Advanced Intellectual Property Law

This essay explores the concept of Intellectual Property Rights (IPR) and their value in the present scenario. It discusses the types of IPRs, their advantages and disadvantages, and the need for experimenting with new intellectual property models. The essay also highlights the importance of enforcing IPRs and the challenges faced by developing countries in adapting to the universal set of comparatively high IP norms.

Advanced Intellectual Property Law
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Table of Contents
Introduction................................................................................................................................3
Discussion..................................................................................................................................3
Conclusion..................................................................................................................................8
References..................................................................................................................................8
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Introduction
Intellectual Property Rights (IPR) is considered as the rights associated with the creativity of
the humans. An individual is said to have been creating intellectual property when he or she
invent a product, creates something, writes a program, lyrics and such other things. The IPR
law enables the creator of a property to get benefitted economically out of their creation.1 The
World Intellectual Property Organization (WIPO) recognizes the legal rights of the creator
over their work.2 The IPR applies on literary, scientific and artistic work, artistic
performances, phonograms, scientific discoveries, trademarks, protection against inequitable
competitions and various other rights arising through intellectual efforts. The IP laws are
considered as beneficial for every country; however, these laws are public goods and must be
managed in a prudent manner. On the debates over existence of intellectual property, the
discussion has taken two forms which are deontological as well as consequentialist. The
deontological justification for intellectual property considers rights on intellectual property as
natural rights. The consequentialist justifications regarding IP consider relationship between
IP and creativity as local and contingent instead of essential and universal. In this essay, the
intellectual property rights will be explored as a concept as well as the value of the
intellectual property in the present scenario will be analyzed critically in developing as well
as developed world.
Discussion
IPRs are of various types which include Copyrights, Patents and Trademarks. The Copyright
is considered as the subject matter for national legislations under which, term of protection,
1 Hussain, Advantages and Disadvantages of Intellectual Property Rights (2013) Safehiring.wordpress.com
<https://safehiring.wordpress.com/2013/03/16/advantages-and-disadvantages-of-intellectual-property-rights/>.
2 UpCounsel, Advantages and Disadvantages of Intellectual Property: Everything to Know (2018)
<https://www.upcounsel.com/advantages-and-disadvantages-of-intellectual-property>.
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requirement of registration, rights linked to copyright and term of copyright are addressed.3
Patents are considered as the special rights given by a sovereign state to an inventor and these
rights are granted for limited period of time and in general extend for about 20 years. The
patents protect inventions such as products or processes, however, inventions should meet the
conditions for patentability. The criteria for obtaining patent on a work require novelty, non-
obviousness and utility or industrial application. Trademark is considered as a recognizable
sign, symbol, design or expression used for identifying and differentiating one product or
service derived from a particular source against another. The trademarks can be visible on
packaging, labels, company’s merchandise, advertisements and many more. The trademark
holder can utilize benefits of rights associated with trademarks and, such rights can be
enforced in the case of trademark infringement.4 The purpose of trademark law is to ensure
consumer protection because it ensures that the public are being given correct information
regarding the origin or quality of a product or service.
There are various other types of IPs as well such as trade dress, trade secrets, geographical
indicators, and traditional knowledge. The enforcement of intellectual property rights is
important because by protecting the intellectual property, it becomes easier to speed up legal
proceedings in a case of stealing or imitating the IP, which is known as infringement. It
provides automatic rights to the intellectual property such as copyright to all types of literary
works, web content and sound recordings.5 There are few types of IPRs, that are required to
be applied for, which include trademarks, registered designs, and patents. As registered
trademarks protect a brand, it provides rights to take legal action against counterfeiters. The
3 NIBusinessInfo, Advantages of Protecting Intellectual Property (2018) Nibusinessinfo.co.uk
<https://www.nibusinessinfo.co.uk/content/advantages-protecting-intellectual-property>.
4 Andrew Beckerman-Rodau, "The Problem with Intellectual Property Rights: Subject Matter Expansion"
(2018) 13(1) Yale Journal of Law and Technology<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?
referer=https://scholar.google.co.in/&httpsredir=1&article=1064&context=yjolt>.
5 J. H. Reichman, "Intellectual Property: Does IP Harm Or Help Developing Countries?" (2007)
2007(1) Journal of Law, Technology & Policy <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=2569&context=faculty_scholarship>.
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trademark symbol is used by the trademark holder to warn others not to use it and all the
rights to sell and license the trademark to the others remains with the trademark holder.
As stated before, IP laws are public goods that need to be utilized wisely, for example,
copyright laws that promote music industry, can also make access to literary as well as
scientific knowledge, which becomes unaffordable if not managed properly.6 However, the
process has become more complicated now, because by investigating industrial property, it
can be assured that trade secret laws, trademark laws, unfair competition laws and such others
provide benefits to all the countries and, innovation is impossible without them. For instance,
patent laws could make the developing countries able to import updated and technologically
advanced products that might not be made available otherwise. Similarly, IPRs could be
harmful when the foreign sellers impose terms that destabilizes the ability of the
entrepreneurs of a country to compete in the global marketplace. The developing countries
require reverse engineering knowledge about the non-patentable products in order to add
value by adapting international goods to the local conditions. These countries have to
compete in markets for knowledge goods on similar normative terms and conditions that
regulate the developed industrialized countries. All these countries have to struggle and face
enormous challenges and financial and other burdens imposed by universal set of
comparatively high IP norms. Furthermore, even such developing countries that avoid
innovation system must have to involve with the social costs of intellectual property norms in
the form of defensive measures as well as, they want to provide other public goods
continuously.7 They have the pressure to adapt to these flexibilities with varying success
levels.
6 UNESCO, "Intellectual Property Rights" (2015)
<http://unesdoc.unesco.org/images/0023/002322/232208E.pdf>.
7 The British Library, What Are Intellectual Property Rights? (2017) <https://www.bl.uk/business-and-ip-
centre/articles/what-are-intellectual-property-rights>.
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There are various other issues as well and it would be beneficial if the pressure on the
developing countries for higher levels of IP protection eases. When developing countries
choose production of knowledge goods for local consumption or other essential purposes,
they have to face actual challenges such as have to maintain balance incentives for their
industries without any discrimination against the foreigners because of requirement of
national treatment. The political pressure also increases as the companies need to be careful
about the public health and education issues.8 So, the economically vibrant developing
countries are required to resolve issues related to the standardization of TRIPS- amenable
domestic norms in order to encourage innovation and regulating similar set of norms to
provide access to knowledge and medicines within affordable terms and conditions, which is
actually a difficult process.
There are various merits and demerits of intellectual property which requires businesses to be
aware of. The advantages of IP include no fees associated with IP if one needs to enhance or
change the invention particularly when, it is not formally protected. Having patent protection
over the intellectual property enhances the ability to have competitive edge over other similar
businesses because other businesses operating in similar industry cannot copy, use,
manufacture, or sell the product. Through intellectual property protection, more income can
be generated by a business through licensing agreements or sale of the invention because, IP
enhances the value of the company and helps in marketing its products and services.9 With
intellectual property protection, the finances for the business can easily be obtained from
lenders and financial institutions because such protection enhances the credibility of the
business or a company. The business could have greater export opportunities because IP can
8 Business Valuation Resources, What Are The Advantages And Disadvantages Of Patents, Copyrights,
Trademarks, And Trade Secrets? | Business Valuation Resources (2018) Bvresources.com
<https://www.bvresources.com/blogs/intellectual-property-news/2018/03/12/what-are-the-advantages-and-
disadvantages-of-patents-copyrights-trademarks-and-trade-secrets>.
9 UpCounsel, What Is Disadvantages Of Intellectual Property Rights? (2018)
<https://www.upcounsel.com/disadvantages-of-intellectual-property-rights>.
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increase competitive edge in the export markets, thus, designs can be used to market goods in
the international market. It requires entering into franchising agreements with international
businesses located in countries where to perform business or export the patented products. It
can help in increasing the profits considerably by approaching international market across
various countries.
In a similar manner, there are various disadvantages associated with IPR as well. It includes
additional costs, pirating and reduction in quality. To protect the intellectual property could
be very costly, particularly in case of complicated products that involves deigns, methods and
variety of processes. It requires filing of several patent applications in order to protect a
product. Furthermore, hiring a legal officer to assist in the processes of application also needs
higher amount of fees along with filing fees and other associated costs. Taking into
consideration, the highly required intellectual property, it becomes difficult to restrain the
consumers from taking such intellectual property and the attempts made to enforce IPRs
could reduce the customer base of the company.10 Along with it, with the reduction of the
intellectual property rights, the quality of the product that has been created also reduces, that
is why, there is much less of an encouragement to perform work and to put time and
resources particularly, when the company is already aware that its IPRs are not absolute.11
Conclusion
After analysing the position of IPRs in the present scenario, it can be concluded that there is
need of experimenting new intellectual property models, which include those relying on open
source solutions as well as strategic use of liability rules because these rulers can alleviate
market failures without hindering follow-on innovation, without creating entry barriers and
10 European Space Agency, What Is Intellectual Property? (2018) Esa.int
<https://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/What_is_intellectual_property>.
11 WTO, What Are Intellectual Property Rights? (2018) Wto.org
<https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm>.
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creating blocking effects. Furthermore, developing countries are required to formulate
suitable competition laws, policies as well as rules and they should experiment different
approaches to encourage and broadcast innovation in their own regional as well as national
systems of innovation. Therefore, it can be taken into consideration that despite few of the
disadvantages of IPRs, these rights on property should exist as they have been proved
beneficial for all the countries whether developing or developed.12 The IPRs provide rights on
the creations and violating or infringing such rights are punishable, which provides total
rights to the creator of the property. However, it requires knowledge about the utilization of
IPRs so that all can avail all the benefits provided under IPRs.
References
Beckerman-Rodau, Andrew, "The Problem with Intellectual Property Rights: Subject Matter
Expansion" (2018) 13(1) Yale Journal of Law and Technology
<https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://
scholar.google.co.in/&httpsredir=1&article=1064&context=yjolt>
Reichman, J. H., "Intellectual Property: Does IP Harm Or Help Developing Countries?"
(2007) 2007(1) Journal of Law, Technology & Policy
<https://scholarship.law.duke.edu/cgi/viewcontent.cgi?
article=2569&context=faculty_scholarship>
Business Valuation Resources, What Are The Advantages And Disadvantages Of Patents,
Copyrights, Trademarks, And Trade Secrets? | Business Valuation Resources (2018)
Bvresources.com
<https://www.bvresources.com/blogs/intellectual-property-news/2018/03/12/what-are-
the-advantages-and-disadvantages-of-patents-copyrights-trademarks-and-trade-secrets>
12 WIPO, What Is Intellectual Property? (2018) Wipo.int
<http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf>.
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European Space Agency, What Is Intellectual Property? (2018) Esa.int
<https://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/
What_is_intellectual_property>
Hussain, Advantages and Disadvantages of Intellectual Property Rights (2013)
Safehiring.wordpress.com <https://safehiring.wordpress.com/2013/03/16/advantages-
and-disadvantages-of-intellectual-property-rights/>
NIBusinessInfo, Advantages of Protecting Intellectual Property (2018) Nibusinessinfo.co.uk
<https://www.nibusinessinfo.co.uk/content/advantages-protecting-intellectual-property>
The British Library, What Are Intellectual Property Rights? (2017)
<https://www.bl.uk/business-and-ip-centre/articles/what-are-intellectual-property-rights>
UNESCO, Intellectual Property Rights (2018) Unesdoc.unesco.org
<http://unesdoc.unesco.org/images/0023/002322/232208E.pdf>
UpCounsel, Advantages and Disadvantages of Intellectual Property: Everything to Know
(2018) <https://www.upcounsel.com/advantages-and-disadvantages-of-intellectual-
property>
UpCounsel, What Is Disadvantages Of Intellectual Property Rights? (2018)
<https://www.upcounsel.com/disadvantages-of-intellectual-property-rights>
WIPO, What Is Intellectual Property? (2018) Wipo.int
<http://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf>
WTO, What Are Intellectual Property Rights? (2018) Wto.org
<https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm>
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