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Published: Fri, 02 Feb 2018
Intellectual Property Disertation
1. Definitional Observations
‘Intellectual Property’ is a generic term that probably came into regular use during the twentieth century. This generic label is used to refer to a group of legal regimes, each of which, to different degrees, confers rights of ownership in a particular subject matter. Copyright, patents, designs, trade marks and protection against unfair competition form the traditional core of intellectual property. The subject matter of these rights is disparate. Inventions, literary works, artistic works, designs and trade marks formed the subject matter of early intellectual property law. One striking feature of intellectual property is that, despite its early historical links to the idea of monopoly and privilege, the scope of its subject matter continues to expand. The twentieth century has seen new or existing subject matter added to present intellectual property systems (for example, the protection of computer software as part of copyright, the patentability of micro-organisms as part of patent law), and new systems created to protect existing or new subject matter (for example, plant variety protection and circuit layouts). The strongly expansionary nature of intellectual property systems shows no sign of changing. Internationally, for example, special legal protection for databases remains part of the work program of the World Intellectual Property Organization (WIPO).
Trying to define the essence of intellectual property is difficult. Most definitions, in fact, simply list examples of intellectual property rights or the subject matter of those rights (often in inclusive form) rather than attempting to identify the essential attributes of intellectual property. One should also note that individual intellectual property statutes provide definitions of the subject matter of their application. So, for example, copyright statutes will typically define terms such as ‘literary work’, as well as stating that copyright in a work consists of particular exclusive rights. Patent statutes define the term ‘patent’ in terms of invention and then specify the criteria of patentability. The definitional dimensions of intellectual property are further complicated by the fact that intellectual property regimes are the products of different philosophical and legal traditions. The term ‘copyright’, for example, refers to those common law systems that characterize the exclusive rights of authors in essentially economic terms (the rights to reproduce the work, to publish it and to adapt it are examples). Within civil law systems, the rights of authors are seen, at base, as being about the protection of the authorial personality (the right to be acknowledged as the author of the work and the right to control alterations to the work are the core rights). These systems are not referred to as copyright but rather as authors’ rights.
A definition of intellectual property that moves beyond lists or examples and attempts to deal with the essential attributes of intellectual property has to focus on two elements: the property element and the object to which the property element relates. Intellectual property rights are often described as intangible rights. The idea behind this classification is that the object of the right is intangible. All property rights place the rightholder in a juridical relation with others. The key difference between rights of real property and intellectual property rights is that in the latter case the object of the right is non-physical. One can think of it as an abstract object rather than a physical object. It is possible that one can ‘own’ the abstract object without owning a particular physical manifestation of the abstract object. A letter sent to a friend, for example, results in the property in the letter passing to the friend, but not the copyright.
For the purposes of this paper, we will say that intellectual property rights are rights of exploitation in information. Information is becoming “the prime resource” in modern economic life. Even in apparently non-information industries like agriculture, the control and ownership of genetic information has become a major factor, shaping the structure of that industry. It is precisely because information has become the primary resource that the exploitation of information through the exercise of intellectual property rights affects interests that are the subject of human rights claims. Property rights by their nature allow the rightholder to exclude others from the use of this prime resource and so they are likely to produce instances of rights conflict. To illustrate the point somewhat tersely: property in expression (copyright) conflicts with freedom of expression.
The next section of the paper will, in a brief span, describe the evolution of intellectual property law. The historical focus is on the emergence of intellectual property as part of the positive legal order of states. All societies have had to devise norms for regulating the ownership and use of different kinds of information. Historically, this has been especially true of religious information. One can thus identify customary equivalents of intellectual property. But the western intellectual property tradition is rooted in the idea that intellectual property rights are positive rights created by the state for the benefit of the commonwealth. Within Thomist political theory the validity of positive law was itself to be judged by the axioms of natural law. The norms of positive law had to converge with the divine design which natural law communicated to men. The rules of positive law then met the test of validity, not by being a mirror reflection of some metaphysical counterpart, but rather by whether or not they contributed to the overall divine plan. Conceptually speaking, this allowed someone working within the natural law tradition to recognize the right of a state to modify property rights through the enactment of positive law.
The protection of intellectual property at an international level can roughly be divided into three periods. The first period, the territorial period, is essentially characterized by an absence of international protection. The second, the international period, begins in Europe towards the end of the 19th century with some countries agreeing to the formation of the Paris Convention for the Protection of Industrial Property, 1883 (the Paris Convention) and a similar group agreeing to the Berne Convention for the Protection of Literary and Artistic Works, 1886 (the Berne Convention). The third period, the global period, has its origins in the linkage that the United States of America (the U.S.A) made between trade and intellectual property in the 1980s, a linkage which emerged at a multilateral level in the form of the Agreement on Trade-Related Aspects of Intellectual Property Rights, 1994 (the TRIPS Agreement). The dates of the various conventions do not represent a sharp epochal divide. They do mark a significant change in the evolutionary direction of intellectual property protection.
2. The History of Intellectual Property
(i) The Territorial Period
The different subject areas of intellectual property originate in different places and at different times. Very probably all these laws can be traced back to the system of royal privilege-giving which seems to have operated in most of medieval Europe. The Venetians are credited with the first properly developed patent law in 1474. In England the Statute of Monopolies of 1623 swept away all monopolies except those made by the “true and first inventor” of a “method of manufacture.” Revolutionary France recognized the rights of inventors in 1791 and, outside of Europe, the U.S.A. enacted a patent law in 1790. These patent laws were nothing like today’s complex systems. They were mercifully short, simply recognizing the rights of the inventor. After these beginnings, patent law spread throughout Europe in the first half of the nineteenth century. Statutory forms of trade mark law only make their appearance late in the second half of the nineteenth century, even though trade marks had been in use for much longer. The English courts developed protection for trade marks through the action of passing off. For a variety of reasons, this proved unsatisfactory and statutory systems of trade mark registration began to make their appearance in Europe: England 1862 and 1875, France 1857, Germany 1874 and the U.S.A. 1870 and 1876. Copyright follows a similar kind of pattern, modern copyright law beginning in England with the Statute of Anne of 1709.
The second part of the nineteenth century saw the proliferation in Europe of national intellectual property regimes. It was a period of somewhat chaotic growth with much borrowing and cross-pollination of intellectual property law between states. The principles of patent law to be found in the English Statute of Monopolies were gradually recognized in other states. The English devised the first law on designs in 1787, but they were influenced by the French design law of 1806 when they reformulated their law in 1839. Outside of Europe, intellectual property grew along colonial pathways. So, for example, the self-governing colonies of Australia enacted copyright and patent statutes that were essentially faithful copies of English models.
The territorial period is dominated by the principle of territoriality, the principle that intellectual property rights do not extend beyond the territory of the sovereign which has granted the rights in the first place. The principle is the product of the intimate connections to be found between sovereignty, property rights and territory. It was a principle which courts recognized in the interests of international comity.  A world in which states regularly claimed jurisdiction over the property rights established by other nations would be a world in which the principle of negative comity would have largely vanished. The principle of territoriality meant that an intellectual property law passed by country A did not apply in country B. Intellectual property owners faced a classic free-riding problem, or putting it in another way, some countries were the beneficiaries of positive externalities. Dealing with free-riding and positive externalities led states into the next phase of intellectual property protection: the international period.
(ii) The International Period
During the nineteenth century states began to take a greater and greater interest in the possibility of international co-operation on intellectual property. At first this interest manifested itself in the form of bilateral agreements. In copyright, a French decree of 1852 granting copyright protection to foreign works and foreign authors without the requirement of reciprocity did much to keep bilateral treaty-making in copyright alive. Those states that were worried about the free-riding problem began to negotiate bilateral treaties with other states. Those states that saw themselves as recipients of a positive externality remained isolationist. The United Kingdom (the U.K.) and the U.S.A. provide an example of each response. The U.K. found in the eighteenth century that many of its authors were having their works reproduced abroad without permission and without receiving royalties. Much of the “piracy” was taking place in America, where authors like Dickens were very popular with the American public and therefore American publishers.
The Americans were not the only culprits as the following passage from Hansard (1837) makes clear:
“Every work written by a popular author is almost co-instantaneously reprinted in large numbers both in France, Germany and in America and this is done now with much rapidity, and at little expense . . . All the works of Sir Walter Scott, Lord Byron, Messrs. Robert Southey, Thomas Moore . . . and indeed most popular authors are so reprinted and resold by galignani and bardens at Paris.”
The UK response to this problem was to pass in 1838 and 1844 Acts that protected works first published outside of the UK. These Acts grounded a strategy of reciprocity. Foreign works would only gain protection in the UK if the relevant state agreed to protect UK works. The 1844 Act saw a considerable number of bilateral agreements concluded between the UK and other European states. International copyright policy in the U.S.A. took a different turn to that of the UK. The U.S.A. Copyright Act of 1790 only granted copyright protection to citizens and residents of the U.S.A. This form of national protectionism prevailed in US copyright policy for a surprisingly long period: “For over a hundred years, this nation not only denied copyright protection to published works by foreigners, applying the ‘nationality-of-the-author’ principle, but appeared to encourage the piracy of such works.” In fact, it was not until after the Second World War that the U.S.A. began to exercise real leadership in international copyright. It did so with a boldness that few could have foreseen.
Like copyright, the different parts of industrial property also became the subject of bilateral treaty making, mainly between European states. By 1883 there were 69 international agreements in place, most of them dealing with trade marks. They operated on the basis of the national treatment principle, this principle itself being the outcome of reciprocal adjustment between states. States had come to accept that if they did not discriminate between nationals and foreigners when it came to the regulation of intellectual property rights, neither would other states. In this way states could secure protection for the works of their authors in foreign jurisdictions.
Bilateralism in intellectual property in the nineteenth century was important in that it contributed to the recognition that an international framework for the regulation of intellectual property had to be devised, and it suggested a content in terms of principles for that framework. But this bilateralism was more by way of prelude. The protection it gave authors was never satisfactory. The main movement towards serious international co-operation on intellectual property arrived in the form of two multilateral pillars: the Paris Convention of 1883 and the Berne Convention of 1886. The Paris Convention formed a Union for the protection of industrial property and the Berne Convention formed a Union for the protection of literary and artistic works.
The Paris Convention had its beginnings in some US disgruntlement with a world fair for inventions which was being planned for Vienna in 1873. These world fairs, like the trade fairs of medieval Europe, were important meeting places. The U.S.A., echoing the fears of other countries, suggested that many inventions at the fair would end up benefiting the Austrian public without foreign inventors seeing any returns. The idea of a unified international patent system had been an idea circulating for some time, Prince Albert having raised the possibility of a harmonized patent system at the London World Exposition in 1851. It was a German engineer, Karl Pieper, who managed to persuade the Austrians to hold in 1873 a Congress for Patent Reform. After another Congress in 1880, the Paris Convention of 1883 was opened for signature. Within 25 years most major trading nations had joined the Convention.
The Berne Convention was also a product of meeting places in Europe. The bilateral copyright treaties that states had signed were more often than not just a paper reality. They also produced great complexity. An author wanting to know the extent of his protection in other countries would have had to consult a series of treaties and domestic laws. Influential authors like Victor Hugo, whose reputations and works crossed boundaries, formed the International Literary Association in Paris in 1878. This Association began to hold regular meetings in Europe. At its 1883 meeting in Berne it produced a draft text of an international copyright agreement. The Swiss government was persuaded to organize an international conference using this draft text as a starting point for a multilateral convention on copyright. Berne became the site of intergovernmental conferences in 1884, 1885 and 1886, the year in which the Berne Convention was completed and opened for signature and ratification to the world at large. Like the Paris Convention, the Berne Convention had as its axis the principle of national treatment and a set of minimum rights which states had to recognize.
The Paris and Berne Conventions ushered in the multilateral era of international co-operation in intellectual property. The twentieth century saw the proliferation of international intellectual property regimes. Examples of areas that became the subject of international agreements include trade marks (Madrid Agreement (Marks), 1891 and Madrid Agreement (Indication of Source), 1891), designs (Hague Agreement, 1925), performance (Rome Convention, 1961), plant varieties (International Convention for the Protection of New Varieties of Plants, Acts of 1961 and 1991), patents (Patent Co-operation Treaty, 1970), semiconductor chips (Treaty on Intellectual Property in Respect of Integrated Circuits, 1989). The Paris and Berne Conventions also underwent numerous revisions.
Treaty-making in intellectual property was accompanied by the rise of international organizational forms. The Paris and Berne Conventions saw the creation of international bureaus (secretariats) which were merged in 1893 to form the United International Bureaux for the Protection of Intellectual Property (known by the French acronym of BIRPI). BIRPI was superseded by a new organization, WIPO, which was established by treaty in 1967. WIPO became a specialized agency of the United Nations in 1974.
The international world of intellectual property over which BIRPI and then WIPO presided was a world in which sovereign states had agreed to certain foundational principles, the most important being the principle of national treatment. But by no means was it a world in which there was a harmonization of technical rules. States retained enormous sovereign discretion over intellectual property standard setting. The U.S.A. continued with its ‘first to invent’ patent system while other countries operated with a ‘first to file’ system. Civil code countries recognized the doctrine of moral rights for authors while common law countries did not. Developing countries (and for a long time many developed countries) did not recognize the patenting of chemical compounds. Standards of trade mark registration varied dramatically, even between countries from the same legal family. The law of unfair competition was a projection of local instinct even though the Paris Convention required all member states to protect against it.
Despite the fact that WIPO in 1992 administered 24 multilateral treaties, it presided over an intellectual property world of enormous rule diversity. By 1992 the organization also sensed, perhaps more strongly than anyone, the sea change that was about to take place in the regulation of intellectual property. The General Agreement on Tariffs and Trade (the GATT), across the road from WIPO in Geneva, was about to see to that. WIPO stood by as trade lawyers forced the world of intellectual property into the global era.
(iii) The Global Period
During the international period the harmonization of intellectual property was a painstakingly slow affair. After the Second World War more and more developing countries joined the Paris and Berne Conventions. These conventions ceased to be Western clubs and under the principle of one-vote-one-state, Western states could be outvoted by a coalition of developing countries. Developing countries were not simply content to play the role of a veto coalition. They wanted an international system that catered to their stage of economic development and so, in the eyes of the West at least, they began to throw their weight around. In copyright, led by India, developing countries succeeded in obtaining the adoption of the Stockholm Protocol of 1967. The aim of the Protocol was to give developing countries greater access to copyright materials. Its adoption provoked something of a crisis in international copyright.  The Paris Convention also became the subject of Diplomatic Conferences of Revision in 1980, 1981, 1982 and 1984 with developing countries pushing for more liberal provisions on compulsory licensing.
During the 1960s, India had experienced some of the highest drug prices in the world. Its response was to design its patent law to help to bring about lower drug prices. Under Indian law, patents were granted for processes relating to the production of pharmaceuticals, but not for chemical compounds themselves. When it came to reforming the Paris Convention, countries like India pushed for provisions that would give developing countries more and more access to technology that had been locked up by means of patents. For India this was rational social policy for the educational and health care needs of its citizens. For the U.S.A., it was a case of free-riding. The U.S.A. in particular found itself more and more isolated at meetings relating to the Paris Convention.
The international period was a world in which a lot of free-riding was tolerated. The only enforcement mechanism under the various intellectual property treaties were appeals to the International Court of Justice and most states took reservations on such clauses. No state was in a position to cast the first stone when it came to free-riding. The U.S.A. was not a member of the Berne Convention, but U.S. publishers took advantage of its higher standards of protection ‘through the back door’ method of arranging simultaneous publication in a Berne country like Canada.
Not everybody in the U.S.A. was happy with this laissez faire attitude towards the enforcement of intellectual property rights. For the U.S. film and pharmaceutical industries in particular, intellectual property (copyright for the former, patents for the latter) represented the backbone of their industries. For pharmaceutical companies like Pfizer, intellectual property was an investment issue. They wanted to be able to locate production anywhere in the world safe in the knowledge that their intellectual property would be protected. Within the lobbying networks that had been organized by these global business entities, an idea began to be bounced around between a small group of consultants, lobbyists and lawyers who traveled these networks – that of linking intellectual property to trade. There were two obvious advantages of such a move. First, if a set of intellectual property standards could be made part of a multilateral trade agreement it would give those standards a more or less global coverage. Second, use could be made of the enforcement mechanisms that states had developed for settling trade disputes.
During the 1980s, the U.S.A. reshaped its trade law to give it a series of bilateral enforcement strategies against countries it considered had inadequate levels of intellectual property enforcement or which were weak on the enforcement of such rights. In 1984, the U.S.A. amended its Trade Act of 1974 to include intellectual property in the ‘section 301′ trade process. The 1984 amendment had a sequel in the form of the Omnibus Trade and Competitiveness Act of 1988. This latter Act strengthened the 301 process by adding more processes called ‘Regular 301′, ‘Special 301′ and ‘Super 301.' Essentially these provisions required the Office of the United States Trade Representative to identify problem countries, assess the level of abuse of US intellectual property interests and to enter into negotiations with those countries to remedy the problems. Ultimately, if this proved futile, the U.S.A. could impose trade sanctions. Countries caught up in the 301 process came to learn a simple truth. If they failed to act on intellectual property they would, sooner or later, face retaliatory action from the U.S.A.
At the Ministerial Meeting at Punta del Este in September of 1986, the meeting which launched the Uruguay Round of trade talks, intellectual property was included as a negotiating issue. The U.S.A. had the support of Europe, Canada and Japan for the inclusion of intellectual property in the Round but it was basically a U.S. initiative. It was the U.S.A., more specifically the U.S. business community, which had made all the running on the matter of intellectual property.
On 15 April 1994, the Uruguay Round concluded in Marrakech with the signing of the Final Act Embodying The Results Of The Uruguay Round Of Multilateral Trade Negotiations. More than 100 countries signed the Final Act. It contained a number of agreements including the Agreement Establishing the World Trade Organization and the TRIPS Agreement. The TRIPS Agreement was made binding on all members of the World Trade Organization (WTO). There was no way for a state that wished to become or remain a member of the multilateral trading regime to side-step the TRIPS Agreement.
The TRIPS Agreement marks the beginnings of the global property epoch. The TRIPS Agreement is built on the edifice of the principles of territoriality and national treatment. But it also represents the beginnings of property globalization. Via the trade linkage, the TRIPS Agreement reaches all those states that are members of the multilateral trading system or which, like China, wish to become members. The regional commercial unions that have developed in the last few years have as one of their key objectives the implementation of the TRIPS Agreement. More generally, intellectual property has come to feature strongly in regional arrangements of the 1990s, particularly trade arrangements. The North American Free Trade Agreement (NAFTA) contains extensive provisions on intellectual property. Those provisions in fact served as something of a model for what might be achieved in respect of intellectual property at the multilateral level during the Uruguay Round of negotiations. In a recent survey of the role of intellectual property in regional commercial unions, Blakeney has identified different forms of co-operation and convergence on intellectual property law taking place amongst the states of the Central European Free Trade Agreement, the Association of South East Asian Nations, the Mekong River Basin Countries and the Asia Pacific Economic Co-operation Forum.
In the past states have been able to steer their way through the international intellectual property framework by taking reservations on clauses in treaties or by not ratifying certain protocols or conventions. All of the TRIPS Agreement is binding on all members of the WTO. The TRIPS Agreement incorporates various other intellectual property conventions by reference. States, therefore, have to implement a common and enlarged set of intellectual property standards, standards that become common to more states by virtue of their participation in regional and multilateral trade regimes. More and more standards are becoming mandatory rather than permissive for states. States, for example, have less discretion to determine what can be patentable and what cannot.
The post-TRIPS era has been a period in which countries have had to engage in the task of national implementation of their obligations under the TRIPS Agreement. Least-developed countries have the advantage of a ten year transitional period under the agreement, but they have been under pressure from developed countries to move sooner rather than later on its implementation. The TRIPS Agreement operates under an institutional arrangement designed to promote compliance. The WTO Agreement establishes a Council for TRIPS, which is required to monitor members’ compliance with their obligations under the agreement. The practice which seems to be developing is that states like the U.S.A. and Europe are asking other states to explain their intellectual property laws and whether they comply with the TRIPS Agreement. The monitoring by the Council for TRIPS, the active interest of the U.S.A. and Europe in the enforcement of intellectual property obligations, and the fact that disputes under the TRIPS Agreement can be made the subject of proceedings under the dispute resolution mechanism of the Final Act, mean that obligations of the TRIPS Agreement will over time become a living legal reality for states rather than suffering the fate of so many conventions, that of remaining paper rules.
The post-TRIPS period has also seen multilateral treaty-making in intellectual property continue. On December 20, 1996, under the auspices of WIPO, the WIPO Performances and Phonograms Treaty and the WIPO Copyright Treaty were concluded. The U.S.A. was one of the main agitators for a new international instrument to deal with the entry of copyright into the digital age. As part of its National Information Infrastructure Initiative in 1993, the U.S.A. had established a working group on intellectual property rights. This working group recommended in a report in 1995 that the distribution right of copyright owners be clarified to include transmission, and that the law prohibit the circumvention of copyright protection systems. The U.S.A. sought to globalize this copyright owner’s agenda by pushing for the inclusion of some new form of communication right in an international instrument. The negotiating history of these two treaties is significant in that copyright owners met with organized resistance from copyright users. The U.S.A. consumer movement, for instance, was particularly active in successful opposition to the proposed database treaty. Copyright owners had both wins and losses at these negotiations. The Copyright Treaty grants copyright owners a right of communication to the public, but recognizes the right of states to determine the extent of the copyright owner’s right of distribution.
All this suggests that future multilateral treaty-making in intellectual property will be a complex game fought out between user and owner groups, groups whose membership transcends national boundaries. Library groups, educational institutions, internet service providers and developers of software applications are likely to unite to oppose large software companies and publishers on matters of copyright reform. Indigenous peoples non-governmental organizations (NGO’s), and environmental NGO’s are likely to unite to fight the extension of the patent system to higher order life forms. Intellectual property policy has become a highly politicized arena in which state and non-state actors will continue to contest not just the rules of intellectual property, but also the roles of markets and government. Triumphs of the scale of the TRIPS Agreement may in the future be much harder to secure.
The TRIPS Agreement is but one part of a much deeper phenomenon in which intellectual property is playing a crucial role – the regulatory globalization of the norms of contract and property. Property law constitutes the objects of property; contract enables the exchange of those objects. Through contract the objects of property become tradeable capital. Together these norms constitute markets. This is a phenomenon we shall come back to in the last section of the paper.
An illustration of this phenomenon is the link between intellectual property and investment. The international regulation of investment for most of its history has occurred bilaterally. States over the years have created a web of bilateral investment treaties. Intellectual property, like any other asset, can be made the subject of a treaty. One aspiration in the Uruguay Trade Round, held mainly by international business, was that the Round would deliver a comprehensive multilateral agreement on investment that would free business from the restrictions on investment that w
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