Differences

This shows you the differences between two versions of the page.

Link to this comparison view

Both sides previous revision Previous revision
Next revision
Previous revision
ausip:intro-ip [2019/01/09 02:56]
nic
ausip:intro-ip [2019/03/08 10:20] (current)
jessiej_87
Line 1: Line 1:
 # Introduction to Intellectual Property # 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.+This chapter will explain what intellectual property law is, the areas of law covered, the rationale for intellectual property law and the international context.
  
  
Line 16: Line 16:
  
  
-**Video overview by Nic Suzor on [Intellectual Property Law](youtube>eOiHqDYhaF4).**+**Video overview by Nic Suzor on [Intellectual Property Law](https://​www.youtube.com/​watch?​v=eOiHqDYhaF4)**
  
   ​   ​
-Intellectual property law, and especially copyright and patent 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. +Intellectual property law, and especially copyright and patent 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 specified ​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". ((//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 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. 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". ((//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 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.
Line 30: Line 30:
 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"​. ((//US Constitution,​ Article 1, Section 8, Clause 8//)) 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"​. ((//US Constitution,​ Article 1, Section 8, Clause 8//))
  
-**Video overview of [The Utilitarian Justification for Intellectual Property](youtube>KVpYFZ-FBdk).**+**Video overview of [The Utilitarian Justification for Intellectual Property](https://​www.youtube.com/​watch?​v=KVpYFZ-FBdk).**
  
  
-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. ​+The utilitarian ​perspective of intellectual property stems from the idea 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 studiosto 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. ​ 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](youtube>jpOe9VRYKJ8).**+**Video overview of [The IP Balance](https://​www.youtube.com/​watch?​v=jpOe9VRYKJ8).**
  
 ### The Natural Rights Justification ### 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: ​+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. Howeverthis 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"​. >"​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"​.
Line 60: Line 60:
 | 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.| ​ | 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//​).| ​ | 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.| ​+| 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 United Nations ​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.| ​ | 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.| | 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.|
Line 66: Line 66:
 | 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.| ​ | 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.| ​ | 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.|  +| 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 ​| The //​Trans-Pacific Partnership Agreement//// (//TPP//) was negotiated between twelve countries that border the Pacific Ocean: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. These countries represent approximately 40% of the world'​s economic output, making the TPP the largest trade agreement in history. However before negotiations were finalised, on 23 January 2017, when US President Donald Trump took office, he signed a presidential memorandum to withdraw the United States from //TPP// negotiations. While other TPP countries, including Australia, have stated that they plan to continue //TPP// negotiations,​ the future of the agreement looks uncertain without US involvement.|+| 2013 and beyond ​| The Trans-Pacific Partnership Agreement | The //​Trans-Pacific Partnership Agreement// (//TPP//) was negotiated between twelve countries that border the Pacific Ocean: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. These countries represent approximately 40% of the world'​s economic output, making the //TPP// the largest trade agreement in history. Howeverbefore negotiations were finalised, on 23 January 2017, when US President Donald Trump took office, he signed a presidential memorandum to withdraw the United States from //TPP// negotiations. While other //TPP// countries, including Australia, have stated that they plan to continue //TPP// negotiations,​ the future of the agreement looks uncertain without US involvement.|
  
- +Intellectual property law has been relatively harmonised worldwide. There are a number of agreements regarding intellectual property law in general, and more specific agreements that apply to certain areas of intellectual property. The [World Intellectual Property Organisation](https://​www.wipo.int/​about-wipo/​en/​) ​(WIPO) is an international agency, established in 1967 which administers treaties such as the //Paris Convention on the Protection of Industrial Property 1883// and the //Berne Convention for the Protection of Literary and Artistic Works 1886//, //WIPO Performances and Phonograms Treaty// and //WIPO Copyright Treaty//. It is WIPO's obligation to administer intellectual property matters and there are approximately 22 intellectual property treaties under its administration. Whilst WIPO administers the treaties, it does not have the requisite power to ensure compliance of the treaties. As a result of this, the //World Trade Organisation Agreement// was enacted, specifically the part that deals with intellectual property, the //Trade Related Aspects of Intellectual Property Rights 1994// (//​TRIPS//​).
- +
- +
- +
- +
- +
-  +
- +
- +
- +
-  +
- +
- +
- +
- +
-Intellectual property law has been relatively harmonised worldwide. There are a number of agreements regarding intellectual property law in general, and more specific agreements that apply to certain areas of intellectual property. The World Intellectual Property Organisation (WIPO) is an international agency, established in 1967 which administers treaties such as the //Paris Convention on the Protection of Industrial Property 1883// and the //Berne Convention for the Protection of Literary and Artistic Works 1886//, //WIPO Performances and Phonograms Treaty// and //WIPO Copyright Treaty//. It is WIPO's obligation to administer intellectual property matters and there are approximately 22 intellectual property treaties under its administration. Whilst WIPO administers the treaties, it does not have the requisite power to ensure compliance of the treaties. As a result of this, the //World Trade Organisation Agreement// was enacted, specifically the part that deals with intellectual property, the //Trade Related Aspects of Intellectual Property Rights 1994// (//​TRIPS//​).+
  
 //TRIPS// is an international agreement which identifies 5 minimum standards for intellectual property that all members of the WTO must adhere to. Further, each WTO member is required by //TRIPS// to enforce these standards. //TRIPS// is an international agreement which identifies 5 minimum standards for intellectual property that all members of the WTO must adhere to. Further, each WTO member is required by //TRIPS// to enforce these standards.
Line 106: Line 91:
 - //Trade in Services Agreement// (//TISA//) - //Trade in Services Agreement// (//TISA//)
  
-One controversial aspect of trade agreements is the use of investor-state dispute settlement (ISDS) clauses. In the case of many treaties, if there is a dispute between the parties, //TRIPS// can be used to enforce the standards of trade. However in instances where an ISDS is included in contracts, individual investors can bring arbitration proceeding against a nation. This process can be very costly and may involve significant delay. ​ +One controversial aspect of trade agreements is the use of investor-state dispute settlement (ISDS) clauses. In the case of many treaties, if there is a dispute between the parties, //TRIPS// can be used to enforce the standards of trade. Howeverin instances where an ISDS is included in contracts, individual investors can bring arbitration proceeding against a nation. This process can be very costly and may involve significant delay. ​
-    ​+
     ​     ​
 +
 +
  
  
  • ausip/intro-ip.1546962964.txt.gz
  • Last modified: 2 months ago
  • by nic