on the importance of originality, novelty, creativity and skill from the part of the owner. The intellectual property rights are given for certain duration of time based on the type of protection and the jurisdiction applicable.

For example, patents are given for duration of 20 years from the date of priority, whereas copyrights are given for the entire life of the author plus 50 years beyond that . The intellectual property would also be having certain exclusions or fair use clauses that would ensure that the public can perform certain acts that would not infringe upon the legitimate interests of the owner. For instance, with instance to patents, the public can use the information to gather details regarding a drug safety. In the field of copyrights, the public can use the information for the sake of news reporting.

The intellectual property is usually not given for abstract ideas but for concrete and tangible manifestations or expressions of these ideas (Hays, 2003). To know the extent to which conflicting interests with relation to protection of the owner’s work would be applicable, it is important to determine the points for and against intellectual property rights. Certain justifications may be applicable for IP and against IP. At the end of the day, IP would be applicable giving importance to certain issues. Justification of Intellectual Property rights

In today’s digital age, there is a huge argument whether works created from the efforts of the intellect need to be protected by law. Many people may actually question whether it would be morally right for the owner to exclude others from dealing with the work, as certain level of information ethics exist. In the last century, intellectual property rights have thoroughly come under the scanner for being morally applicable. Today, as we are entering the digital age, the moral application of intellectual property rights has reached an advanced stage.

Many people consider that intellectual property, unlike physical property is easily reproducible and dispersible. Making copies of the work would not create a shortage in the market and hence it should be permitted by the law . As we study the justification of intellectual property rights, certain general and specific issues would develop. Many experts consider that the general application of intellectual property rights would be justified, but in certain issues it may be not be justified to implement the intellectual property right.

Two questions frequently asked regarding the moral implication of the IPR laws include:- • Whether the owner of the protected work has a moral right to prevent others from accessing the work – the owner has the right to exclude others from accessing the work provided others pay a sum of money to access the work • Whether the state has the power to make rules in order to secure the interests of the IP owner and prevent others from accessing his work Both these queries are regarding moral standards that are applicable to the state and to the individual. A moral interest is different from a legitimate interest.

It may be morally not acceptable to do certain acts, but it would be legal for performance of certain acts . On the other hand, legal issues may indirect try to prevent abuse of moral issues. Arguments for protecting Intellectual Property There may be several reasons as to why Intellectual property needs to be protected. These include:- 1. Positive effects of protecting Intellectual Property – Currently, several intellectual property right instruments are in force, and studies have clearly shown that they have a positive effect on society. IP laws would ensure that the owners or the creators get a reasonable incentive for their efforts.

On the other hand, they also ensure that the society gets access to the work (be it scientific, artistic, literary or other forms of work), after paying a reasonable royalty to the owner . If such an incentive would not be given to the owner, there are chances that the owner would no longer be interested in creating newer and more advanced works which would be a definite benefit for the society. Many experts consider the duration of several IP rights may be too long (for example copyrights which are protected for a term of 50 years after the death of the author) and too great (for example patents which provide monopoly).

The Intellectual property should to a greater extent aim to protect the moral rights of the owners and to a lesser extent protect the economic rights . Many of the academic organizations are performing advanced research and find that their work are very useful, and are being incentivised for their creations. IP rights would also ensure that artists, scientists, designers, inventors, etc, are paid for the intellectual and creative efforts. They could be provided employment by certain organizations, which in turn would exploit their employment, obtain certain IP rights and gain royalties from others who would be using the creations.

People also consider that IP is one way of moving science, technology, creativity, research, art, etc, forward, as the owners would usually be paid an incentive for their creations. 2. John Locke’s labour justification theory – Individuals who are involved in creating or generating a particular work or product should be rewarded or incentivised for their creations. John Locke strongly stated this through his words ‘every man has a property in his own person’. By using labour and efforts, goods are transformed into another kind.

They would be removed from the common area and put into another area (through the efforts of physical and mental skills). It is also important to note that physical and mental efforts may not always be pleasant and in such a circumstance the creator needs to be paid for his efforts. This would also encourage him to work further and obtain more skilful creations. Locke also considers that social value would be adding greater meaning to labour and in the process there would be a greater need to provide rewards to the owner .

For example, in the case of patent for drugs, greater amount of research conducted on a new drug would bring about greater awareness in the society and would add value to the invention of the creator. On the other hand, copyright need not fulfil the value added theory, as even useless works would be able to obtain a copyright status, provided the work is original. Locke gave prime consideration to the ‘commons’ concept. According to this, anybody after applying certain amount of labour to what existed in the public domain could bring it into the private domain.

John Locke also went on to say that in the public domain the only two limitations to original acquisition from anything that existed in the public domain was the amount of material that existed in the public domain and using the material that existed in the public domain for a negative purpose . The main disadvantage of Locke’s theory is that creators may be given a greater than reasonable protection for their creations, by even protecting what previously existed in the public domain . Locke also does not justify cases in which labour has been expended, but not rewarded.

Take for example the slave age in the US. The slaves toiled hard but did not receive any form of incentive from the owner. On the other hand, in several developing nations, women are still kept to work in households but are not paid any salary or compensation for their efforts. These cases suggest that labour may by itself not be adequate to remove things from the public domain and place them under IP Protection. 3. Karl Marx theory of property – Marx considered ownership to exist over tangible objects rather than intangible material.

For Marx, property was a part of alienation (separation), a way of dividing the rich from the poor. The rich could use their ideas and the efforts of the workers to create a greater rift between the rich and the poor. This is currently what is existent in a capitalistic economy. The original owners of several works would actually not be the owners, but the workers and the employees. Through the contracts of employment, the ownership of several works and creations would be transferred.

Intellectual property may be meant to protect the interests of the owners, but in the case of a capitalistic economy, wherein the corporate would employee several creators, the IP rights would in fact be transferred to the company, and the original owners would not be credited for their inventions . However, in real life circumstances, it is found that a capitalistic economy would depend on creative labour for general production and improvements in such an economy there are chances that the owner would be credited more for his intellectual efforts. 4.

Hegel’s personality justification of property theory – According to this theory, through property, the owner or creator would be able to express him. Hegel said ‘property is the embodiment of personality’. As the personality is a part of the person and has certain unique characteristics, it is protectable . Through Hegel’s theory, artistic works and trademarks seem to be protectable, but not scientific work, as they are not a part of personal expressions. The personal justification theory also works well for protection of the moral rights of the owner, as these would be closely related to the personality.

5. Justification for expenditure of investments and resources – There may be other theories or means of supporting the moral rights of the creators, but to protect the economic rights, justification for investment and expenditure needs to be strongly considered before giving any form of IP protection to the creator. The creator would be spending huge amounts of resources on his creations (be it scientific, artistic, technological or other forms of works). Some of the resources that are spent include human resources, time, money, infrastructure, equipment, use of support systems, intellectual efforts, etc .

Arguments against protecting Intellectual Property 1. The status of intellectual property as an entity – Although intellectual property may be a right worth protecting and would give appropriate reference to the owner, many experts consider that IP unlike real estate property can be simultaneously consumed by many people without actually reducing the supply of the work to the public or restricting the owner himself. Material property can be protected as putting it in the public domain would result in conflicts between many individuals.

However, experts also feel that to maintain wellbeing and order in the public, to a certain extent others should be able to access the work of the owner. However, the very fact that works can simultaneously be consumed by several people without actually creating a short supply in the market does not mean that the IP rights are illegal . Greater importance need to be given to the extent to which people could have interests in a particular work. Also, the fact of works being simultaneously exploited by many people does not justify for the moral protection accorded under IP rights.

2. Freedom of information – Today technology has reached a cutting edge such that people in one part of the world are able to access information that may be existent in another. The internet has contributed hugely to the dissemination and the accessibility of information. Today many countries are giving importance to the idea of having information for free. Dissemination of information is like a new life form (according to Barlow 1995). It should be allowed to spread, interact with other environments, adapt itself and survive.

If information is permitted to replicate and move about freely, then several forms of IP protection may cease to exist. Barlow tries to personify information and abstract ideas, as they have certain desires . However, Barlow may not be right in several ways with his idea, as only people having certain characteristics would be possessing desires. 3. Consideration of social issues – IP rights may not be legal, as they are meant for use by the society and would ultimately land in the hands of the society.

The owner has no right to prevent others from using his work. Any artist or scientist would develop skills, knowledge and competence by using efforts from those existent in the society . For example, the teachers belonging to a particular school would be incorporating learning for the benefit of the society. After the artist or the creator becomes competent in the art or the science, he would be using the very resources given to him by the society and be using it in his work. He has to right to exclude the public from his work .

However, this mean of justification does not imply that the work should be accessible for free to the public. As people would be compensated for imparting knowledge and practical skills, in the same way the creator has the right to reasonable charge anybody from the public for accessing his work. However, the author has no right to exclude anybody who pays reasonable for accessing the work. 4. Right to freedom of speech and expression – The constitution of several nations gives the right to freedom of speech and expression. Any limitation to this right can be seriously argued in the courts.

When one person accesses a protected work of an author he had the right to disseminate the information through freedom of speech and expression . Several broadcasting companies are also trying to broadcast copyright-protected material using the right to freedom of speech and expression clause . However, the constitution may itself provide a solution for this clause, as none of the fundamental rights afforded are given to an unlimited extent. There may also be other rights of the owner (such as contract agreements, secrecy rights, etc), which would limit the extent of the right to freedom of speech and expression. 5.

IP could affect spread of ideas in a digital form – Barlow feels that IP is currently preventing the transmission of ideas from one mind to another in an electric format. It is also important to note that IP would protect the expression of ideas and not the ideas themselves. Today, for sharing information, a physical copy is not even required . When information is existent on the internet, it would exist in a digitalised format, consisting of electric signals. These electric impulses are not able to interact with physical objects. The digital information would just be an abstract object that cannot be protected .

However, this may not totally justify for an argument against IP protection as ultimately digital information would be interpreted in particular format that would be worth protecting. 6. Excessive protection of intellectual protection rights would result in unfair competition – An owner of a patent may not try to work his invention at a reasonable rate or not try to work the invention to meet the demand of the public. In the same way, an owner of an artistic or literary work may not make his work available in a particular nation, or make it available at a very costly rate .

In such a circumstance, there should be instruments to protect the moral rights of the author but at the same time ensure greater protection of the needs of the public. The main objective of IPR would be to meet the reasonable demand of the public at an affordable price. The law should permit suspension of the IPR until the reasonable need of the public has been met. At the moment, antitrust laws and statutes against unfair competition are given greater amount of protection, which is aimed at protecting the interests of the public.

This was evident in the case against Microsoft Corporation 2004 for providing interoperability details regarding its operating servers. Both the US Courts said that Microsoft had tried to gain monopoly in the market by linking their operation systems with several other software programs and in this way preventing other companies from working their software on Microsoft Windows operated systems . 7. Interoperability and free passage of good in the EU – This can be considered as a limitation to the extent to which IPR would be applicable.

With reference to patents, the owner can prevent importation of goods into a particular nation that has given patent protection. However, in a particular area where open system of trade exists permitting interoperability (to meet the user’s expectation) would be allowed. Patents cannot oppose this process of interoperability as it would mean preventing the reasonable demands of the public . The public existing in a certain area can also make use of the products that exist in other areas. Restrictions to trade would mean providing the IPR owner with rights that may not be justifiable.

Rights of the Owners and others with respect to IPR Intellectual property rights should be an instrument that ensures protection of interests of all parties including the owners, general public, customers, and the government. The government and legal bodies need to have a close case by case analysis of any application for which protection of IP is sought. Depending on the exertion of labour, efforts, creativity, originality, skill, knowledge and experience, the IPR should be rewarded for a limited duration, and subjected to certain restriction that would enable access to the public at a reasonable cost.

Careful analysis is required at this stage, as potentially others would be excluded for accessing that content for a specified duration of time. The monopoly in such cases needs to be limited. They should not interfere with the competitive nature of the market. All competing interests need to be appropriately weighed. The creators may often exaggerate at the amount of labour, efforts; time and investment spend on their creation. However, a clear judgement needs to be made before providing economic and moral protection of the creation .

In order to balance interests of various parties, a lot depends on the strength of the interest by the people for the work created. At times, the work of the owner would be vital for the protection of life and wellbeing of various people. In such a situation, it may be required that the owner’s work be given to others immediately, but also ensure that the owner be reasonably compensated for his intellectual efforts . However, it is also important to note that several IP may not always be meant for the advancement of sciences and hence, the public may not have a strong argument to help justify their interest .

In such a circumstance, even if the work did not exist, the demand for the work would not be present. For instance, if Shakespeare did not create Hamlet, there would still not been any demand for Hamlet. Many people would be using illegal means to access artistic works. The need for accessing without paying the owner dues is not justified. The works are mainly meant for entertainment and hence illegally sharing or accessing the work should be considered a violation of the rights of the owner.

In cases of certain artistic works not being created, the demand for it would not exist, and hence, there would not be conflicting interests. However, the law also need to consider the fact that since the moral and legitimate interests need protections, any measures can be performed. Currently, experts feel that the owner should not be given perfect control over his work. This would result in preventing transmission of information and reduce the wellbeing of others . Conclusion IPR has been initiated right from ancient times, but recently there has been an upbeat of IP following the digital revolution.

It is important that the legitimate interests of both parties including the owners and the general public have been met. The interests of both the parties would exist and conflict with one another. But it is the role of IPR to prevent any kind of abuse of ownership or rights of others. The IPR should be worked at a reasonable cost for the public. The public should also give greater amount of protection to the moral rights of the owner. Currently, the abuse of IPR rights over the digital media needs to be thoroughly reassessed in order to prevent abuse of rights on either side .

IPR should aim at incentivising innovation and also ensuring that the public can make use of it after due credit to the owner . References Canetti, B. Microsoft Champions Intellectual Property Rights and Loses To European Union Competition Law: Proceeding Under Article 82 Of The Ec Treaty Case Comp/C-3/37. 792 Microsoft, March 24, 2004, Journal Of Law, Technology & Policy, vol. 2004, no. 1, pp. 171-179. http://www. jltp. uiuc. edu/recdevs/canetti. pdf Harhoff, D. Intellectual property rights in Europe – where do we stand and where should we go? , 2006, retrieved 17 January 2008.

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