justifying ipr module 2
TRANSCRIPT
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Philosophical
Justifications
General Introduction to Intellectual Property
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Why Protect IntellectualProperty?
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Why Protect Intellectual
Objects?
The philosophical justification for granting propertyrights is grounded in two different theories aboutproperty.
One theory is based on the rationale that a propertyright is a type of natural right that should be grantedto individuals for the products that result from the laborexpended in producing an artistic work or a practicalinvention.
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The other theory is that property rights are social contracts
designed to encourage creators and inventors to better serve
society by bringing forth their artistic works and practical
inventions into the marketplace.
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Four moral intuitions regarding IP and
copyright protection
The Scholar Ideas should not be restricted. Good comes from theirsharing and challenging against other ideas. Yet it is not right to claimsomeone elses idea as ones own. What is important is correctattribution.
The EntrepreneurBusinesses expend time and resources in the
research, development, production, and marketing of products in thepursuit of profit. Undercutting a company by copying their productdenies the company the return they deserve for their efforts.
The ConsumerWhat consumers buy is their own to use as they see fit,so far as they do not violate the second intuition.
SocietyIP is essentially social and should be used for the commongood. If there are conflicts between the common good and individualclaims to IP then appeals to the common good may take precedence overindividual claims.
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Moral Justifications for Intellectual
Property
The two standard arguments that weve already
examined, taken together, are what De George
calls the Standard Argument (SA):
Fairness/JusticeThose who spend time, money, andresources in developing a product or expression of an idea
deserve the chance to receive compensation.
UtilitarianSociety benefits from new products. The best
way to encourage the research and development of new
products is by ensuring the opportunity to recoup theirinvestment and to make a profit.
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Philosophical Foundations
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Philosophical Foundations
Lets briefly characterize three theories that have
traditionally been used to justify property rights (before
the cyberspace era):
The Labor Theory of Property The Utilitarian Theory of Property
The Personality Theory of Property
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LOCKES LABOUR THEORY
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The Labor Theory of Property. The basic idea behind this
approach is that a person has the right to the fruit of his or
her labor.
This approach traces its origins to 17th century philosopher
John Locke.
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John Locke (1632-1704)
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Lockes Theory of Appropriation
1.Nature was created
for all to share; it is acommon
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Where does labor enter into it?
Whatsoever he removes out of
the state that Nature hathprovided and left it in, he hathmixed his labor with it, and
joined to it something that is hisown. . .
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Lockes Theory of Appropriation
1. Nature was created for all to share;it is a common
2. We each own our body, and thelaborit produces
3. this labor being theunquestionable property of thelaborer
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For Locke, it is fundamental that
these belong to the individual;no one has a superior or conflictingclaim
Each person is bornfree
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Lockes Theory of Appropriation
1. Nature was created for all to share; it is a common
2. We each own our body, and the laborit produces
3. Mixing labor with the commonyields a valid property claim
4.Subject to caveats andprovisos; not an absoluteclaim
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1. The famous sufficiencyproviso
No man but he can have a right to what [his labor] is
once joined to, at least wherethere is enough and
as good left incommon for others.
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The same law of nature thatdoes by this means give us
property, does also boundthat property too.
-- Second Treatise, 30; p. 3
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2. Spoliation Proviso
As much as anyone can make use of
to any advantage of life before itspoils, so much by his labor he mayfix his property in . . . -- p 3
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3 Lockean Provisos
Sufficiency (as much and as
good left over)Spoliation
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Labor is far from an absolute
claim to titleHe that had as good left for his
improvement as was already
taken up needed not complain,ought not to meddle with whatwas already improved byanothers labour
; if he did it isclear he desired the benefit ofanothers pains . . .
-- 2ndTreatise, 33
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PERSONALITY THEORY
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The Personality Theory of Property. According to thepersonality theory of property, the intellectual object is anextension of the creators or authors personality.
For this reason, advocates of the personality theory believethat artistic works deserve legal protection.
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Hegel, personhood and self-realization
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Basic Hegelian concepts
Individual will
Autonomy (freedom to
choose and act)
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Hegel and stages ofdevelopment
The will is ineffectual when trapped inside theindividual
Projection of the will eg via property claims is animportant step forward
Merging of individual wills into a functional, other-
regarding state is the end goal
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Simple version
To become fully self-realized, anindividual must be able to project hisor her will onto objects in the external
world
This requires a stable set of claims overthose objects i.e., property rights
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Control: maintain the
object in the intendedstate; hold it steady, topermanentlyaffix thewill to it
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Labor vs. will
Labor may be the result ofconscious choice
But willis the part of us thatdoes the choosing; it ismore an integral part of whowe arethan labor which ismore a quality or product
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JK Rowling
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JK Rowling:
Locke: she worked hard in drawing from a longtradition of wizard and coming of age tales, and
so deserves copyright in her Harry Potter books
Hegel: The writing of these books literally helped
make her who she is, or helped her more fullyrealize who she really is
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Utilitarian theory
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The Utilitarian Theory of Property. According to this theory,
granting property rights will maximize the good for the
greatest number of people in a given society.
Utilitarian theory underpinned the rationale used by the
framers of the US Constitution for granting intellectual
property rights.
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Utilitarian Perspective
Jeremy Bentham
(1748-1832)
Bythe principle of utility is
meant that principle which
approves or disapproves of
every action whatsoever,
according to the tendencywhich it appears to have to
augment or diminish the
happiness of the party
whose interest is inquestion: or, what is the
same thing in other words,
to promote or to oppose
that happiness."
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Utilitarian moral philosophy or ethicscan be simply described as "the art
of directing men's action to theproduction of the greatest possiblequantity of happiness, on the part ofthose whose interest is in view."
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John Stuart Mill
Mill argues that themoral worth ofactions is to be
judged in terms ofthe consequences ofthose actions.
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The utilitarian perspective
The greatest good for the greatest number
Rights follow only from calculations of collectivewelfare
Natural rights are useless Jeremy Bentham
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Landes and Posner
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The other side of the coin
INFORMATION WANTS
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INFORMATION WANTS
TO BE FREE
Richard Stallman is opposed to intellectual propertyrights for software.
He did copyright his emacs editor, but he claims he did
this to prevent others from copyrighting and thenmaking a profit from his software.
Stallman has been a staunch advocate of the view thatINFORMATION WANTS TO BE FREE.
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Stallman believes that programmers would continue to write
software programs even if they received no financial rewards
in the form of copyright protections.
Stallman makes the point that information is something that
human beings desire to share with one another.
Stallman believes that software development is like science.
Science progresses most rapidly when knowledge is shared
openly.
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According to Stallman, in order for information to be shared,
it must be communicated, so elaborate intellectual property
structures and mechanisms that prohibit, or even discourage,
the communication of information would seem to undermineits very purpose as something to be shared.
Your reaction?
INFORMATION WANTS
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INFORMATION WANTS
TO BE SHARED
Herman Tavani argues that INFORMATION
WANTS TO BE SHARED has a chance to be
taken far more seriously than INFORMATION
WANTS TO BE FREE.
The WWW came into being because SIR Tim
Berners-Lee, who invented HTTP, shared it
freely with the world.
The idea behind HTTP was to allow for the
sharing of information.
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Doug Englebart never received a patent for his invention,
the mouse. He shared it freely with everybody.
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The sharing of this kind of information has benefited many ofthose entrepreneurs who now seek to control the flow ofinformation in cyberspace.
MS Windows ultimately derived from ideas that came fromApple and Steve Jobs (at Apple) got most of those importantideas from Xerox PARC.
It is reasonably accurate to say that current user interfaces
have benefited from the sharing of information along theway.
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The Open Source movement is certainly consistent with this
idea that INFORMATION WANTS TO BE SHARED.
Eric Raymond was greatly influenced by Richard Stallman.
PRESERVING THE INTELLECTUAL
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PRESERVING THE INTELLECTUAL
COMMONS
They are similar to ideas expressed by the Stanford
University law professor, Lawrence Lessig.
Lessig is a strong supporter of the Open Source
Movement.
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The key question relates to the future of the intellectual
commons.
What if all the information that we have traditionally shared
freely were to disappear from the public domain and enter
the world of copyright protection?
In the short term, the result might be that corporations and
some individuals will profit handsomely from this
privatization of information policy.
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In the long term, however, our society may be worse off
intellectually, spiritually, and even economically, if the short-
term goals or privatization are not balanced against the
interests of the greater public.
If these topics interest you, you might want to look at some
of Lessigs books.
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Justifying protection for
trademarks
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Why Protect?
1. Protecting the
consumer.
2. Protecting the
businesses.
1. Property rights
2. Landes and Posner
3. Developed through
common law system
which allowed tort of
deceit
4. Infringement-to preventconfusion
5. Dilution-to maintain
integrity and uniqueness
of the mark
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Rational basis
To identify origin or ownership of the goods to
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o de t y o g o ow e s p o t e goods to
which TM is affixed.
1.Craftsmen used the marks to differentiate goods
2. Industrialization resulted in merchants using marks to
identify goods and had nothing to do with the origin or
source of the goods.
3. Regulatory requirement to affix marks- defective work
could be traced back to the craftsmen and punished or
foreign goods smuggled may be confiscated.
4. Probably indicates that emanate from the same
anonymous source from where the earlier goods of a
particular kind or quality came from.
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.contd
5. Trademark law, by preventing others from copying a
source-identifying mark, reduce[s] the customer's costs of
shopping and making purchasing decisions, for it quickly
and easily assures a potential customer that this itemthe
item with this markis made by the same producer asother similarly marked items that he or she liked (or
disliked) in the past.
6. True function of TM then is to identify a product a
satisfactory and stimulate further purchases.
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2. To prevent deceitful sale
Common law concept of passing off
Equity
Unfair trade
3 Product differentiation
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3. Product differentiation
function
HONDA v HYUNDAI v Ford v Volkswagen
Nike v Reebok v Adidas v Puma
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4. Quality Function
trademarks as being identifiers of quality providing
consumers with information about the quality of their
products, and based on the consumer's previous
satisfaction when making purchases.
manufacturers have the required incentive to produce
products of high, indeed superior quality
This argument contends that owners of well-known
trademarks should enjoy protection even when use ofsuch trademarks by a third party is for dissimilar goods
Ancillary function
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Contd
No law or regulation mandates that a TM owner has to
maintain the same level of quality for all products
bearing the mark.
Not a guarantor of any quality
However enables the producer to earn through licensing
Can employ control over the licensee to maintain
quality. Non-compliance of this requirement by thelicensee can result in termination of the license.
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5. Instrumental tool in
advertising
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6. Tool for building reputation or
goodwill
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7. Reduces the cost of searching
Trademark law, by preventing others from copying a
source-identifying mark, reduce[s] the customer's costs
of shopping and making purchasing decisions, for it
quickly and easily assures a potential customer that this
itemthe item with this markis madeby the sameproducer as other similarly marked items that he or she
liked (or disliked) in the past.