1.

Introduction:
Defining Intellectual Property
(Law)
 The Notion of Intellectual property: is used
ambiguously in many writings and legal
instruments. Most (international) legal
instruments leave it undefined. Scholars
follow different approaches to understand
intellectual property.
 In terms of the rights accorded by law
(with respect to creations in different
fields)-system of legal protection
 in terms of the subject matter
protected/covered-inventions, writings and
other creative products protected.
 cont’d

 Article 2 of the Definition

Convention Establishing the
WIPO (1967) defines intellectual property to
include the rights relating to:
– literary, artistic and scientific works,
– performances of performing artists, phonograms,
and broadcasts,
– inventions in all fields of human endeavor,
– scientific discoveries,
– industrial designs,
 cont’d

– trademarks, service marks, and commercial names and

designations,
– protection against unfair competition,
and all other rights resulting from intellectual activity in
the industrial, scientific, literary or artistic fields.
 Art. 1 (2) TRIPS: --intellectual property

refers to all categories of intellectual

property that are the subject of Sections 1
through 7 of Part II.
-but other provisions refer to intellectual
property rights, e.g., preamble, Arts. 5, 6. 7
---
 cont’d
-more importantly, part II refers to
intellectual property rights
-part II itself does not define intellectual
property rather; all can be told is that
Part II relates to 7 categories.
-interpretation by scholars in terms of
rights.
 Article 2 (1) of the EIPO
establishment proclamation No
320/2003 defines IP as :
 Definition-cont’d
 ‘a legal right over a creative work of the human
intellect and includes patent, trade mark, registration
certificate and copyright.’ This is also consistent with
the definitions given to copyright, neighboring rights,
and patent. However, trademark is defined in terms
of ‘signs and combinations of signs---.’
 Both instruments: rights approach? Open ended?
 In both approaches: legal protection and
creation.
 Therefore, IP law is a law that regulates
creation, exploitation/dissemination of
creative works/fruits of mental labor.
 3. Emergence of IP: Property Status

 The institution of Private property was originally

conceived and applied only to tangible goods;
 IP (intangibles) acquired property status only in more
recent times. The problem follows distinction
between mental labor and physical labor. Both
opponents and proponents accept the distinction.
 Mental labor: involves exertion of genius and thought
 Manual labor: involves exertion of bodily strength
and corporal application.
 In fact the law recognized intangible property
before IP; however, in case of IP there is no direct
connection with physical property.
 Emergence of IP-cont’d
 However, the controversy pertains to whether
property shall embrace mental labor.
Arguments raised by opponents generally
relate to incorporeal nature of IP.
 mental labor does not exhibit the crucial

characteristics of property i.e., due to the non

physical or intangible nature. That is, nothing
can be the object of property which has no
corporeal substance.
 Emergence of IP-cont’d
• This lead to the following three specific arguments
against IP:
a) The way title to property arises: occupancy (taking
possession) is source of acquisition of original title
to property. Some act of appropriation has to be
exerted to take a thing out of state being common.
But IP can not be occupied this way. Proponents
responded in the following two ways:
 Emergence of IP-cont’d
- Occupancy, if understood properly includes principal
source of IP, i.e., IP can be occupied (but no specific
indication as to how, except the labor applied).
-Occupancy does not have relevance to IP (i.e., changed
social, economic, technological and cultural
circumstances where new rights of most valuable
kind have been established). Proponents emphasized
on labor as source of acquiring original property.
Occupancy is not the only source of acquisition of
title.
 Emergence of IP-cont’d
b) The second specific objection raised by
opponents of IP relates to the question of
existence and identification of IP. That is, the
owner of the property can not be ascertained
and it is difficult to determine whether the
interest in the property is harmed.
Furthermore, it is difficult to demarcate the
protected zone (and distinguish one’s rights
from the other). Proponents reply as follows:
 Emergence of IP-cont’d
- The owner’s interest can be harmed (looking in to
future financial interest/profit); further more, they can
be identified and distinguished through authors name
affixed to the work and through prints of the works.
c) Publication constitutes forfeiture; concern over
economic and cultural consequences of recognizing
IP. After publication authors should not be allowed to
control the ideas and sentiments in the work. The
main fear is copyright in published works will
impinge on the rights of authors and consuming
public. Public interest takes precedence over private
 Emergence of IP-cont’d
 Responses by proponents:
 the objection has no relevance because

they have different view of what should

be protected. Protection is not on
knowledge, sentiment and ideas but to
printing and reprinting the surface text.
In fact this approach was self refuting
because printing of text does not include
non textual copying. This led to shift
from print to essence of the protected
work, i.e., idea expression dichotomy.
-Space for IP in the Civil Code
 3. Theories of property
 Economics of property in physical
property are relevant to understand IP.
 Property right is a legally enforceable
right to exclude others from using a
resource. Contractual alternatives not
feasible to replace property right.
 Others can access the resources
protected only on terms acceptable to the
owner. I.e., property right includes the
right to exclude and to transfer. =
Efficiency
 Theories of property –cont’d
• Property in tangibles is exclusive;
should we follow same approach with
respect to IP? (monopolistic effect).
More over, it can be consumed by
several at a time.
 Property right is not desirable if resources are not
scarce (i.e., no transfer value) or if enforcement cost
is disproportionate to its value.
a) Labor Theory/Natural Right Theory/Locke
• A man is entitle to fruits of his labor; What a person
produces with his own intelligence, effort, and
perseverance ought to belong to him, no one else,
i.e. it would not have existed if not for his labor
 Cont’d
 The assumption is that one owns his body
and owns what it does ,i.e., labor.
Therefore, one owns what he joins his labor
with, i.e., the products of his labor.
 Questions:
 Why one gains by mixing his labor with
instead of losing it?
 Why own the total value of the resulting
product instead of the value of his labor?
 Does labor (including intellectual) always
create 99% of the value and is it fair to
concede the whole value to the last
contributor?
 Cont’d
 What is the logical nexus between the right to
own labor and the right to own its market
value? (though labor theory may justify the
right to personally possess use fruits of labor).
 In relation to intellectual works, should not
we consider the purpose for which the work is
created?
 In relation to IP is the proviso “"enough
“ and
as good left in common for others’ (i.e. no loss
to others) not violated? E.g. patent-
unpatented independent inventors
 What about the second proviso, i.e., no
spoilage/wastage, i.e., one can not take more
than he can use?-since creations are non
exclusive, can this requirement ever be
satisfied?=prevention of beneficial use
 b. SOVEREIGNTY, SECURITY, AND PRIVACY
 Private property is a means to sovereignty-

dominion over certain objects is important for

individual autonomy. Such sovereignty is
essential for dignity.
 Not having to share one’s personal possessions

or borrow them from others is essential to

autonomy.
 Using or consuming certain objects is necessary

for survival.
 Therefore, property right (ownership) over these

objects gives control over means of survival and

this promotes independence and security.
 This lessens dependence between individuals

and takes power from groups and gives to

individuals.
 Justifications cont’d
 Private property also promotes privacy-
individual is sovereign and less
accountable to others.
 But does IP help attain these goals?
Exclusive rights do not enhance these
goals and promote the worth of authors in
the eyes of public.
 Cont’d
b) Economic Theories: Economic benefits
of property rights
i) Static: property right protect a
property against the risk of over
exploitation (due to congestion and
crowding); But the question is how
much to leave to public domain.
Moreover, IP is non rivalrous-additional
use does not diminish the
substance/consumption by one does not
diminish consumption by others, i.e., it
is by ‘economists’ view, public good.
 Property theories-Cont’d

ii) Dynamic Benefits: property rights (in physical

things) are incentives in creation and improvement
of resources. Hence, no risk of under maintenance.
 Is there risk of under maintenance in case of IP?
(marginal cost of additional use is zero). (Though it
serves as incentive to invest in creation)
 4. Costs of property
Right
 Transaction cost
 Rent seeking
 Cost of protection