Notes for Intellectual Property Law PDF

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Intellectual Property RightsIntroductionHow do we theoretically explain the existence of IPR? Situation: Imagine a successful human being in different eras – Prehistoric era - someone who has honed skill of hunting better than others and can kill bigger animals; Agricultural age - large swathes of l...

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Intellectual Property Rights Introduction How do we theoretically explain the existence of IPR? - Situation: Imagine a successful human being in different eras – Prehistoric era - someone who has honed skill of hunting better than others and can kill bigger animals; Agricultural age - large swathes of land and diff animals; Industrial age - factories and control over humans; Current times - Zuckerberg etc. - someone who generates ideas [So, must appreciate the generation of these intangible ideas and create laws to protect them] - IPRs: give exclusivity on those who possess ideas, it protects ideas and their expressions o Ideas: Intangible, hard to show who possesses it o Copyright law - Protects creative expressions of ideas o Patents law - Protects ideas when they are converted into objects of utility o Trademark law - Protects how you want to brand yourself o Others: GIs, Trade secrets, etc. - Should people have complete control over what they created? o Austin's definition of ownership – Ownership is a right indefinite in point of user, unrestricted in its disposition, and unlimited in point of duration over a determinate thing. So, an owner is one who has absolute dominion over a determinate thing, which he can use in whichever way he likes and for an unlimited duration. o Ideas not exactly privately owned, they belong to the community - Intuitively appealing idea that each one's idea is their own control; versus the other side that everyone is so heavily dependent on ideas of others Should IPRs exist? - Parallels between IPR and physical property regime: o Physical private property rights also problematic because others may want to use your house for warmth, so can't deny IPR for the fact that others might want to use it o Previous debates on physical property also applicable to IPR - Even if the debate on physical property has become less robust now, no reason to deny the same intellectual debate to IP. ▪ Tragedy of commons thesis - if you don't have physical property and keep it in common, then there will be overutilization. The optimal use will happen when there is private property ▪ Tragedy of anti-commons - Equally potent danger is underutilisation - giving large amounts to a single individual who may not use it effectively -

Specific to IP: [Reasons for non-propertisation] o Implications of the impact of propertising ideas on others’ liberty ▪ Palmer’s paper on Foundations of IP - liberty and IP seem to be at odds, for while property in tangible objects limits actions only wrt certain goods, property in ideal objects restricts an entire range of actions, unlimited by place or time, involving legitimately owned property, by all but those privileged enough to receive monopoly grants from the state. ▪ Eg. Tangible property rights in an abacus prevents a person from owning that abacus but IPRs prevent all persons from making an abacus through their own labour and good. Therefore, since it is going to check on my liberty in this manner, it is necessary to investigate the foundations of IPR. o Stimulating impact of Ideas ▪ Ideas have a stimulating impact, gets others to respond to it. This is not a problem with physical property. This may arise in the form of criticism, suggestions, responses etc.

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When the very need to respond is coming from the idea, how fair is it to deny me the opportunity of responding to your ideas? ▪ There will be a necessity to borrow and quote ideas and paras etc. to effectively respond to the idea. If this is denied, you are being denied the participation in cultural discourse. This negative impact is why there should be a need to investigate the foundations of IPR and to see what form it is to exist in. Intangible subject matter is non-rivalrous in nature ▪ Does not create rivalry between two persons. Eg. Only one person can have the same phone, so rivalrous. But intangible subject matter is not rivalrous, because people can reach the same ideas independently ▪ This suggests that intangible subject matter provides one major reason less to construct a property regime. Does not justify non-propertisation of ideas but takes away one major reason which generally push people to propertisation. ▪ Jefferson on propertisation: Ideas should freely spread for the moral and mutual improvement of man and multiple people can enjoy it at the same time without hurting anyone else. Inventions cannot then be subject to propertisation.

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Questions that arise from these scenarios: o Why should one individual have control over intangible ideas when others have legitimate needs to use them? Who is to have control, how much control and how long should it exist? o How much freedom should others have to make reasonable and legitimate use? What would constitute reasonable and legitimate use? Should software protection be provided for the same amount of time as others, considering it becomes redundant quickly? o Therefore, must see theoretical underpinnings.

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Globalisation of IPR o Current regime - dictated by its linkage with International trade. IPR today is about corporatized endeavour of selling goods in the market. o The TRIPS Agreement covers everything and obligates minimum protection standards and time periods etc. Countries have to be committed to TRIPS fully, it enforces compliance, this is different from previous conventions such as the Berne Convention. India's regime would be dictated by commitments made to the WTO through the TRIPS. So why should we waste time understanding the theoretical underpinnings? o David Limmer: Copyright law has entered world of Intl trade and so the regime has ended. He meant that copyright law would end as its real orientation would change. IPR pre-TRIPS About author; post-TRIPS about entrepreneur. In that sense, it met its death, but there still exist statutes about copyright law specifically

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India: o Product patent v. process patent - India had taken a conscious decision post-independence to say products couldn't be patented wrt medicines, only processes. Reason: wrt India’s specific economic conditions - to reduce the system of abuse of patent monopolies and give access to the masses. Theoretical underpinning: Utilitarian approach, maximise goods for the maximum number of people. [Link to Sell – India no longer has the choice to decide] o As a result of this position - India emerged as a global powerhouse of generic medicines called pharmacy of the world. Changed in 2005, when India changed its patent laws to come in compliance with the TRIPS agreement - so pharmaceutical industry couldn't be treated in a manner different from any other country. But even so, theoretical discussions must still be had because TRIPS is only a minimum standard, should still see whether to go above etc. Plus, there are still gaps that need to be filled or ambiguities such as who is an author or who is an inventor, what is innovative etc - Ilaw usually doesn’t answer this

Module 1 Reading 1 – William Fisher Theories of Intellectual Property - 4 1. Utilitarian approach - States that property rights should be shaped by “greatest good of the greatest number”. Entitlements should (a) induce people to behave in ways that increase socially valuable goods and services; and (b) distributes those goods and services in the fashion that maximises the net pleasures people reap from them. So, maximisation of net social welfare - We should have IP if it leads to maximum goods for the maximum people and should be structured in a way that achieves this goal - IP: Inventors and authors should be assigned entitlements sufficient to induce them to develop and make available to the public inventions and works of art that they otherwise would not produce. The incentive must be limited but enough to get the creator to still make the product Examples of Utilitarian doctrine shaping IPRs - Landes and Posner's work on copyright law o The distinctive characteristics of most IP is that they are easily replicated and the enjoyment of the product by one person does not limit its usage by another. Those characteristics are a danger in combination - creators of such products will be unable to recoup their "costs of expression" as they will be undercut by copyists who bear only low costs of production and thus can offer consumers identical products at very low prices. Awareness of this danger deters creators from making socially valuable intellectual products in the first instance o How to avoid this economically inefficient outcome? ▪ Allocating to the creators (for limited times) the exclusive right to make copies of their creations – enabling them to charge consumers monopoly prices. So, creators of work that consumers find valuable will be able to charge higher amounts to stay competitive ▪ All of the various alternative ways in which creators might be empowered to recover their costs, Landes and Posner contend, are more wasteful of social resources. This is a limited incentive good enough to get people to create. - Landes and Posner's work on trademark law o Primary economic benefits of trademarks are reduction of consumer’s search costs by allowing them to rely on prior experiences with a brand, while also incentivising businesses to produce consistently high quality goods and services [as competitors can no longer use similar marks to free ride on consumer good that results from consistent quality. o But trademarks can also be particularly harmful when you take control over certain attractive or informative words that may have an effect on consumers. Eg. delicious. Then how can competitors describe their chocolate. o So, trademarks to be given when they are socially beneficial and not deleterious – maximisation of net social welfare. - Parody v. Satire example. o In the US, parodies are highly protected under fair use. But satire is not well protected. Distinction: from an economic utilitarian perspective, when it comes to satire, borrowing someone's work for the purpose of commenting on something else, the market will ensure that there is negotiation as to prices and everyone will benefit. In a parody, there is a ridiculing of work, so the original author will not permit you to do so. The law then has to step in to create a space for the user, thereby protecting liberty to parody as well.

2. Labour-Desert Theory [Natural rights approach] - Doesn't look at the ends to be achieved through IP - Rewards the fact that it has happened – a person who labours upon resources that are either unowned or "held in common" has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right. o Especially applicable to IP, where raw materials (facts and concepts) are held in common and where (intellectual) labour contributes importantly to the value of the finished product. - Here, it is not about incentivising. The protection is for a long time because it is your creation. But in utilitarianism - they are concerned with limiting the amount of time protection that is afforded because they want to maximise the good for the maximum number of people o Utilitarians give more scope of fair use also, but non-Utilitarians would not. Example: Robert Nozick - Locke - theory of property: Can have private acquisition if you laboured upon it o Two limitations on how much you can acquire: ▪ Must leave enough for the others ▪ Must acquire only as much as I can consume before it spoils [No wastage] - Nozick: Correct interpretation of the limitation on acquisition is that private acquisition is legitimate if the other person does not suffer any net harm. IP meets this requirement as it does not deprive anyone else from acquiring property through labour for themselves. - The invention would not have even existed without the inventor, and the inventor would not have created this invention without the lure of a patent. So, consumers are helped rather than harmed though IP. - But Nozick contends fidelity to Locke's theory entails two limitations on inventor's entitlement: o People who subsequently invented the same device independently (i.e. without the knowledge of the first inventor’s discovery) must be permitted to make and sell it. Otherwise, the assignment of the patent would leave the second-comer worse-off. o For the same reason - Patents should not last longer on average than it would have taken someone else to invent the same device had the knowledge of the invention not disabled them from inventing it independently - So, patent law must be overhauled to allow for independent creation, so that patent law would follow this interpretation of Locke's theory. 3. Personality based jurisprudence - Derived from the writings of Kant and Hegel - States that private property rights are crucial to the satisfaction of some fundamental human needs or interests. Thus, must select the set of entitlements that most conduces to human flourishing. So, IP may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their will, or on the ground that they create social and economic conditions conductive to creative intellectual activity, which is important to human flourishing. - It is based on issues of personality associated with the ability or lack of ability of an individual to control things around them. Exercise of will on subject matter around you is an essential part of how your personality is maintained. So should have control over your ideas in a tangible form - Control over IP is linked with continuance with your personality traits - Amount of labour put in should not be seen if the work is sufficiently personalised Example: Hughes - Derives from Hegel. Hegel states that man is an abstract entity with free will. Once that free will is exercised, that provides a definition to your identity. That extends to the external manifestations of your ideas

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Based on this, Hughes says that: o Should be willing to accord more legal protection to the fruits of highly expressive intellectual activities, such as books and poems etc., more than lower expressive activities such as genetic research. [Whether copyright protection of computer software is a question in France but not in India etc.] o Because a person’s persona (his public image, including his physical features, mannerisms etc.) is an important receptacle for personality, even though it ordinarily does not result from labour. The kinds of rights offered would also be different - protecting the aspect of your personality and not geared towards personalisation o Authors and inventors should be permitted to alienate copies of their works, thereby enabling them to earn respect, honour, admiration, and money from the public. But they should not be permitted to surrender certain entitlements to their creations (most importantly, the right to prevent others from mutilating or misattributing their works.) ▪ Authors and inventors should be allowed to earn from their work but should not be permitted to alienate certain rights, i.e. Moral rights ▪ Economic rights [right to publish etc.] are alienable - but moral rights [right to claim authorship and integrity of work] are inalienable ▪ You don't have only economic interest in the work, but also emotional, sentimental etc. So moral rights should be protected. Eg. Adaptations - variations of the works (2D cartoon is converted into 3D stuffed toy etc.) - In US, right to create derivate works is a strong right given. How to look at adaptations in this approach? Criticism of the US: Adaptations and changing the nature of a work can change the personalisation aspect as well, so it is still problematic

4. Social Planning Theory - States that property rights and IP should be shaped to help foster the achievement of a just and attractive culture. - Similar to utilitarianism in the theological sense - wants to achieve certain ends of social welfare. Dissimilar to utilitarianism - Different end, more than social welfare. It is willing to deploy substantive visions of the good, not reducible to the greatest good of the greatest number. Example: Neil Netanel - In an ideal society, all persons would enjoy some degree of financial independence and have considerable responsibility in shaping their local social and economic environments. A robust, participatory, and plural civil society of this sort is vital to the perpetuation of democratic political institutions. To achieve this, must be nourished by the government. - Copyright can help foster this in two ways: o Production function - incentivises creative discourse, thus bolstering discursive foundations for democratic culture and civic association. o Structural - supports structural and creative functioning - less dependent on state patronage for support - This suggests that copyright term should be shortened, thereby increasing the size of public domain available for creative manipulation. Authority to control the preparation of derivative works should also be reduced for the same reason. Source of theorisation -

Theories are borrowed from how raw materials of IP talk about IP - statutes, case decisions etc. Eg. Utilitarian approach - References to the role of IPRs in stimulating the production of socially valuable works that will benefit the society at large across America (constitution Art. 8 etc.). US

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Supreme Court says that the primary objective of IPRs is to induce the production and dissemination of works of the intellect. Eg. Labour-Based approach - US Supreme Court also uses vocabulary that indicates the importance of rewarding authors and inventors for their labour. Eg. Personality theory - France and Germany – strong protection of moral rights (authors’ and artists’ rights to control the public disclosure of their works, to withdraw their works from public circulation, to receive appropriate credit for their creations, and to protect their works against mutilation or destruction). This has been justified on the ground that a work of art embodies and helps to realise its creator’s personality or will. Eg. Social planning theory – seen in strong protections afforded to criticisms, education, commentary etc. Caution: In many of these pieces of raw material, theorisation is not perfectly compartmentalised. In one para, there can be both utilitarian and other logic for why a particular claim is protected in a particular manner. o Example - Harper and Roe (in the paper) ▪ Fair return of labour - deserts based ▪ Contribution to the advancement of knowledge - utilitarian Limitations of the theories

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Theoreticians have often believed that there is a comprehensive answer to the question of IP available in the theory they have taken up. Fisher says that each theory has serious limitations in the way they are able to determine answers to specific critical questions.

1. Utilitarian approach - First challenge: to give us a more workable model of what is greatest good of greatest number, which they have not been able to do. - If Kaldor-Hicks model of wealth maximisation, it might be applied to IP in 3 different ways: a. Incentive theory: ▪ The optimal doctrine is one that prefers establishing or increasing intellectual-property protection when doing so would help consumers by stimulating creativity more than it would hurt them by constricting their access to intellectual products or raising taxes ▪ IP acts as an incentive for inventors to create- Ideally patent strength or duration is to be increased to where marginal benefit equals marginal cost. ▪ Problems: • There is a lack of information necessary to apply this. To what extent is production of intellectual products dependent on the maintenance of copyright or patent protection? [Piracy paradox - more chance of piracy means less innovation, so then must provide protection] • In practice, monopoly theory incentives can be contrasted with the practice of using patent protection as a sword or shield in litigation. Plus, not all industries depend on this kind of incentive. Leave time, subsidies etc. also work. b. Optimising patterns of productivity: ▪ IP acts as a signalling tool that encourage...