Introduction to Intellectual Property

This chapter will explain the rationale for copyright law, what it is and the international context.

What is Intellectual Property?

Intellectual property law, particularly copyright law, is thought to have a predominantly instrumental function: it provides authors and publishers with certain incentives in order to encourage the creation of new expression. It does this by granting authors and artists control over certain uses of their creations for certain periods of time, limiting who may copy, change, perform, or share those creations.

There are several views concerning the purpose of IP law. One view is that intellectual property encourages creativity by allowing creators to profit from their work. This view is reflected in the wording of many copyright laws. For example, the “Copyright Clause” of the United States Constitution states that Congress may grant authors copyright protection for their works for a limited time in order to “promote the progress of science and useful arts.” (US Constitution, Article 1, Section 8, Clause 8.) Similarly, the stated purpose of the Statute of Anne, the first copyright statute in England, was to “encourage learning.” (8 Anne Chapter 19 (1710).) Another view is that IP law ensures that authors are paid fairly for their effort. A third view suggests that a creative work is an expression of the personality of its creator and should be protected from being used without the creator's permission.

Although IP law grants authors many rights in their works, it also limits these rights in many important ways. Most of these limitations are quite specific, but a few are broad. These limits are important in order to ensure that copyright law is balanced - that the monopoly it grants does not place excessive limitations on the public's freedom to learn, express themselves and build upon existing cultural works.

The Economic (Utilitarian) Justification

The utilitarian view starts from the position that expression is a “public good” and that creators therefore cannot prevent others from using their expression without legal intervention. This idea is supported by the unique “non-rival” nature of expression as a intangible good - that is - one person's use does not diminish or interefere with the use by another. However, the inability to exclude others may present problems for creators and the production of public goods. If a creator of a public good is unable to exclude others from using it, she or he will be unlikely to recoup the time and/or monetary investment in creating it. This may cause creators, publishers, record labels or movie studios to stop spending resources on cultural production because they cannot profit from it. Intellectual Property seeks to prevent this from happening by making expression excludable in order to allow producers to commercialise their creations and recover their costs. Copyright law does this by providing a set of “exclusive rights” to authors and producers to prevent others from copying or republishing.

In order to make the production of public goods more profitable, IP makes access more expensive. The law must then strike a delicate balance between encouraging the creation and dissemination of works by providing incentives and recognising the public interest in greater access to expression. The law must also recognise the needs of future authors that often build upon the past expression. Because of this the stronger IP protection is, the more expensive future production becomes.

The Natural Rights Justification

While the natural rights view is not explicitly recognised and often even disclaimed, intellectual property is also supported by a justification that authors deserve property rights in their expression. This view is based in a Lockean argument that authors deserve property in the fruits of their labour. However this view has been challenged strongly by prominent figures such as Thomas Jefferson:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature."

Or Benjamin Kaplan:

"[I]f man has any 'natural' rights, not the least must be a right to imitate his fellows, and thus to reap where he has not sown."

International Context

International Agreements

Intellectual proeprty law has been relatively harmonised worldwide:

  • Berne Convention for the Protection of Literary and Artistic Works
  • Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
  • World Intellectual Property Organisation (WIPO) Performances and Phonograms Treaty
  • WIPO Copyright Treaty

IP law continues to change amid a rapidly increasing web of bilateral and pluilateral trade agreements.

  • Australia-United States Free Trade Agreement (AUSFTA)
  • Korea-Australia Free Trade Agreement (KAFTA)
  • Japan-Australia Economic Partnership Agreement (JAEPA)
  • China-Australia Free Trade Agreement (CHAFTA)
  • Anti-Counterfeiting Trade Agreement (ACTA)
  • Trans-Pacific Partnership (TPP)
  • Trans-Atlantic Trade and Investment Partnership (TTIP)
  • Trade in Services Agreement (TISA)

In addition, there have been disputes involving intellectual property and investor rights in investment arbitration clauses under agreements with investor-state dispute settlement clauses (ISDS)