International Intellectual Property Law and Human Security

Additionally, investments in intellectual goods suffer from problems of appropriation — while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price.

Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection".

The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions". Other recent developments in intellectual property law, such as the America Invents Act , stress international harmonization. Recently there has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility.

These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union. The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations.

The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development. The Anti-Counterfeiting Trade Agreement ACTA states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally". Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets.

A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth. According to Article 27 of the Universal Declaration of Human Rights , "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual.

Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work. Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as:. Lysander Spooner argues "that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases".

Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property.

To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act. Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action. Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder.

The scope of the patented invention or the extent of protection [63] is defined in the claims of the granted patent.

There is safe harbor in many jurisdictions to use a patented invention for research. This safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.

Copyright infringement is reproducing, distributing, displaying or performing a work , or to make derivative works , without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator. It is often called "piracy". Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services of the other party. In many countries, a trademark receives protection without registration, but registering a trademark provides legal advantages for enforcement. Infringement can be addressed by civil litigation and, in several jurisdictions, under criminal law. Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available.

In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. This law contains two provisions criminalizing two sorts of activity. The first, 18 U. The second, 18 U. The statutory penalties are different for the two offenses. In Commonwealth common law jurisdictions, confidentiality and trade secrets are regarded as an equitable right rather than a property right but penalties for theft are roughly the same as in the United States.

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Criticism of the term intellectual property ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like property and rights in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.

Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion". He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights".

He argues that "to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of 'intellectual property'. Similarly, economists Boldrin and Levine prefer to use the term "intellectual monopoly" as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights.

On the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers. He mentions that "if copyright were a natural right nothing could justify terminating this right after a certain period of time". Law professor, writer and political activist Lawrence Lessig , along with many other copyleft and free software activists, has criticized the implied analogy with physical property like land or an automobile.

They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original. Stephan Kinsella has objected to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas. Entrepreneur and politician Rickard Falkvinge and hacker Alexandre Oliva have independently compared George Orwell's fictional dialect Newspeak to the terminology used by intellectual property supporters as a linguistic weapon to shape public opinion regarding copyright debate and DRM.

In civil law jurisdictions, intellectual property has often been referred to as intellectual rights , traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early s, as use of the term intellectual property has increased. Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman.

The backronyms intellectual protectionism and intellectual poverty , [81] whose initials are also IP , have found supporters as well, especially among those who have used the backronym digital restrictions management. The argument that an intellectual property right should in the interests of better balancing of relevant private and public interests be termed an intellectual monopoly privilege IMP has been advanced by several academics including Birgitte Andersen [84] and Thomas Alured Faunce.

Some critics of intellectual property, such as those in the free culture movement , point at intellectual monopolies as harming health in the case of pharmaceutical patents , preventing progress, and benefiting concentrated interests to the detriment of the masses, [86] [87] [88] [89] and argue that the public interest is harmed by ever-expansive monopolies in the form of copyright extensions , software patents , and business method patents. More recently scientists and engineers are expressing concern that patent thickets are undermining technological development even in high-tech fields like nanotechnology.

Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:. Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation. Peter Drahos notes, "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many.

This has consequences for both political and economic freedoms with in a society. The World Intellectual Property Organization WIPO recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits. Further along these lines, The ethical problems brought up by IP rights are most pertinent when it is socially valuable goods like life-saving medicines are given IP protection.

While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug. Libertarians have differing views on intellectual property. Kinsella uses the following scenario to argue this point:. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it.

They naturally imitate Galt-Magnon, and they start building their own cabins.

But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property e. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.

Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. In the RSA launched the Adelphi Charter , aimed at creating an international policy statement to frame how governments should make balanced intellectual property law. Another aspect of current U. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.

Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope. In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies.

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Patents have been granted for living organisms, [] and in the United States, certain living organisms have been patentable for over a century. The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe. Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights.

In framing its presentations, the association has claimed that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property.

The growth of the Internet , and particularly distributed search engines like Kazaa and Gnutella , have represented a challenge for copyright policy. The Recording Industry Association of America , in particular, has been on the front lines of the fight against copyright infringement , which the industry calls "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster , and some people have been prosecuted for sharing files in violation of copyright.

The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. Laws such as the Digital Millennium Copyright Act have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems.

Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright , or uses allowed by the copyright holder. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in , which formalized regulations for IP rights that had been handled by common law, or not at all, in member states.

Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Intellectual property has become a core tool in corporate tax planning and tax avoidance.

In , both the U. The departure of the U. From Wikipedia, the free encyclopedia. This article is about the legal concept. For the film, see Intellectual Property film. Authors' rights Database right Indigenous intellectual property Industrial design right Integrated circuit layout design protection Moral rights Plant breeders' rights Related rights Supplementary protection certificate Utility model. History of copyright law and History of patent law. Criticism of patents and Opposition to copyright. That comes from schemes that facilitate profit shifting. The making of modern intellectual property law: Oxford English Dictionary 3rd ed.

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