1. Introduction to IPR Law
LLM PAPER-I - Introduction to IPR
PAPER-
IPR concept & Theories
by
SANJEEV KUMAR CHASWAL,
IPR Attorney and Advocate

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

3. 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
un-
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
right.
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.
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,
reformed.
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
creative intellectual activity, which in turn is important to human

4. A third group takes the view that property rights in general -- and intellectual-
property 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

5. A patent is a legal monopoly granted for a limited time to the owner of an
invention.
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
process.
either through their own business or by charging a license fee. The
fee.
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
marble.
to a Flemish glassmaker for a method of making stained glass windows.
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
novelty.
leather, salt, iron, and paper was patented.
patented.
The consequent high prices of these goods led to accusations that such
perpetual monopolies were unjust.unjust. Responding to this criticism,
numerous patents were revoked. For example, the monopoly on the
revoked.
production of playing cards granted to Edwin Darcy was rescinded.
rescinded.

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

7. Tom Palmer critically analyses three distinct arguments in favour
of intellectual property rights. That are as follows:
rights. follows:
Moral Desert Theory
Personality Theory
Utilitarian Theories
An Alternative Model: The Libertarian Utopia
Model:
Moral Desert Theory: According to Locke, “every man has a property in
Theory:
his own person”, i.e. the fruits of a man’s labour belongs to him. In this
him.
scheme intellectual property would seem to follow naturally, since the
individual must surely be permitted the fruits of his mental and physical
labour.
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
mind.
justified if they are implemented in such away that rights of an individual
are protected without infringing on another.
another.
Personality Theory: According to Kant and Hegel, if one’s artistic
Theory:
expressions are synonymous with one’s 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.
person.
However Palmer counters this by saying that if a work of art were part of
an individual’s personality then they would cease to exist after the person
died.
died.

8. Utilitarian Theories: Advocated by economists such as Bentham and
Theories:
Mill and assume that the objective of any policy should be the attainment
of the greatest good for the greatest number. However utilitarian
number.
arguments can be cut for or against the claims of intellectual property
rights.
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
diffusion.
cannot be measured against the losses suffered.
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
prices).
instance, from its establishment in 1875, the US company AT & T
1875,
collected patents in order to ensure its monopoly on telephones. It
telephones.
slowed down the introduction of radio for about 20 years. However, it
years.
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
creation.
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
before.
copyrights do not run a foul of the “Lockean Proviso”: “An inventor’s
Proviso”:

9. There are no easy and precise answers to this issue. Thus for the purpose
issue.
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
Model:
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,
exist.
innovations are freely accessible and can be utilised by anyone. any
anyone.
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.
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
all.
produces, with their own hands and/or with their own capital in
collaboration with their creative mind, is their exclusive property. But once
property.
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
rights;
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.
everyone.

10. 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
transfer, not duplication. So in the case where someone buys a new computer,

11. All the world’s 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 another’s creation, manifested in
the former’s 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.

12. 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 another’s 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 else’s
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

13. 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.

14. 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.

15. 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.

16. 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

17. 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).

18. 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.

19. 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

20. 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
inventions? Determining which set of rights would be optimal well beyond our

21. 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
confusion. catch-
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,
rights“.
patents and trademarks in the singular and warns against abstracting
disparate laws into a collective term.
term.
Lawrence Lessiq, along with many other copyleft and free software
Lessiq,
activists, have criticized the implied analogy with physical property (like
land or an automobile). They argue such an analogy fails because
automobile).
physical property is generally rivalrous while intellectual works are non-
non-
rivalrous (that is, if one makes a copy of a work, the enjoyment of the
copy does not prevent enjoyment of the original)

22. 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 guy—let's call him
Galt-Magnon—decides to build a log cabin on an open field, near his crops.

23. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-
Magnon, and they start building their own cabins. But the first man to invent a
house, according to IP advocates, would have a right to prevent others from
building houses on their own land, with their own logs, or to charge them a fee
if they do build houses.
It is plain that the innovator in these examples becomes a partial owner of the
tangible property (e.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
Thomas Alured Faunce have written.

24. 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
ideas.
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
prosperity.
profit motive are the biggest threat to our enjoyment of new ideas, our
progress and even our existence as a species.
species.
Capitalism is a greedy system. It seeks profit everywhere and turns
system.
everything into private property. In doing so, it inevitably destroys all
property.
those things we hold in common - the “commons”. The world is
“commons”.
dominated by capital. Wage labourers do the work and turn the profits
capital.
for capital because they have no other way of making a living. And that's
living.
because in the past we were disinherited from our “commons”, which
were enclosed by the rising capitalist class.
class.
So what? Isn't that all in the past? Well, actually no. Consider the
no.
Internet.
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
water.
Brazilian rain forests and wildlife are all commons, and all under threat.
threat.

25. In Capital, Marx explains the process of primitive accumulation, which
established the preconditions for capitalist production. On the one hand,
production.
rich men gained fortunes in money rather than land or slaves. On the
slaves.
other hand, the common people were reduced to property less
proletarians, forced to sell their labour power in order to live.
live.
Marx uses Britain as his example of primitive accumulation. Part of this
accumulation.
expropriation was the separation of the people from the commons. commons.
Medieval and early modern villages had, at their centre, the crop fields.
fields.
All around were “wastes”, which supplied wood for fuel and building
materials, running water and fishing rights and rough grazing for their
animals.
animals. The villagers could not make a living without these commons.
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.
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
feudalism.
usurpation, generally accompanied by the turning of arable into pasture
land, begins at the end of the fifteenth century and extends into the
sixteenth.
sixteenth. But at that time the process was carried on by means of
individual acts of violence…
violence…

26. 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…
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.
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
behaviour. (E.
common, Penguin Books, 1993). This piece of doggerel from the
1993)
seventeenth century shows the hatred felt by common people against the
enclosure movement:
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.”
goose.
A similar process of expropriation took place in the Scottish highlands in
the years after Culloden. Marx explains the situation.
Culloden. 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,
settled.
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

27. Economics” continues to justify the theft of the commons. The classic piece
commons.
is Garrett Hardin's article, 'The tragedy of the commons' (Science, 162, 162,
1968, pp. 1243-1248)
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.
California. subject.
He prefers to appeal to the reader to perform a so-called 'thought
so-
experiment.'
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,
enclosure.
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.
crust.
Hardin's theorem is a fable from beginning to end. The commons were not
end.
actually open to all and sundry to graze their animals upon. This right was
upon.
reserved to people known as the commoners, usually the local villagers.
villagers.
Even the commoners' grazing rights were strictly regulated by officials,
known in Britain as beadles, in order to prevent overgrazing. “Historians…
overgrazing. “Historians…
agree that there is no evidence that common land use was itself
unsustainable.
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
economists.
economist Thomas Malthus. Malthus believed that growing population
Malthus.
pressed against finite natural resources. His was a powerful reactionary
resources.

28. 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.)
here.
The extreme examples of external effects on economic activity are public
goods.
goods. This refers to a narrow range of products with two characteristics.
characteristics.
They are non-rival in consumption and non-excludable. Public goods are
non- non-excludable.
to be compared with private goods. These are rival in consumption. If I
goods. consumption.
eat a KitKat, you cannot eat the same KitKat. I can also deprive you of
KitKat, KitKat.
access to my KitKat by buying it and keeping it in my pocket - that is, I
can exclude you from it.
it.
There is non-rivalry in consumption because there is zero cost of
non-
reproduction for another user. The logic of this in neoclassical welfare
user.
economics is that the good should be provided free. After all, a charge is
free.
only levied in neoclassical theory because supplying an extra unit involves
additional real cost.
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.
fail.

29. 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
paying.
light or lighthouse. So how can a capitalist sell light for profit?
lighthouse.
An example of this intellectual property is copyright. Charles Dickens'
copyright.
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
there.
principle was that Dickens wrote the books; he deserved the reward. That
books; reward.
principle has been turned upside down by the new privatisers who are
using intellectual property laws to steal our intellectual commons. A
commons.
classic example is the articles academics write for learned journals. You
journals.
might think they get paid for their efforts. Not a bit of it. They assign the
efforts. it.
copyright to the publisher. They can't even distribute the article they've
publisher.
written to their own students without permission.
permission.
Obscenely, the ownership of things has been extended to life forms. The
forms.
US firm RiceTec has laid claim to own basmati rice. Everyone knows that
rice.
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. peasants.
These peasants would have regarded this superior strain of rice as a gift
to future generations.
generations.

30. 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
mind.
knowledge.
knowledge. A nation's ability to convert knowledge into wealth and social
good through the process of innovation will determine its future. In this
future.
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
world.
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.
21s agenda.
Intellectual property will no longer be seen as a distinct or self-contained
self-
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
concerns.
IPR and leverage its influence will need increasing focus; in particular, in
focus;
the third world

31. 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, today’s
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.

32. 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
country’s 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

33. 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

34. 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

35. The Global Politics of Intellectual Property
Rights
With the establishment of the World Trade Organisation in 1995, the Trade
1995,
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 WTO’s legal
to.
instruments, which are concerned with the manner in which state’s
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
properties).
TRIPs agreement did not mandate how these laws should be framed they
did require them to bring into existence certain rights and obligations.
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).
(WIPO). These programmes have sought to establish the western mind- mind-
set and legal processes of intellectual property as best practice around
the world, although not always easily or completely. Indeed, laws cannot
completely.
properly function without widespread social acceptance and the
establishment of legitimacy, and this has become a major problem with
intellectual property; its legitimacy as a legal form is increasingly
property;

36. 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’,

37. 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

38. 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 millennium’s 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 IPR-
owning 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