Justifying Ipr Module 2

8/11/2019 Justifying Ipr Module 2

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Philosophical

Justifications

General Introduction to Intellectual Property


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Why Protect IntellectualProperty?


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Why Protect Intellectual

Objects?

The philosophical justification for granting propertyrights is grounded in two different theories aboutproperty.

One theory is based on the rationale that a propertyright is a type of natural right that should be grantedto individuals for the products that result from the laborexpended in producing an artistic work or a practicalinvention.


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The other theory is that property rights are social contracts

designed to encourage creators and inventors to better serve

society by bringing forth their artistic works and practical

inventions into the marketplace.


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Four moral intuitions regarding IP and

copyright protection

The Scholar Ideas should not be restricted. Good comes from theirsharing and challenging against other ideas. Yet it is not right to claimsomeone elses idea as ones own. What is important is correctattribution.

The EntrepreneurBusinesses expend time and resources in the

research, development, production, and marketing of products in thepursuit of profit. Undercutting a company by copying their productdenies the company the return they deserve for their efforts.

The ConsumerWhat consumers buy is their own to use as they see fit,so far as they do not violate the second intuition.

SocietyIP is essentially social and should be used for the commongood. If there are conflicts between the common good and individualclaims to IP then appeals to the common good may take precedence overindividual claims.


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Moral Justifications for Intellectual

Property

The two standard arguments that weve already

examined, taken together, are what De George

calls the Standard Argument (SA):

Fairness/JusticeThose who spend time, money, andresources in developing a product or expression of an idea

deserve the chance to receive compensation.

UtilitarianSociety benefits from new products. The best

way to encourage the research and development of new

products is by ensuring the opportunity to recoup theirinvestment and to make a profit.


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Philosophical Foundations


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Philosophical Foundations

Lets briefly characterize three theories that have

traditionally been used to justify property rights (before

the cyberspace era):

The Labor Theory of Property The Utilitarian Theory of Property

The Personality Theory of Property


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LOCKES LABOUR THEORY


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The Labor Theory of Property. The basic idea behind this

approach is that a person has the right to the fruit of his or

her labor.

This approach traces its origins to 17th century philosopher

John Locke.


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John Locke (1632-1704)


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Lockes Theory of Appropriation

1.Nature was created

for all to share; it is acommon


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Where does labor enter into it?

Whatsoever he removes out of

the state that Nature hathprovided and left it in, he hathmixed his labor with it, and

joined to it something that is hisown. . .


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1. Nature was created for all to share;it is a common

2. We each own our body, and thelaborit produces

3. this labor being theunquestionable property of thelaborer


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For Locke, it is fundamental that

these belong to the individual;no one has a superior or conflictingclaim

Each person is bornfree


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1. Nature was created for all to share; it is a common

2. We each own our body, and the laborit produces

3. Mixing labor with the commonyields a valid property claim

4.Subject to caveats andprovisos; not an absoluteclaim


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1. The famous sufficiencyproviso

No man but he can have a right to what [his labor] is

once joined to, at least wherethere is enough and

as good left incommon for others.


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The same law of nature thatdoes by this means give us

property, does also boundthat property too.

-- Second Treatise, 30; p. 3


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2. Spoliation Proviso

As much as anyone can make use of

to any advantage of life before itspoils, so much by his labor he mayfix his property in . . . -- p 3


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3 Lockean Provisos

Sufficiency (as much and as

good left over)Spoliation


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Labor is far from an absolute

claim to titleHe that had as good left for his

improvement as was already

taken up needed not complain,ought not to meddle with whatwas already improved byanothers labour

; if he did it isclear he desired the benefit ofanothers pains . . .

-- 2ndTreatise, 33


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PERSONALITY THEORY


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The Personality Theory of Property. According to thepersonality theory of property, the intellectual object is anextension of the creators or authors personality.

For this reason, advocates of the personality theory believethat artistic works deserve legal protection.


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Hegel, personhood and self-realization


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Basic Hegelian concepts

Individual will

Autonomy (freedom to

choose and act)


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Hegel and stages ofdevelopment

The will is ineffectual when trapped inside theindividual

Projection of the will eg via property claims is animportant step forward

Merging of individual wills into a functional, other-

regarding state is the end goal


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Simple version

To become fully self-realized, anindividual must be able to project hisor her will onto objects in the external

world

This requires a stable set of claims overthose objects i.e., property rights


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Control: maintain the

object in the intendedstate; hold it steady, topermanentlyaffix thewill to it


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Labor vs. will

Labor may be the result ofconscious choice

But willis the part of us thatdoes the choosing; it ismore an integral part of whowe arethan labor which ismore a quality or product


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JK Rowling


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JK Rowling:

Locke: she worked hard in drawing from a longtradition of wizard and coming of age tales, and

so deserves copyright in her Harry Potter books

Hegel: The writing of these books literally helped

make her who she is, or helped her more fullyrealize who she really is


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Utilitarian theory


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The Utilitarian Theory of Property. According to this theory,

granting property rights will maximize the good for the

greatest number of people in a given society.

Utilitarian theory underpinned the rationale used by the

framers of the US Constitution for granting intellectual

property rights.


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Utilitarian Perspective

Jeremy Bentham

(1748-1832)

Bythe principle of utility is

meant that principle which

approves or disapproves of

every action whatsoever,

according to the tendencywhich it appears to have to

augment or diminish the

happiness of the party

whose interest is inquestion: or, what is the

same thing in other words,

to promote or to oppose

that happiness."


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Utilitarian moral philosophy or ethicscan be simply described as "the art

of directing men's action to theproduction of the greatest possiblequantity of happiness, on the part ofthose whose interest is in view."


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John Stuart Mill

Mill argues that themoral worth ofactions is to be

judged in terms ofthe consequences ofthose actions.


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The utilitarian perspective

The greatest good for the greatest number

Rights follow only from calculations of collectivewelfare

Natural rights are useless Jeremy Bentham


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Landes and Posner


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The other side of the coin

INFORMATION WANTS


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INFORMATION WANTS

TO BE FREE

Richard Stallman is opposed to intellectual propertyrights for software.

He did copyright his emacs editor, but he claims he did

this to prevent others from copyrighting and thenmaking a profit from his software.

Stallman has been a staunch advocate of the view thatINFORMATION WANTS TO BE FREE.


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Stallman believes that programmers would continue to write

software programs even if they received no financial rewards

in the form of copyright protections.

Stallman makes the point that information is something that

human beings desire to share with one another.

Stallman believes that software development is like science.

Science progresses most rapidly when knowledge is shared

openly.


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According to Stallman, in order for information to be shared,

it must be communicated, so elaborate intellectual property

structures and mechanisms that prohibit, or even discourage,

the communication of information would seem to undermineits very purpose as something to be shared.

Your reaction?

INFORMATION WANTS


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INFORMATION WANTS

TO BE SHARED

Herman Tavani argues that INFORMATION

WANTS TO BE SHARED has a chance to be

taken far more seriously than INFORMATION

WANTS TO BE FREE.

The WWW came into being because SIR Tim

Berners-Lee, who invented HTTP, shared it

freely with the world.

The idea behind HTTP was to allow for the

sharing of information.


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Doug Englebart never received a patent for his invention,

the mouse. He shared it freely with everybody.


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The sharing of this kind of information has benefited many ofthose entrepreneurs who now seek to control the flow ofinformation in cyberspace.

MS Windows ultimately derived from ideas that came fromApple and Steve Jobs (at Apple) got most of those importantideas from Xerox PARC.

It is reasonably accurate to say that current user interfaces

have benefited from the sharing of information along theway.


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The Open Source movement is certainly consistent with this

idea that INFORMATION WANTS TO BE SHARED.

Eric Raymond was greatly influenced by Richard Stallman.

PRESERVING THE INTELLECTUAL


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PRESERVING THE INTELLECTUAL

COMMONS

They are similar to ideas expressed by the Stanford

University law professor, Lawrence Lessig.

Lessig is a strong supporter of the Open Source

Movement.


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The key question relates to the future of the intellectual

commons.

What if all the information that we have traditionally shared

freely were to disappear from the public domain and enter

the world of copyright protection?

In the short term, the result might be that corporations and

some individuals will profit handsomely from this

privatization of information policy.


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In the long term, however, our society may be worse off

intellectually, spiritually, and even economically, if the short-

term goals or privatization are not balanced against the

interests of the greater public.

If these topics interest you, you might want to look at some

of Lessigs books.


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Justifying protection for

trademarks


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Why Protect?

1. Protecting the

consumer.

2. Protecting the

businesses.

1. Property rights

2. Landes and Posner

3. Developed through

common law system

which allowed tort of

deceit

4. Infringement-to preventconfusion

5. Dilution-to maintain

integrity and uniqueness

of the mark


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Rational basis

To identify origin or ownership of the goods to


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o de t y o g o ow e s p o t e goods to

which TM is affixed.

1.Craftsmen used the marks to differentiate goods

2. Industrialization resulted in merchants using marks to

identify goods and had nothing to do with the origin or

source of the goods.

3. Regulatory requirement to affix marks- defective work

could be traced back to the craftsmen and punished or

foreign goods smuggled may be confiscated.

4. Probably indicates that emanate from the same

anonymous source from where the earlier goods of a

particular kind or quality came from.


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.contd

5. Trademark law, by preventing others from copying a

source-identifying mark, reduce[s] the customer's costs of

shopping and making purchasing decisions, for it quickly

and easily assures a potential customer that this itemthe

item with this markis made by the same producer asother similarly marked items that he or she liked (or

disliked) in the past.

6. True function of TM then is to identify a product a

satisfactory and stimulate further purchases.


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2. To prevent deceitful sale

Common law concept of passing off

Equity

Unfair trade

3 Product differentiation


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3. Product differentiation

function

HONDA v HYUNDAI v Ford v Volkswagen

Nike v Reebok v Adidas v Puma


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4. Quality Function

trademarks as being identifiers of quality providing

consumers with information about the quality of their

products, and based on the consumer's previous

satisfaction when making purchases.

manufacturers have the required incentive to produce

products of high, indeed superior quality

This argument contends that owners of well-known

trademarks should enjoy protection even when use ofsuch trademarks by a third party is for dissimilar goods

Ancillary function


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Contd

No law or regulation mandates that a TM owner has to

maintain the same level of quality for all products

bearing the mark.

Not a guarantor of any quality

However enables the producer to earn through licensing

Can employ control over the licensee to maintain

quality. Non-compliance of this requirement by thelicensee can result in termination of the license.


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5. Instrumental tool in

advertising


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6. Tool for building reputation or

goodwill


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7. Reduces the cost of searching

Trademark law, by preventing others from copying a

source-identifying mark, reduce[s] the customer's costs

of shopping and making purchasing decisions, for it

quickly and easily assures a potential customer that this

itemthe item with this markis madeby the sameproducer as other similarly marked items that he or she

liked (or disliked) in the past.

Justifying Ipr Module 2

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