As one browses through the current affairs of the intellectual property world, definite trends and patterns are easily noticeable. International IP institutions continue to work towards upward harmonization – more stringent standards. More awareness campaigns are being spread to inform people about intellectual property rights and their value. While intellectual property rights are getting more standardized and harmonized, I often wonder something more fundamental. Why should they be – in any sense? I know how it’s happening – a few whispers and a few suitcases to the right people in America (usually), and there’s a butterfly effect across the rest of the world – but let’s look a little deeper into the issue.
First, in terms of international harmonization – the standard argument that arises is that the lack of localization and contextualization of IP policies hinders both growth of local industries as well as access to innovations. This argument also usually outlines the developmental difficulties that are effected in developing countries by such harmonization and points out that most, if not all, developed countries themselves used a much weaker IP regime while their industries were increasing their capabilities. Asking developing countries to implement a strict IP regime while their industries are still developing is unhelpful for local industries and the local demograph doesn’t receive equitable benefits . Countering this – with little evidence – is the argument that harmonization will allow technology and its benefits to trickle down into the recipient country.
Secondly, let’s look at the ‘main’ constituents of ‘intellectual property’ -patents, copyrights and trademarks. Patents and copyrights allegedly serve as incentives for creation. Trademarks serve to prevent confusion as to the origin of a product, regardless of innovative or not. Two very different functions, yet thrown under the same umbrella term of ‘intellectual property’. More importantly, zooming within just patents – The same IP regime that is applicable to the invention of toilet seat air freshener is also applicable across all sectors of technology including life saving medical devices, space shuttle technology and robotics – 20 years of protection as long as the invention satisfies the three (ever loosening) criteria of novelty, non-obviousness and utility.
And no one really knows how or why this number of 20 years came about. I can only assume it was to serve as a guesstimate as to how long it would take to receive the required incentives. Certainly there are certain sectors of technology where the market lead time that a decent innovation would make is sufficient to receive the required incentives – such as software, which in any case is usually obsolete after just 10 years, forget 20.
As to why this time period would remain the same over all sectors of technology from ‘serendipitous innovations’ to ‘capital heavy grunt-work innovation’ to ‘new software’ is pretty much anybody’s guess. There is certainly no normative reason for having the same rules applicable everywhere – especially since granting this 20 year period of exclusion stops the flow of information regarding the protected parts of that innovation – which is detrimental for society unless there are proportionate benefits being delivered.
Thirdly, what exactly is meant by terming it a ‘right’? Intellectual property, in function, is a government granted exclusion which is given to innovators so that they can get back their investments as well as some additional incentives / rewards. But let’s be clear that it is merely one way of incentivizing innovation, and one with little evidence to support it as a better way than any other way. Certainly, it is the most dominant form present today for a variety of reasons (the lobbying power of industries which have become dominant through them being a major one) but should it become a ‘right’? Perhaps it is just a question of semantics, but with increased upward harmonization, the rhetoric of ipR has framed the equation with undue importance on the necessity of these ‘rights’ for creation and innovation, to not only the mindless strengthening of these rights but also the unfortunate exclusion of other viable options.The famed Prof Merges, one of the world’s foremost IP experts, in his latest book “Justifying IP“, says that viewing IP as a ‘right’ is perhaps more correct than viewing it through a utilitarian lens of being a social tool for maximizing social benefit. I’m only part way through the book, and given his stature in the IP world, it’s with extreme trepidation that I say I’m not fully convinced that even he has made a case for viewing it as a right. He tries to combine Lockean, Kantian and Rawlsian theory to build a strong ethics-based case for IP but isn’t always convincing. This book is probably one of the best defenders of viewing IP as a ‘right’ and I look forward to completing the book, but as of now at least, I can’t really say I’m convinced of it.
/ EndRant
