[CR] Justifications of IP

Question 1

What is IP?

Answer 1

“Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.” -WIPO

1) Property rights/rights conferring legal protection over
2) Intangible products

Question 2

The Essence & Value of IPRs

Answer 2

it turns intangible assets into exclusive property rights, albeit for a limited period of time.
It enables your SME to claim ownership over its intangible assets and exploit them to their maximum potential.

In short, IP protection makes intangible assets … into valuable exclusive assets that can often be traded in the market place.” -WIPO

Question 3

Main justifications

Answer 3

1. Natural Rights (moral)
2. Reward (moral)
3. Incentives (instrumental/utilitarian)
4. Economics (instrumental/utilitarian)

Question 4

Natural Rights Justifications [MORAL]

Answer 4

John Locke - The labour of his body, and the work of his hands, we may say, are properly his.

French Patent Law - “it would be a violation of the rights of man in their very essence if an industrial invention were not regarded as the property of its creator.”

Question 5

Just Rewards [MORAL]

Answer 5

J.S. Mill - “gross immorality of the law to set everybody free to use a person’s work without his consent, and without giving him an equivalent.”

Question 6

Some Difficulties/Questions for moral justifications

Answer 6

1. “to talk of the ‘natural rights’ of an inventor is to talk nonsense.” J. Bentham
2. Once an idea is communicated, how can its use be exclusively controlled?
3. “… so-called “intellectual property” is neither control of a thing nor of an idea but rather “control of a market” for things embodying an idea.” (Machlup & Penrose, at. 19)
4. “to talk of the ‘natural rights’ of an inventor is to talk
5. In modern economies, inventors and authors seldom own their inventions. Copyright and patents are typically owned by publishers and employers who have the power to control the commercial exploitation of the works. [WIPO]
6. Copyright & patent holders may derive a benefit/profit which is disproportionate to the value of the invention and authors/inventors may not get their fair share/just reward. [WIPO]

Question 7

R & D Incentives [UTILITARIAN]

Answer 7

• IPRs provide inventors with an incentive to invest in research and development of new products.
• Creative artists or inventors can maximize their economic returns by assigning their rights to others who are better positioned to exploit them.

Question 8

Cons of utilitarian justifications

Answer 8

1. Tension between protection of IPRs and competition in free market economies
2. IPRs create monopolies which can be abused (e.g. Microsoft litigation)
3. IPRs create tollbooths on downstream innovation (Myriad Genetics)

Question 9

Social & Economic Value

Answer 9

1. IPRs are most effective means of promoting economic growth and technological innovation
2. IPR value is maximized through (free) market exchanges

Question 10

Other issues with IP:

Answer 10

1. Fair balance between rights of IPR owners and the public?Fair use? IPRs stand in the way of diffusion of knowledge as a ‘public good’ (cost of licensing fees denounced by Harvard Library and others)
2. Tension between protection of IPRs & human rights/health/knowledge/science/medicines