Introduction to IPR Law

LLM PAPER-I - Introduction to IPR IPR concept & Theories

by
SANJEEV KUMAR CHASWAL, IPR Attorney and Advocate

IPR concept & Theories

The twenty-first century will be the century of knowledge, indeed the century of the intellect. A nations ability to translate knowledge into wealth and social good through innovations will determine its future. Thus innovations hold the key to the creation as well as processing of knowledge. Consequently issues of generation, evaluation, protection and exploitation of intellectual property would become critically important all over the world. The term "intellectual property" refers to a loose cluster of legal doctrines that regulate the uses of different sorts of information. The law of copyright protects "original forms of expression" -- novels, movies, musical compositions, computer software, etc. Patent law protects inventions -- machines, processes, (also) computer software, etc. Trademark law protects words and symbols that identify for consumers specific goods and services -- brands of cereal, clothing, automobiles, etc. Trade-secret law protects information that companies have tried but failed to conceal from their competitors -- soft-drink formulas, confidential marketing strategies, etc. The "right of publicity" protects celebrities' interests in their images and identities.

Some theorists begin with the postulate that a person who labors upon resources that are either un-owned 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. These ideas, originating in the writings of John Locke, are widely thought to be especially applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem in some sense to be "held in common" and where (intellectual) labor seems to contribute so importantly to the value of the finished product. In recent years, a growing number of legal theorists have attempted either to make sense of this complex field or to propose ways in which it should be reformed. Some draw inspiration from the work of the Kant and Hegel, from which they derive the propositions (i) that private property rights are crucial to the satisfaction of some

fundamental human needs or interests and (ii) that policymakers should thus strive to select the set of entitlements that most conduces to human flourishing.
From these standpoints, intellectual property rights may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their "wills" or on the ground that they create social and economic conditions conducive to

A third group takes the view that property rights in general -- and intellectualproperty rights in particular -- can and should be shaped so as to help foster the achievement of a just and attractive culture. Scholars who work this vein typically draw inspiration from an eclectic cluster of political and legal theorists, including Jefferson, the early Marx, the Legal Realists, and the various proponents (ancient and modern) of classical republicanism. The premise of the last -- and most popular -- of the approaches is the familiar utilitarian guideline that a lawmaker's beacon when shaping property rights should be the greatest good of the greatest number. In other words, he should strive to select a set of entitlements that (a) induces people to behave in ways that increase socially valuable goods and services and (b) distributes those goods and services in the fashion that maximizes the net pleasures people reap from them, Intellectual property can be characterised as the property in ideas or their expression. It is a creation of the mind, for example, a technological innovation, a poem, or a design. It protects the rights of individuals and businesses who have transformed their ideas into property by granting rights to the owners of those properties. Intellectual property can be classified into the following four categories: patents for inventions, copyrights for literary works, trademarks, and trade secrets. We shall briefly define the various kinds of IPRs:Patents and Design: Copyrights, Trademarks: Trade secrets

A patent is a legal monopoly granted for a limited time to the owner of an invention. In many countries, an inventor of a new product or process can apply for a patent giving the holder the exclusive right for a number of years to produce the good or use the process. This right can be used either through their own business or by charging a license fee. The earliest known patent on an invention was awarded in Florence in 1421 to Filippo Brunelleschi for a barge with hoisting gear capable of transporting marble. In Britain the first such patent was awarded in 1449 to a Flemish glassmaker for a method of making stained glass windows. During the sixteenth century the English monarchs discovered that the sale of monopoly privilege could be very lucrative and granted patents on an indefinite basis to all manners of trades and manufactures, regardless of their novelty. Even the trade in commodities such as leather, salt, iron, and paper was patented. The consequent high prices of these goods led to accusations that such perpetual monopolies were unjust. Responding to this criticism, numerous patents were revoked. For example, the monopoly on the production of playing cards granted to Edwin Darcy was rescinded.

Copyrights & Trademarks

Copyrights: Copyright is the exclusive right granted by statute to the author of the works to reproduce dramatic, artistic, literary or musical work or to authorise its reproduction by others. The copyright persists for a definite period after the authors death after which it can be sold or inherited. As such it protects the expression of the idea rather than the idea itself. It also extends to films or television. Copyrights comply with international norms like Berne Convention, Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement and World Intellectual Property Organisation (WIPO) Copyright Treaty (WCT). Trademarks: Trademark means any symbol, logo, or name used to enable the public to identify the supplier of goods. Trademarks can be registered, which gives the holder the exclusive right to use them. Manufacturers, distributors, or importers may register them. They can be sold and are an important form of commercial property. They are poorly enforced in some Least Developed Countries (LDCs) which is a serious source of international friction

Tom Palmer critically analyses three distinct arguments in favour

of intellectual property rights. That are as follows:

Moral Desert Theory

Personality Theory Utilitarian Theories An Alternative Model: The Libertarian Utopia

Moral Desert Theory: According to Locke, every man has a property in his own person, i.e. the fruits of a mans labour belongs to him. In this scheme intellectual property would seem to follow naturally, since the individual must surely be permitted the fruits of his mental and physical labour. But Leggett points out that if you assert an exclusive right to a particular idea you cannot be sure the very same idea did not at the same moment enter some other mind. Thus these rights can only be justified if they are implemented in such away that rights of an individual are protected without infringing on another. Personality Theory: According to Kant and Hegel, if ones artistic expressions are synonymous with ones personality, then they are deserving of protection just as much as the physical person is deserving of protection since in a sense they are a part of that physical person. However Palmer counters this by saying that if a work of art were part of an individuals personality then they would cease to exist after the person

Utilitarian Theories: Advocated by economists such as Bentham and Mill and assume that the objective of any policy should be the attainment of the greatest good for the greatest number. However utilitarian arguments can be cut for or against the claims of intellectual property rights. The utility gains from increased incentives for innovation must be weighed against the losses incurred from monopolisation and their diminished diffusion. Thus the problem arises as the benefits gained cannot be measured against the losses suffered. Another argument against intellectual property rights and in particular patents is that it creates artificial scarcity through a monopoly on various products (which implies a restricted output and higher prices). For instance, from its establishment in 1875, the US company AT & T collected patents in order to ensure its monopoly on telephones. It slowed down the introduction of radio for about 20 years. However, it can be argued that patents and copyrights are not monopolies because monopoly is the use of force to constrain others in the use of what would in the absence of such law be open to all, while inventions and the like could not be said to exist before their creation. The proponents of patents and copyrights reasoned that an exclusive right over an innovation could not be a monopoly, because prior to its invention it was not a liberty that they had before. Robert Nozick argues on this basis that patents and

There are no easy and precise answers to this issue. Thus for the purpose of examining the validity of these rights, let us explore a hypothetical situation where intellectual property rights do not exist at all, and analyse whether such a system would sustain itself or collapse An Alternative Model: The Libertarian Utopia An intriguing analysis in the field intellectual property rights is the conception of a world where no regulations or laws to protect intellectual property exist. All creations of the mind such as inventions, literary works, innovations are freely accessible and can be utilised by anyone. any libertarian thinkers such as Kinsella believe that any institution or argument such as the question of intellectual property rights which attempts to legitimise or calls for the continued existence of the state is fallacious. If something can only be done or protected by the state, then it stands to (libertarian) reason that, that something should not be done or protected at all. They believe that it is indisputable that anything that one produces, with their own hands and/or with their own capital in collaboration with their creative mind, is their exclusive property. But once such things are ready to be sold, they should be subject to the competition of the free market, unhampered by claims of intellectual property rights; to allow the inventor of a device to smash competition in the marketplace is to allow him to fester in mediocrity, while someone smarter could have improved on the invention, benefiting everyone.

Benjamin Tucker postulated that property arose as a means of solving conflicts within society, which were caused by scarcity. In the universe of human reality, almost all goods were scarce, and that fact led to an inevitable competition among human beings for their use. For example, since two individuals could not use the same chair in the same manner at the same time, it was necessary to determine who should use the chair. The concept of property resolved this problem. Intellectual property cannot exist because an idea is not property; it is not scarce. The very institution of property came about for the purpose of assigning scarce goods to individuals. An idea in my head is my property, because it is part of my mind. But the instant a person utters it, the next person to hear it also owns the idea, as it is now part of their mind. We may both "own" the idea without diminishing it in either of our brains. The libertarian contention is that the market will find a happy medium between manufacturers protecting their products from copying and the consumers doing the copying. For example, while technology provides ways to trump IP laws, it also creates more ways to protect the creations of writers and artists. To protect their software, companies should hide their source codes; much like Microsoft does to keep other companies from producing Windows. To keep consumers from copying software to give away to friends or to sell, they should use technology that makes it impossible to "pirate" the software or a file. They should use technology that does not allow the owner of a CD to make an MP3 out of a track, or possibly, allow the download of a song in a format that allows only

All the worlds products are modeled after something that came before. From clothing to buildings to, yes, writing, there is always a predecessor. To deny someone the right to improve upon anothers creation, manifested in the formers personal property, is to contradictorily support intellectual property rights over real and personal property rights, Although the above system in theory seems ideal, to enforce it in reality would be a formidable task. We must recognise that laws (in this context property law) are the result of a moral consensus among people. Intellectual property laws did not evolve in nature; people living in a civil society gradually converged to them. So if the majority of the people did not approve of these laws they would not exist. Secondly, as we have seen in the past, the market has devised ways to prohibit piracy and imitations. But with the rapidly exploding technology, individuals would work around them and devise ways to duplicate which ultimately would lead to chaos, and the society would ultimately resort to a system of enforcing intellectual property rights (legally or by mutual consent). Finally, it is incorrect to argue that the scarcity of tangible property is the sole explanation for property rights and as intangible property is in abundance, there is no basis for protecting an intellectual property. The urge to own property is inherent in man as it provides security and a sense of identity, which is undeniable.

Moreover although ideas as such may not be finite, revolutionary ideas that can be translated to profitable concrete works are, and thus need to be guarded.

After evaluating the above arguments the conclusion we have come to is that a system of intellectual property rights are justified as long as they do not violate anothers parallel right to intellectual property. Although realistically, the development of such a system is a daunting task due to its various intricacies. It is important to realise that there are no clear-cut, easy answers for this debate. This debate is thorny because two important principles clash: legal protection for intangible works conflicts with the free expression and exchange of ideas. IP disputes have always involved trade-off between these two fundamental principles. Thus the best solution is to minimise the opportunity cost of the trade off. A system whereby an individual is secure in the knowledge that his intellectual property shall be protected without infringing on someone elses right to his intellectual property. One of the systems that can achieve this objective to a large extent is the use of copyrights instead of patents, which was originally suggested by Murray N Rothbard

The plaintiff must prove that the defendant stole the former's creation by reproducing it and selling it himself in violation of his or someone else's contract with the original seller. But if the defendant independently arrives at the same creation, the plaintiff has no copyright privilege that could prevent the defendant from using and selling his products. But patent then has nothing to do with implicit theft. It confers an exclusive privilege on its first inventor, and if anyone else should, quite independently, invent the same or similar product, the latter would be debarred by force from using it in production. This does not seem just as two individuals might independently come up with the same invention that requires huge investments and only one can obtain a patent due to several reasons such as timely appeal, political lobbying or any other coincidental factor. This is fair neither on the consumer nor on the producer. Firstly by restricting the amount of output and hence higher prices and secondly if one producer obtains the patent then the other cannot produce. Thus patents seem highly unreasonable in this regard. The Rothbardian Solution Patents and copyrights are both property rights in innovations. But there is a crucial difference in their legal enforcement. If an author or a composer believes his copyright is infringed and he takes legal action, he must prove that the defendant had "access" to the infringed work. If the defendant produces something identical to the plaintiff's work by mere chance, there is no infringement. Copyrights in other words, have their basis in implicit theft.

Thus as a solution the patent protection now obtained by the inventor could be achieved in the free market by a type of copyright protection. In the free market, the inventor could mark the copyright status on his product and anyone who buys the product does it on the condition that he would not reproduce and sell such a machine for profit. The patent is incompatible with the free market to the extent that it goes beyond the copyright. The man, who has not bought the machine and has independently arrived at the same invention, will in a free market be perfectly able to use and sell his invention. Thus this would extend a copyright-type of protection to the subject matter of patents as well. Thus, argues Rothbard: suppose that Brown builds a better mousetrap and sells it widely, but stamps each mousetrap copyright Mr Brown. What he is then doing is selling not the entire property right in each mousetrap, but the right to do anything with the mousetrap except to sell it or an identical copy to someone else. The right to sell the Brown mousetrap is retained in perpetuity by Brown. The Rothbardian system resolves the debate regarding intellectual property rights to a very large extent as it satisfies the Moral Desert theory while resolving the objections to it. However this system has inherent flaws, which are not conceptual but rather pertain to its enforcement. Some of these flaws are as follows: It does not strictly define what qualifies as "copying." For instance, a person can obtain the particular piece of work, alter very trivial aspects of it, and then sell in the market. It is very tough to differentiate between an improvement and a mere alteration of the original work.

Moreover, Rothbard advocates the copyright to exist in perpetuity that is unfair as although it is generally presumed that ideas and intellectual property are not scarce, but ideas that materialise into profitable products or processes are few. Thus perpetual copyrights drastically reduce the scope of innovation and enhancement of existing ideas. - It is very difficult to prove that a particular idea was stolen in case of violation of a Copyright. Fortunately, appropriate and precise laws that are enforced efficiently can overcome all the above stated problems. The large majority of the writers who have attempted economic analyses of intellectual property have relied, explicitly or implicitly, on the "Kaldor-Hicks" criterion (also known as the "wealth-maximization" criterion or "potential pareto superiority") which counsels lawmakers to select a system of rules that maximizes aggregate welfare measured by consumers' ability and willingness to pay for goods and services. They disagree sharply, however, concerning the implications of that criterion in this field. Three quite different arguments -- commonly thought to be incompatible -- dominate the literature.

Economic Analysis of Intellectual Property

1. Incentive Theory

2. Optimizing Patterns of Productivity. 3. Reducing Rent-Dissipation

1. Incentive Theory. The first and most common of the three tacks

argues that the optimal doctrine is the one that maximizes the difference between (a) the present discounted value to consumers of the intellectual products whose creation is induced by holding out to authors and inventors the carrot of monopoly power and (b) the aggregate losses generated by such a system of incentives (the consumer surplus sacrificed when authors and inventors price their creations above the marginal costs of producing them, the "administrative costs" of interpreting and enforcing intellectual-property rights, etc.) In rougher terms, incentive theory urges a lawmaker to establish or increase 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 their taxes. Here are two illustrations of this general approach, both from the pens of William Landes and Richard Posner

That the distinctive characteristics of most intellectual products are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons. Those characteristics create a danger that the creators of such products will be unable to recoup their "costs of expression" (the time and effort devoted to writing or composing; the costs of negotiating with publishers or record companies, etc.), because they will be undercut by copyists who bear only the low "costs of production" (the costs of printing, binding, and distributing books; the costs of "burning" and packaging compact disks, etc.) and thus can offer consumers identical products at very low prices. Awareness of that danger will deter creators from making socially valuable intellectual products in the first instance. How might we avoid this economically inefficient outcome? By allocating to the creators (for limited times) the exclusive right to make copies of their creations, thereby enabling them to charge consumers monopoly prices. All of the various alternative ways in which creators might be empowered to recover their costs, Landes and Posner contend, are, for one reason or another, more wasteful of social resources. This utilitarian rationale, they argue, should be -- and, for the most part, has been -- used to shape specific doctrines within the field. The primary economic benefits of trademarks, they contend, are (1) the reduction of consumers' "search costs" (because it's easier to pick a box of "Cheerios" off the grocery shelf than to read the list of ingredients on each container, and because consumers can rely upon their prior experiences with various brands of cereal when deciding which box to buy in the future) and (2) the creation of an incentive for businesses to produce consistently high quality goods and services (because they know that their competitors cannot, by imitating their distinctive marks, take a free ride on the consumer good will that results from consistent quality).

Trademarks, Landes and Posner claim, also have an unusual ancillary social benefit: they improve the quality of our language -- by increasing our stock of nouns (and thus economizing on communication costs); by creating new, useful, generic words (e.g., "aspirin" and "brassiere"); and by "creating words or phrases that people value for their intrinsic pleasingness as well as their information value." To be sure, trademarks can sometimes be socially harmful -- for example by enabling the first entrant into a market to discourage competition by appropriating for itself an especially attractive or informative brand name. Awareness of these benefits and harms should (and usually does), Landes and Posner claim, guide legislators and judges when tuning trademark law; marks should be (and usually are) protected when they are socially beneficial and not when they are, on balance, deleterious. The general principle that underlies these various arguments is that maximization of net social welfare should be lawmakers' exclusive objective when shaping intellectual-property law. 2. Optimizing Patterns of Productivity. Many years ago, Harold Demsetz argued that the copyright and patent systems play the important roles of letting potential producers of intellectual products know what consumers want and thus channelling productive efforts in directions most likely to enhance consumer welfare. In the past decade, a growing group of theorists have argued that recognition of this function justifies expanding the copyright and patent systems. In Paul Goldstein's words: The logic of property rights dictates their extension into every corner in which people derive enjoyment and value from literary and artistic works. To stop short of these ends would deprive producers of the signals of consumer preference that trigger and direct their investments.

Won't adoption of this strategy impede public dissemination of intellectual products? Not at all, say the proponents of this approach. Sales and licenses will ensure that goods get into the hands of people who want them (and are able to pay for them). Only in the rare situations in which transaction costs would prevent such voluntary exchanges should intellectual-property owners be denied absolute control over the uses of their works -- either through an outright privilege (like the fair-use doctrine) or through a compulsory licensing system

3. Reducing Rent-Dissipation. The final approach is related to but

differentiable from the second. Its objective is to eliminate or reduce the tendency of intellectual-property rights -- and patent rights in particular -- to foster duplicative or uncoordinated inventive activity. Economic waste of this sort can occur at three stages in the inventive process. First, the pot of gold represented by a patent on a pioneering, commercially valuable invention may lure an inefficiently large number of persons and organizations into the race to be the first to reach the invention in question. Second, the race to develop a lucrative improvement on an existing technology may generate a similar scramble for similar reasons at the "secondary" level. Finally, firms may try to "invent around" technologies patented by their rivals -- i.e., to develop functionally equivalent but non-infringing technologies -- efforts that, although rational from the standpoint of the individual firm, represent a waste of society's resources. In recent years, several economistshave devoted themselves to identifying possible reforms of intellectual property law (or of related doctrines, such as antitrust law) that

Serious difficulties attend efforts to extract from any one of these approaches answers to concrete doctrinal problems. With respect to incentive theory, the primary problem is lack of the information necessary to apply the analytic. To what extent is the production of specific sorts of intellectual products dependent upon maintenance of copyright or patent protection? With respect to some fields, some commentators have answered: very little; other monetary or nonmonetary rewards (profits attributable to lead time, prestige, tenure, the love of art, etc.) would be sufficient to sustain current levels of production even in the absence of intellectual-property protection. Other commentators sharply disagree.

The truth is that we don't have enough information to know who is right -- and are unlikely ever to acquire sufficient information. Even if we were able to surmount this enormous hurdle -- and concluded that society would be better off, on balance, by supplying authors and inventors some sort of special reward -- major sources of indeterminacy would remain. Is an intellectual-property system the best way of providing that reward or would it be better (as Steven Shavell and Tanguy van Ypersele have recently argued) for a government agency to estimate the social value of each innovation and pay the innovators that sum out of tax revenues? If the former, how far should creators' entitlements extend? Should they include the right to prepare "derivative works"? To block "experimental uses" of their technologies? To suppress their

Criticism of IPR

The term itself : 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. Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. Lawrence Lessiq, along with many other copyleft and free software activists, have 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 nonrivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original)

Limitations:

Some critics of intellectual property, such as those in the free culture movement point at Intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses and argue that the public interest is harmed by ever expansive monopolies in the form of Copyright extensions, software patents and business method Patents . The committee on economic, social and cultural Rights recognizes that "conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights. It argues that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. 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 Some libertarian critics of Intellectual property have argued that allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. The Stephan Kinsella uses the following scenario to argue this point: Imagine the time when men lived in caves. One bright guylet's call him Galt-Magnondecides 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 GaltMagnon, 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.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. 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. Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may some day be eternal In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms,(and in the US, certain Living organisms have been patentable for over a century) and colors have been trademarked. Because they are systems of Government granted monopolies copyrights, patents, and trademarks are called Intellectual monopoly privileges, (IMP) a topic on which several academics, including Birgitte Andersen and

Marxist criticism

Capitalism attempts to turn everything into private property, the air we breathe, the water we drink and even ideas. Attempts of capitalists to make money from their intellectual property are like the highway robbery of medieval aristocrats who levied tolls on traders and restricted the growth of commerce and prosperity. Today private property and the profit motive are the biggest threat to our enjoyment of new ideas, our progress and even our existence as a species. Capitalism is a greedy system. It seeks profit everywhere and turns everything into private property. In doing so, it inevitably destroys all those things we hold in common - the commons. The world is dominated by capital. Wage labourers do the work and turn the profits for capital because they have no other way of making a living. And that's because in the past we were disinherited from our commons, which were enclosed by the rising capitalist class. So what? Isn't that all in the past? Well, actually no. Consider the Internet. What is it but a vast intellectual commons, a common carrier of ideas? Clean air is a common, as is clean water. The Antarctic, the Brazilian rain forests and wildlife are all commons, and all under threat.

In Capital, Marx explains the process of primitive accumulation, which established the preconditions for capitalist production. On the one hand, rich men gained fortunes in money rather than land or slaves. On the other hand, the common people were reduced to property less proletarians, forced to sell their labour power in order to live. Marx uses Britain as his example of primitive accumulation. Part of this expropriation was the separation of the people from the commons. Medieval and early modern villages had, at their centre, the crop fields. All around were wastes, which supplied wood for fuel and building materials, running water and fishing rights and rough grazing for their animals. The villagers could not make a living without these commons. Yet the coming of capitalism saw the enclosures, the seizure of these lands from the villagers and their conversion into the private property of the rich. Communal property - which is entirely distinct from the state property we have just been considering - was an old Teutonic institution which lived on under the cover of feudalism. We have seen how its forcible usurpation, generally accompanied by the turning of arable into pasture land, begins at the end of the fifteenth century and extends into the sixteenth. But at that time the process was carried on by means of individual acts of violence

The advance made by the eighteenth century shows itself in this, that the law itself now becomes the instrument by which the people's land is stolen The Parliamentary form of the robbery is that of 'Bills for enclosure of Commons', in other words decrees by which landowners grant themselves the people's land as private property, decrees of expropriation of the people. Capitalism had to fight long and hard against what the historian E.P. Thompson calls the moral economy, a code of ethics and practice radically at odds with capitalist behaviour. (E.P. Thompson - Customs in common, Penguin Books, 1993). This piece of doggerel from the seventeenth century shows the hatred felt by common people against the enclosure movement:

The law hangs the man and flogs the woman, Who steal the goose from off the common, But leaves the greater villain loose, Who steals the common from the goose.
A similar process of expropriation took place in the Scottish highlands in the years after Culloden. Marx explains the situation. The Highland Celts were organized in clans, each of which was the owner of the land on which it was settled. The representative of the clan, its chief or 'great man' was only the titular owner of this property, just as the Queen of England is the titular owner of all the national soil

Economics continues to justify the theft of the commons. The classic piece is Garrett Hardin's article, 'The tragedy of the commons' (Science, 162, 1968, pp. 1243-1248). Hardin was a Professor of Human Ecology at the University of California. He is not one for empirical enquiry on this subject. He prefers to appeal to the reader to perform a so-called 'thought experiment.' Hardin could have made a living as economic adviser to the Duchess of Sutherland! Like his predecessors, Hardin pleads efficiency gains as the justification for enclosure. In reality they were a form of class struggle, intended to make the poor incapable of scraping any kind of living independently of the rich, and utterly dependent on them to earn a crust. Hardin's theorem is a fable from beginning to end. The commons were not actually open to all and sundry to graze their animals upon. This right was reserved to people known as the commoners, usually the local villagers. Even the commoners' grazing rights were strictly regulated by officials, known in Britain as beadles, in order to prevent overgrazing. Historians agree that there is no evidence that common land use was itself unsustainable. Despite the lack of evidence, Hardin's fable has become the accepted wisdom among the fraternity of economists. Hardin is a disciple of the economist Thomas Malthus. Malthus believed that growing population

The only thing the working class could therefore do to improve their lot was to tie a knot in it! (Marx wrote extensively against Malthus, but we will not deal with the arguments here.) The extreme examples of external effects on economic activity are public goods. This refers to a narrow range of products with two characteristics. They are non-rival in consumption and non-excludable. Public goods are to be compared with private goods. These are rival in consumption. If I eat a KitKat, you cannot eat the same KitKat. I can also deprive you of access to my KitKat by buying it and keeping it in my pocket - that is, I can exclude you from it. There is non-rivalry in consumption because there is zero cost of reproduction for another user. The logic of this in neoclassical welfare economics is that the good should be provided free. After all, a charge is only levied in neoclassical theory because supplying an extra unit involves additional real cost. The problem of free provision is obviously that there is no incentive for the capitalist to supply the good at all, so capitalism systematically undersupplies public goods and markets fail.

The second characteristic of a public good is that the provider should be unable to prevent users from free riding on their product and capturing the benefits without paying. The classic example is the light from a street light or lighthouse. So how can a capitalist sell light for profit? An example of this intellectual property is copyright. Charles Dickens' works were very popular in the USA in the nineteenth century, but he didn't receive a penny from the pirated editions published there. But the principle was that Dickens wrote the books; he deserved the reward. That principle has been turned upside down by the new privatisers who are using intellectual property laws to steal our intellectual commons. A classic example is the articles academics write for learned journals. You might think they get paid for their efforts. Not a bit of it. They assign the copyright to the publisher. They can't even distribute the article they've written to their own students without permission. Obscenely, the ownership of things has been extended to life forms. The US firm RiceTec has laid claim to own basmati rice. Everyone knows that this rice has been grown for centuries in the shadow of the Himalayas in India and Pakistan and was developed long ago by unknown peasants. These peasants would have regarded this superior strain of rice as a gift to future generations.

IPR & Third World Concern & Criticism

Twenty first century will be the century of knowledge, indeed the century of mind. Innovation is the key for the production as well as processing of knowledge. A nation's ability to convert knowledge into wealth and social good through the process of innovation will determine its future. In this context, issues of generation, valuation, protection and exploitation of intellectual property (IP) are going to become critically important all around the world. Exponential growth of scientific knowledge, increasing demands for new forms of intellectual property protection as well as access to IP related information, increasing dominance of the new knowledge economy over the old brick & mortar economy, complexities linked to IP in traditional knowledge, community knowledge and animate objects, will pose a challenge in setting the new 21s t century IP agenda. Intellectual property will no longer be seen as a distinct or self-contained domain, but rather as an important and effective policy instrument that would be relevant to a wide range of socioeconomic, technological and political concerns. The development of skills and competence to manage IPR and leverage its influence will need increasing focus; in particular, in the third world

An ideal regime of intellectual property rights strikes a balance between private incentives for innovators and the public interest of maximizing access to the fruits of innovation. This balance is reflected in article 27 of the 1948 Universal Declaration of Human Rights, which recognizes both that Everyone has the right to the protection of the moral and material interest resulting from any scientific, literacy or artistic production of which he is the author and that Everyone has the right ...... to share in scientific advancement and its benefits. The burning question seems to be balancing the interest of the inventor and that of the society in an optimum way. Intellectual property rights are being harmonised worldwide. As per the obligation under the Trade Related Intellectual Property Systems (TRIPS) agreement, developing countries are now implementing national systems of intellectual property rights following an agreed set of minimum standards, such as twenty years of patent protection; the least developed countries have an extra 11 years to do so. One of the third world concerns is that while a fully harmonised system of IPR is being advocated, todays advanced economies had refused to grant patents throughout the 19th and early 20th centuries. They formalized the enforced intellectual property rights gradually as they shifted from being net users of intellectual property to bring net producers. Indeed, France, Germany and Switzerland, who are leading developed countries today completed, what is now standard protection, only in the 1960s and 1970s.

The battle today is between those that are not equal, economically and institutionally. TRIPS, like other World Trade Organization agreements, is an agreement on a legal framework. Its implications will be decided by resolving disputes. That makes case law and the power of the parties involved of great importance. The third world has a clear disadvantage here. In the developing world, the impact of TRIPS will vary according to each countrys economic and technological development. Middle-income countries like Brazil and Malaysia are likely to benefit from the spur to local innovation. Countries like India and China, which are endowed with a large intellectual infrastructure, can gain in the long term by stronger IPR protection. However, least developed countries, where formal innovation is minimal, are likely to face higher costs without the offsetting benefits. There are concrete examples to show that technology transfers to the third world have not taken place when they were needed most. The 1990 Montreal Protocol on Substances that Deplete the Ozone Layer ran into conflicts over commitments to ensure fair and favourable access for developing countries to chlorofluorocarbon (CFC) substitutes protected by intellectual property rights. The 1992 Convention on Biological Diversity aims to ensure fair and equitable use of genetic resources partly through technology cooperation, but its technological provisions have received little attention. The 1994 TRIPS agreement calls for technology transfer to the least developed countries, yet that provision has scarcely been translated into action

Traditional Knowledge Protection and Promotion: One of the concerns of the developing world is that the process of globalization is threatening the appropriation of elements of the collective knowledge of societies into proprietary knowledge for the commercial profit of a few. An urgent action is needed to protect these knowledge systems through national policies and international understanding linked to IPR, while providing its development &proper use for the benefit of its holders. We need a particular focus on community knowledge and community innovation. To encourage communities, it is necessary to scout, support, spawn and scale up the green grass root innovation. Linking innovation, enterprise and investment is particularly important. New models and new thinking on IP will have to be envisioned to accomplish this. There is a problem on the grant of such patents linked to the indigenous knowledge of the developing world that needs to be addressed jointly by the developing and the developed world. We need to understand that there is a distinction between the patents that are granted based on modern research and patents, which can be categorized as traditional knowledge based patents. A recent study by an Indian expert group examined randomly selected 762 US patents, which were granted under A61K35/78 and other IPC classes, having a direct relationship with medicinal plants in terms of their full text. Out of these patents, 374 patents were found to be based on traditional knowledge not that all of them were wrong. The Governments in the third world as well as members of public are rightly concerned about the grant of patents for non-original inventions in the traditional knowledge systems of the developing world. At International level there is significant level of support for opposing the grant of patents on non-original inventions. For example, more than a dozen organizations from around the world got together to oppose the EPO Neem patent

To mitigate this problem, the Indian Government has taken steps to create a Traditional Knowledge Digital Library (TKDL) on traditional medicinal plants and systems (see box 6), which will also lead to a Traditional Knowledge Resource Classification (TKRC). Linking this to internationally accepted International Patent Classification (IPC) System will mean building the bridge between the knowledge contained in an old Sanskrit Shloka and the computer screen of a patent examiner in Washington! This will eliminate the problem of the grant of wrong patents since the Indian rights to that knowledge will be known to the examiner. In a further action, the examiner has decided to disallow seventeen of the twenty claim. The third world faces several other challenges. Weak physical infrastructure in terms of inadequate IP offices, as explained above, is just one aspect; but inadequate intellectual infrastructure, poor public awareness and lack of government policies that are not in tune with the times are some other hurdles. Many R&D institutions and industrial firms in the developing world have so far focussed on imitative research or reverse engineering, and have depended heavily on borrowed technology and, therefore, not created productive national IP portfolio. Apart from manpower planning for IPR protection setting up of patent training institutes and specialized courses, a judicious management of patent information is needed is the need of the hour. This will require well-structured functioning of information creating centres, information documenters and retrievers, information users and information technology experts

The Global Politics of Intellectual Property Rights

With the establishment of the World Trade Organisation in 1995, the Trade Related Aspects of Intellectual Property Rights (TRIPs) Agreement became part of the single undertaking that all members were required to accede to. However, unlike most of the rest of the WTOs legal instruments, which are concerned with the manner in which states trading activities are controlled and regulated at the border, the TRIPs agreement required WTO members to establish domestic laws that produced specific legal effects as regards the owners of IPRs (patents, copyrights, trademarks, and other intellectual properties). While the TRIPs agreement did not mandate how these laws should be framed they did require them to bring into existence certain rights and obligations. This has led to considerable resources and effort being put into programmes of capacity building and technical assistance, led by, but not exclusively delivered by the World Intellectual Property Organisation (WIPO). These programmes have sought to establish the western mindset and legal processes of intellectual property as best practice around the world, although not always easily or completely. Indeed, laws cannot properly function without widespread social acceptance and the establishment of legitimacy, and this has become a major problem with

Promoting the norms of protecting IPRs has proved to be a difficult task. On one hand in fields as varied as access to the medicines needed to sustain the life of those who have AIDS or HIV, the control and sale of music as well educational publications, the control of the naming of foods and wine, the payment for the tools needed to access the Internet, and the use of genetically modified material (in industry and agriculture), the owners of IPRs have sought to maintain and expand their rights to control, charge for use, and prevent unauthorised access to their properties. On the other hand, as the social costs of these prohibitions (until payment is received) have become increasingly obvious: people with AIDS die because drugs remain so expensive, although in the face of high profile campaigns in this area things have started to change; educators find they are unable to easily and cheaply access the latest information for students; the costs of some software products greatly constrains the advantages of the information age for the poor; and people across the world have started to understand why some goods seem so expensive despite their low material production costs. One response to this programme of protection has been the expansion of (so-called) piracy by those who need to access knowledge and information, but who cannot afford it. The word piracy is used by knowledge owners to try and draw a parallel with violent dispossession but this depiction is unjustified even if it has some political currency; most of those identified as pirates,

whatever their morals seldom kill or use violence to obtain information and knowledge related products or services. We all know that the music industry has found that given the choice between paying for music or downloading it for free, many people prefer the latter, but on the other hand, the live music scene which provides direct payment from audiences to artists is flourishing. Some countries have sought legal ways of sidestepping the limitations on the production of needed drugs by using forms of compulsory licensing as another way of confronting the enforced scarcity that IPRs produce. Across the world faced with protecting the rights of holders of IPRs in the richest and most developed countries (mostly corporations who hold/own these rights) at the cost of the lives of their citizens, or at the very least at the cost of their ability to utilise information and knowledge resources to enrich and improve their lives, states and other organisations have questioned the claims put forward by the supporters of intellectual property. The central claim made is that without the protection of the rights of creators, innovators and inventors, they would cease to provide the innovations required if the human race is to continue to prosper. It is only by constructing a scarcity (of use) for knowledge and information, by making it property, that proper and legitimate economic rewards can be established in a market society. The construction of scarcity certainly changes the character of information and knowledge, which has few if any costs of replication in its original state, but this scarcity is required if we are to ensure individuals and companies receive the support and incentives they need to continue to innovate in a society where the market is the key organisational device. This claim is the foundation for the TRIPs agreement and global governance of IPR

it now seems that the TRIPs agreement rather than finally consolidating the expanded rights linked to IPRs, actually represented the high-water mark from which subsequent political pressure and contest has forced a partial retreat, and the beginning of a return to the sort of balance that has been achieved through most of the long, and at times contentious, history of protecting intellectual property. The TRIPs agreement and subsequent attempts to further expand the rights of IPRs owners have served to demonstrate the social costs of such commodification, and as such have prompted social forces, and community practices to respond in the face of an over-reaching by one set of social interests. The new millenniums politics of IPRs will be a story of compromise and re-organisation, rather than as some feared two decades ago, a period of consolidation and expansion of the interests of a small IPRowning elite. The TRIPs agreement was an anomaly and the relatively normal history of IPRs is returning. As people in the developed world argue over how long the law should give Disney the exclusive right to Mickey Mouse, they need to remember the blessings of intellectual property rights. Yes, intellectual property laws are imperfect and sometimes abused, but they have helped create the most prosperous, dynamic, and enjoyable society the world has ever known. Critics are right when they say that we need to do more than simply demand that developing nations respect the intellectual property rights of the developed world. But we will not help the developing world by discouraging it from doing what has helped the developed world to prosper. If we truly have a heart for the poor, we should help them build institutions that foster intellectual property THE END