1. INTRODUCTION
Intellectual Property (abbreviated as IP in the following sections) is the outcome of the human imagination and creativity (Halbert and Ingulli, 2014). IP commonly refers to the technological inventions, literary or artistic works, designs, shapes, symbols, names or images that are used for the purpose of trade or commercialization. However, it is important to note that Intellectual property is intangible in nature and has a non-visible existence (Gill, 2005) but can become valuable in a form of products (Tc Harms, 2012). Thus, the protection given to the IP is called as the Intellectual property rights (abbreviated as IPRs in the following sections) and it was traditionally given in the form of four areas of law; copyright, patent, trademark, and trade secrets which are all together regarded as a property created or recognized by the existing legal systems (Hughes, 1988). However, further due to technological advancement and competition, the scope of IP widened and for this purpose, the TRIPS (Trade-Related Aspects of Intellectual Property Rights) Agreement came into effect on 1 January 1995 recognizing more areas of IP than just the four mentioned above namely, related rights to copyrights, geographical indications, plant varieties, industrial designs and the layout designs of integrated circuits (Jain, Kaur and Jain, 2017 & Wto.org, 2017). The IPRs therefore, grant their owners the exclusive rights to make, sell or license the rights to others to allow them to use their unique work (Zuniga, Marks and Gostin, 2013). Thus, the primary basis of formation of the concept of IPRs is that the state has the authority to grant provisional monopoly rights to an individual, forcing the society to abide by that provisional monopoly and further protect these rights from any form of infringement by others. Therefore, this paper attempts to identify various justifications for granting IPRs protection and critically analyze them in the following sections.
2. JUSTIFICATIONS AND THEIR CRITICISMS
First logical justification for granting IPRs is John Locke’s labor theory of property according to which, when objects are made or invented by an individual as an output of labor and resources, subsequently, the property belongs only to that particular individual as the ‘producer’ of the object (Ostergard, 1999). This theory has two limitations; the amount of property to be taken and the amount of the object to be utilized. IP is if often the propertization of ‘talent’ which is by nature intangible whereas Lockean theory applies to physical property. Human rights theory for IPRs is a contemporary justification and emerges from the Universal Declaration of Human Rights stating ‘everyone has the right to protect their interests resulting of any creativity or innovation of which they are the creators’ (Aplin and Davis, 2009). According to the labor theory, a patent remains the property of its holder for a limited period of time and according to the jurisdiction of the patent office. However, it is a weak justification as most patents created rely on previously available knowledge by other authors and thus arises the question of how much of the patent can the author originally claim in full or part? (Sterckx, 2006). As the benefits would be otherwise enjoyed only by the patent holder whereby, it should be shared with all the contributors according to Lockean theory. In case of copyrights, since it is a work of expression, it could be jointly owned by two or more authors. Although there exists an exception, copyrights created during the course of employment by an employee are owned by the employer depending on the terms of employment (Davis, 2008) which according to the Lockean theory is denying the original producer the right to his property. In case of trade secrets, even if the information is not new and has a non-disclosure clause, it is possible that two originators have the same information nevertheless unknown to each other, due to exclusive ownership it diverts from the main goal of innovation for ‘public good’ due to the lack of freedom of information (Risch, 2010). Also, the protection to IPR could be limited to a geographical area and secondly the interest of its users is disregarded in the process (Malbon and Lawson, 2008). On the contrary, it can also be argued that due to the international synchronization of IPRs systems through TRIPS, the cost of functioning and transacting have been reduced for operating under different regulatory structures beyond local borders (Braga and Fink, 1996).
The second theory of utilitarianism applies economic constructs to propose how IPRs can achieve Bentham’s principle of ‘the greatest good for the greatest number’ thereby indicates that IPRs increase mankind’s collective wealth from disclosure of the invention. Both the Lockean and Utilitarian theories are interrelated while justifying as a basis for IPRs. As, IPRs provide reasons to produce new intellectual objects as per the utilitarian argument and by assigning property rights to the creators for the same, it generates a motivation for people to invest time and money to invent more new products and ideas and therefore, discouraging others to copy the inventor’s work without rewarding them (Ostergard, 1999). As a result, IPRs form a mechanism to fight counterfeiting and piracy in the modern world. However, the utilitarian view is subject to scrutiny as it does not clarify if the long-term advantages compensate the short-term disadvantages with respect to the monopoly granted (Ramcharan, 2013). In case of patents and copyrights they are of a non-exclusive nature despite the monopoly as they can be licensed or sold and encourage research & development within the society. But, irrespective of the encouragement, it is criticized if the owners should be allowed to decide who uses the IP or everyone should be given equal access (Sterckx, 2006). Especially, IP have a stronger utility but weaker autonomy and justice (Ho, C.W. ,2010). Also, supporting his utilitarian view Bentham stated “patents create an unlimited effect and costs zero” but in practice, it is only making the consumers pay a higher price for these products as they are made through patented processes. Moreover, IP are perishable which means ideas and inventions can rapidly become outdated (Hughes, 1988) which means IPRs may continue to exist and support but cease to be fruitful for the society.
Also, even if there is an incentive to innovate and disclose the information, it is difficult to predict in future if the invention is going to be successful and furthermore, it is also difficult to keep the invention a secret as soon as it enters the market in any form (Sterckx, 2006). Trade secrets is justified by another normative theory of “veil of ignorance” given by John Rawls which assumes hypothetically a state of nature preceding the rights for distribution in which the people authorized to make the decision, are unfamiliar to what will be their position if the distribution is completed, to which Professor Bone argues that such decisions made on assumptions may fail and hypothetic arrangements may not consider real world market (Risch, 2010). Another possible justification for trade secret is populist theory where a mass of people supports its protection through legislation, and as a result, trade secrets as a form of IPR was accepted by most legislatures but is criticized as a means of overshadowing small companies by large enterprises within the market (Risch, 2010). It is also argued that social benefits may be suppressed by personal profits as the protection to IP increases and the inventors may attach additional gains to complimentary inventions (Braga and Fink, 1996).
According to Hughes (1988), labor theory of IP is dominant yet deficient and needs to be supported by a personality theory in which property is justified as a manifestation of unique oneself. Personality theories by both Kant and Hegel are referred to while justifying IPR but Hegelian version is more popular (Aplin and Davis, 2009). As noted by Waldron (1988), ‘The Lockean theory makes the human right to property conditional whereas Hegelian theory makes it unconditional’. Thus, IPRs create a moral obligation for shaping individual’s personality (Richards, 2002). But, the demonstration of personality depends on variable degrees in different inventions (Hughes, 1988). Similarly, Trademark law was created to refine the quality of information circulated within the marketplace. Traditionally, protecting the customers is a primary justification for trademarks (Dinwoodie and Janis, 2008). However, Hughes (1988) argues that it is through advertising that customers should be communicated the right information and not by trademark. Instead trademark is the manufacturer’s right of expression, in accordance to the personality aspect of the theory of property which helps the owner secure respect, create goodwill and consequently create a distinct personality for themselves, within the market through the trademark. It is noted that personality theory is difficult to apply technology related IPRs of patents, copyrights and trade secrets as they are created subject to specific needs and the inventor does not think of extending his personality into his invention (Hughes, 1988).
Other than the theories, other arguments justifying permitting of IPRs are, the economic growth of a country, which is closely related to technological inventions, implying the need to have IPRs to promote innovation and sanction transfer as a part of their strategy to attain commercial success as it is a knowledge-driven society and it is important to protect all the information by law (Braga and Fink, 1996). Also, IPRs are a stimulator for trade growth between developed and developing countries, where there is a strong link between IPRs and imports as pointed by Mohan Penubarti (Spence, 2007). As IPRs are created, exploited and traded across the globe for various businesses and research & development, it becomes important to protect them. Transfer of technology still remains one of the oldest arguments for granting IP protection as IP owners are less eager to transfer their registered knowledge to countries with a weak IP protection due to the risk of their valuable data being stolen and eventual occurrence of loss (Braga and Fink, 1996). To support this statement, as an example, China has a weaker IP protection because of which piracy and counterfeiting remains a large scale problem for all companies as these fake goods originate from China and reach consumers globally which is detrimental to the companies in the long run (Spence, 2007).
3. CONCLUSION
From the discussion above, despite of the debatable aspects of IP and the justifications, it can be concluded that it is important to protect IP, to safeguard the author and his creativity from unnecessary exploitation and encourage new developments for the betterment of mankind. However, it is important to note that these traditional arguments cannot justify IP protection to different and recent inventions especially in the field of technology and science. However, all theories have their own advantages and disadvantages but IP as a whole is the outcome of mental processes and thoughts indicating that knowledge is infinite and hard to control. However, due to existence of IPRs and protection mechanisms, it can be regulated and used for the benefit of the mass and financial value could be attached to it.