Originality Monopoly and IP Law

Intellectual Property Rights

Question 1

Copyright is arguably all about originality, whether one looks at it from a civil law or from a common law perspective. How is that assessment to be reconciled with the fact that the word “originality” does not appear in the Berne Convention? Discuss.

Copyright law is concerned with the protection of original works of authorship. In the United States, copyright law is enshrined in the Constitution, which gives Congress the power to “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, 2022). Under U.S. copyright law, a work is considered original if it is the product of an individual author's independent creative effort. This requirement of originality is different from that of other countries, which generally protect any work that is not a mere copy of another work. Nonetheless, the level of originality required for copyright protection in the United States is relatively low; even a small amount of creativity will suffice. From a civil law perspective, copyright protection encourages creativity by giving authors financial incentive to create new works. From a common law perspective, copyright protection is seen as a way to foster competition by giving authors exclusive rights to their works and preventing others from free riding on their labor. Thus, both perspectives recognize that originality is at the heart of copyright law.

The Berne Convention for the Protection of Literary and Artistic Works is an international agreement that was first drafted in 1886. Article 2 of the convention states that “the author shall enjoy the exclusive right of making copies of his work”. This right is typically known as the “copyright” (Abdollahi et al., 2021). Still, many people believe that copyright is all about originality, even though the word “originality” does not appear in the Berne Convention. This belief may be excusable considering that the convention was drafted before the concept of originality became widely accepted in copyright law. Nevertheless, it is still possible to argue that copyright is all about originality, both from a civil law perspective and from a common law perspective.

From a civil law perspective, copyright is about originality because it protects works that are deemed to be “original”. In order for a work to be protected by copyright, it must be shown to be original. This means that it must be the result of creative effort and not simply a copy of another work. The concept of originality is thus central to civil copyright law. It is implicit or inherent in the overall idea. So even if the word is not found din the Berne Convention, the idea is nonetheless inherent, implied, and essential to the meaning of Article 2.

From a common law perspective, copyright is also about originality. In common law countries, copyright is typically seen as a property right that gives the owner of the copyright the exclusive right to exploit their work. In order for someone to have a valid property right in their work, it must be shown to be original. This means that, similar to civil law, the concept of originality is central to common law copyright.

Thus, while the word “originality” does not appear in the Berne Convention, it is still possible to argue that copyright is all about originality. This is because the concept of originality is central to both civil law and common law approaches to copyright. It is not explicitly stated because such explicit definition was not thought of or necessarily needed at the time. However, the concept is implicit within the article.

Question 2

Intellectual property rights provide exclusivity and there is therefore, an element of a monopoly in them. How can that be reconciled with the fact that they are created by legislature with the aim of enhancing competition? Discuss.

Intellectual property rights are a type of legal monopoly. By definition, a monopoly is when a firm has complete control over a good or service. When it comes to intellectual property, the owner has the exclusive right to make use of or sell the protected item. This exclusivity can be an important tool in ensuring that the owner gets a return on their investment. For example, if someone invents a new type of widget, they will want to be able to sell it without competition in order to make a profit. In this way, intellectual property rights provide an incentive for innovation by giving inventors a temporary monopoly on their invention. However, these rights are not unlimited and must eventually expire in order for others to be able to enter the market. This helps to ensure that monopolies do not become too powerful and stifle competition. overall, intellectual property rights provide both benefits and drawbacks depending on how they are used.

For that reason, it could easily be argued that intellectual property rights provide their holders with a monopoly on the use of the protected intellectual property. This is because intellectual property rights are granted by legislatures, and are thus subject to the laws of each jurisdiction. However, this view fails to take into account the fact that intellectual property rights are also subject to international treaties and conventions, which promote competition and restrict the monopolistic tendencies of intellectual property rights. For example, the World Trade Organization’s TRIPS Agreement requires members to grant patents for inventions, but also imposes limitations on the duration and scope of those patents (Igbowke & Tosato, 2022). As a result, while intellectual property rights may provide their holders with some degree of exclusivity, they are also subject to limitations that promote competition.

That said, ostensibly the purpose of intellectual property law is to encourage innovation by providing incentives for inventors and creators to disclose their new ideas to the public. By granting exclusive rights to inventors and creators, intellectual property law allows them to recoup their investment in time and resources, and also provides an incentive for others to invest in further innovation. In this way, intellectual property law enhances competition by encouraging innovation. Additionally, intellectual property law helps to ensure that ideas are widely disseminated and used, rather than being locked away and forgotten. This is because exclusive rights granted by intellectual property law are limited in scope and duration, after which the ideas enter the public domain and can be used by anyone. As a result, intellectual property law provides a balance between encouraging innovation and ensuring that ideas are widely used.

The problem is this: IP law does open the door to the creation of monopolies on ideas (Martin-Bariteau, 2019). For example, pharmaceutical companies often obtain patents on new drugs, preventing other companies from producing generic versions. As a result, consumers may be forced to pay higher prices for these drugs, even after the patent expires. In some cases, these monopolies can last for decades, preventing others from benefiting from these life-saving innovations. Similarly, businesses may obtain patents on important technologies, preventing competitors from using or improving upon these ideas. This can limit consumer choice and prevent innovative new products from entering the market. While IP rights are essential for protecting creators, it is important to ensure that these rights are not used to unlawfully stifle competition.

Question 3

“Trademarks obviously safeguard a vital interest of the trader/right holder, but they can only do that if they also play their essential role for the consumer/end user.” Discuss.

Trademarks are essential tools for businesses in the modern world. They allow companies to distinguish their products from those of their competitors, and they provide valuable legal protections for businesses that invest heavily in developing a strong brand. However, trademarks can only fulfill these functions if they are also easy for consumers to understand and use. A complex or confusing trademark can actually harm a business by making it difficult for customers to find the products they want, or by leading to confusion and frustration when they try to use the trademarked product. Therefore, it is important to ensure that trademarks are not only protected, but also easy for consumers to use. Only then can they truly fulfill their essential role in the marketplace.

Thus, it is commonly accepted that trademarks exist to protect the interests of businesses. This is achieved by preventing other businesses from using confusingly similar marks, which could lead to consumers being confused as to the source of the goods or services. While this is undoubtedly a vital role of trademarks, it is not the only role that they play. Trademarks also serve an important function for consumers, who rely on them to make informed choices about the products and services that they purchase (Alaknanda, 2020). In many cases, consumers will base their decision on whether to buy a product on its trademark. For example, a consumer might choose one brand of coffee over another because they recognize and trust the brand's name and logo. In this way, trademarks play an essential role in helping consumers to make informed decisions about the products that they buy. Without them, the market would be much less efficient and consumer choice would be reduced. Consequently, it is inaccurate to say that trademarks only play a vital role for businesses. They are also of paramount importance for consumers.