Introduction to Intellectual Property

This chapter will explain what intellectual property law is, the areas of law, the rationale for intellectual property law and and the international context.

Intellectual property is the title given to a class of exclusive rights over intangible creations. There are a variety of different areas of law within intellectual property law with the most common being copyright, trade marks, industrial designs and patent law. There are also sui generis laws, which include rights such as plant breeders rights, design circuits and geographical indicators. The table below sets out the key Australian statutes for intellectual property law.

Intellectual Property Area Rights Source of Law in Australia
Copyright to reproduce, copy, publish and make available works Copyright Act 1968 (Cth)
Trade marks to use words, signs, symbols, sounds and smells to identify your goods and services in trade Trade Marks Act 1995 (Cth)
Patents to commercially exploit an invention Patent Act 1990 (Cth)
Design to apply a shape or pattern to a creation Design Act 2003 (Cth)

Video overview by Nic Suzor on Intellectual Property Law.

Intellectual property law, particularly copyright law, is thought to have a predominantly instrumental function: it provides creators of new work (whether it is inventors of patents or authors and publishers alike), with certain incentives in order to encourage the creation of new expression. It does this by granting creators control over certain uses of their creations for certain periods of time, limiting who may exploit, or make use of the creations. Each specific area of intellectual property law confers exclusive rights to the creator or owner. The exclusive rights vary between the types of intellectual property law, however, the concept of exclusive use of the creations remains the same.

There are several views concerning the purpose of intellectual property law. One view is that intellectual property encourages creativity and innovation by allowing creators to profit from their work. This view is most notable in the area of copyright and 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”. 1) Similarly, the stated purpose of the Statute of Anne, the first copyright statute in England, was to “encourage learning”. 2) Another view is that intellectual property law ensures that creators 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 intellectual property law grants creators many exclusive rights, 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 law is balanced - that the monopoly granted by intellectual property's exclusive rights 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 most common justifications for intellectual property is the utilitarian justification. According to the US Constitution, intellectual property law exists, “[t]o promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries“. 3)

Video overview of The Utilitarian Justification for Intellectual Property.

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 an intangible good - that is - one person's use does not diminish or interfere 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, or those funding creation such as 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. Intellectual property law does this by providing a set of “exclusive rights” to creators and inventors.

In order to make the production of public goods more profitable, intellectual property 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 who often build upon the past expression. Because of this, the stronger intellectual property protection is, the more expensive future production becomes.

Video overview of The IP Balance.

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".

The natural rights justification is still contested today.

Intellectual property was not always central to international trade. As technology and trade developed so did the need to incorporate intellectual property into trade agreements and ensure there were international standards for dealing with intellectual property related matters when engaging in international trade. Below is a short timeline of the history of international intellectual property regulation. The timeline outlines when intellectual property and trade became intertwined.

Year Agreement Effect
1873 The impetus for international protection Creators refused to attend the International Exhibition of Inventions in Vienna, Austria, because they were afraid their ideas would be stolen and exploited in other countries.
1883 The Paris Convention The Paris Convention for the Protection of Intellectual Property is the first major international treaty designed to help the people of one country obtain intellectual property protection in another country. It applies mainly to patents, but also covers trade marks and industrial designs. It was first agreed on in 20 March 1883. It has now been incorporated into the TRIPS Agreement.
1886 The Berne Convention The Berne Convention for the Protection of Literary and Artistic Works aims to give creators the right to control and receive payment for their creative works on an international level. This agreement applies to copyright.
1893 BIRPI is established The United International Bureaux for the Protection of Intellectual Property (BIRPI) was an international organisation set up in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property. The BIRPI is the predecessor of the World Intellectual Property Organisation (WIPO).
1947 - 1949 General Agreement on Tariffs and Trade (GATT) In 1947, the General Agreement on Tariffs and Trade (GATT) is signed, following decades of economic instability with the Great Depression and World War II. The Agreement was negotiated during the UN Conference on Trade and Employment and was the outcome of the failure of negotiating governments to create the International Trade Organisation (ITO). The idea behind GATT was to set up basic trade rules and reduce tariffs between countries.
1970; 1974 The World Intellectual Property Organisation (WIPO) The Convention establishing the World Intellectual Property Organisation (WIPO) comes into force (on 26 April 1970) and BIRPI is thus transformed to become WIPO. The newly established WIPO is a member state-led, intergovernmental organisation, with its headquarters in Geneva, Switzerland. WIPO has two main purposes: (1) to provide legal and technical assistance, particularly to developing countries, to develop IP regimes; and (2) to administer the multilateral IP agreements.
1986 - 1994 The Uruguay Round The Uruguay Round was a round of multilateral trade negotiations conducted within the framework of the GATT. The round began in 1986, but negotiations stalled in 1991 when the US refused to agree to anything unless intellectual property was included within the negotiations. The Uruguay Round concluded in 1994 with the signing of the Marrakesh Agreement, which established the WTO. Members also agreed to the Dispute Settlement Understanding (DSU), which is annexed to the Marrakesh Agreement.
1995 World Trade Organisation (WTO) The WTO comes into effect on 1 January 1995, replacing the GATT system. This is widely regarded as the most profound institutional reform of the world trading system since the GATT was established.
1995 TRIPS The Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) is an international legal agreement between all the member nations of the WTO. It sets down minimum standards for the protection of intellectual property.
2001 The Doha Declaration The Doha Development Round commences in 2001. The Doha Declaration on the TRIPS Agreement and Public Health is adopted by the WTO Ministerial Conference on 14 November 2001.
2004/2005 Australia-US Free Trade Agreement (AUSFTA) On 18 May 2004, the Australia – United States Free Trade Agreement (AUSFTA) is signed. This is a preferential trade agreement between Australia and the United States modelled on the North American Free Trade Agreement (NAFTA). The Agreement came into effect on 1 January 2005.
2013 onwards The Trans-Pacific Partnership Agreement and beyond

1) , 3)
US Constitution, Article 1, Section 8, Clause 8
8 Anne Chapter 19 (1710)
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