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Intellectual Property Law: An Introduction

Intellectual Property Law: An Introduction

There are several optional units on undergraduate law courses for which you are given a brief introduction during the provision of the core modules. For commercial law there is contract, equity and trusts; for medical and employment law there is tort, and for housing law there is the land law unit. However, intellectual property (IP) law is never really touched upon and, in my experience, this can put some students off from choosing the unit as an option in their degree. The following attempts to explain and summarise the key aspects of the IP unit so that students may be able to make an informed decision as to their module choices.

As with many other modules, IP becomes far more manageable upon understanding a few key topics for discussion.

As with many other modules, IP becomes far more manageable upon understanding a few key topics for discussion. For example, with constitutional law you may find yourself able to relate most essays back to the principles of the rule of law, the separation of powers, or a pro and con discussion regarding a written constitution. Once you can break down and simplify the topic in this way, the entire subject becomes far easier to approach. For intellectual property, a safe approach would be to keep in mind the following concerns: who deserves protection, what the scope of that protection should be and the need for international harmonisation.

Who deserves protection?

This can be a surprisingly complex issue. Aside from the difficulty in attributing a single creation to the sole work of one individual, there is a greater debate as to whether it is the inventor or producer who should hold the intellectual rights. The core of this debate has philosophical foundations and the divide is easily seen by comparing the UK and French systems. Traditionally, France protects the inventor of a product. This is in line with the principles set out by the philosopher John Locke who saw creations as extensions of their creators. In the UK, however, a more Utilitarian system is used, allowing producers and investors adequate protection so that they can more readily recuperate money spent on research and development. Therefore, in the UK it is not only far easier for creators to assign their rights via contract, but also for employers to hold the bulk of protection for products created by employees during the course of their work.

This particular concern feeds into the issues below. A balance is necessary to allow the development and production of new innovations, whilst also adequately protecting inventors from commercial abuse and creators from the misuse and replication of their creations. The real issue is whether such concerns should be approached from a financial or ethical point of view.

Scope of protection

Whether you agree with the Utilitarian or the Lockean approach, it is clear that protection allows the person in receipt of IP rights to reap the financial benefits of the creation. These rights can then encourage funding projects for research and development and it can be argued that it incentivises a creative and entrepreneurial spirit. However, this can be a double edged sword. Stronger protection makes for a weaker pool of public information, which in turn can be argued to stifle further development.

Should companies have the surety of recuperating development costs, or should we expect them to increase the freedom of information by producing more open source systems? This is a topical subject given the recent release of development plans for the ‘Hyperloop’ transport system by Tesla’s CEO, Elon Musk. Ultimately, a balance has to be struck by making the more protective rights, such as patents, harder to acquire and shorter in terms of duration. However, the debate is ongoing, and has lead to some complex ethical debates regarding company secrets and public knowledge. Pharmaceutical patents are an excellent example of such competing pressures.

As previously discussed, different jurisdictions can have differing approaches to the provision of IP rights.

Need for harmonisation

As previously discussed, different jurisdictions can have differing approaches to the provision of IP rights. Protection has, therefore, traditionally been granted individually from each jurisdiction. This has lead to an increasing number of repeated cases across the world, where companies vie to gain the upper hand in each individual jurisdiction, with the decision reached in each country being far from consistent. The courts are used as corporate battlefields where companies fight for commercial advantage. Such advantage may only last until an appeal can be launched, but it is often all that is needed to gain that all important initial market share.

The continual cycle of legal action can then be seen to be inefficient and a waste of court time. This belief is one of the driving forces behind the harmonisation of international IP Law. Such a project is underway in the EU regarding a unified patent system, which must not only harmonise the founding principles of IP rights, but the procedural aspects of the law as well.

Summary

Intellectual property rights have become a commercial commodity. The extent of protection afforded by the law involves a delicate balance between stimulating initial innovation and providing for further development and competition. Developers require, and perhaps deserve, a market advantage in return for funding research. However, increasing globalisation has given rise to the need for IP law to be harmonised across a myriad of jurisdictions in which it is inconsistently applied. This process will bring into question the correct foundations, and therefore the purpose, of IP law. Such a debate will require the collision of philosophical ideals and commercial awareness.

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