Intellectual Property as Property

In the study of intellectual property, the first thing which strikes you is how large the scope of intellectual property is. Of course, a study of the history of intellectual property rights reveals that most of what is known as intellectual property began with the concept of copyright. Copyright was, essentially, the right to copy something. In the Dark Ages, most of the English commoners were incapable of writing or reading the written word. Hence, the concept of copying something was foreign to these unschooled commoners. Yet, upon the invention of the Gutenberg press, the written word became readily available for mass printing. It was from there that the concept of copyrights began.

I quote Prof David Vaver from the Victoria University of Wellington Law Review (2002) -

The subject-matter of intellectual property rights has increased enormously over the years. Patents begat plant breeder rights; copyrights begat performer, design and database rights; design rights begat rights over semiconductor topographies; trade marks are conceiving rights in domain names on the Internet; and the begetting and begatting is far from over.

The scope of intellectual property law is constantly expanding. Most people think that intellectual property lawyers (or lawyers in general) make a tonne of money and that money is unjustified. That's two misconceptions: First, lawyers don't make a tonne of money. They sometimes have to scrimp and stretch their dollar too. Secondly, if a lawyer earns well, the question is not whether the figure is justified or not. The question is more of, "If it is not justified, why engage the lawyer in the first place?"

That aside, I've been wondering for some time now whether intellectual property -- being a property -- involves the issue of equitable rights and equitable ownership. In the law of real property (real property being land) equitable rights can be created and equitable dealings can take place, and the property owner may retain such rights as against the trustee.

Prof Vaver did not, in the Victoria Law Review, mention the matter. However, he did deal with the issue of intellectual property being dealt with as property; and the shortcomings thereof. The following is an extract (which I hope does not constitute "substantial copying"):

The "property" part of intellectual property is equally problematic. Normative arguments, that the creation of something new from raw material available to all justifies the grant of a property right, go only part of the way. The vivid maxim – made all the more powerful because of its biblical antecedents – that as you sow, so you should reap, may work well in matters agricultural but less so in matters intellectual. If I create a new chair design, the maxim produces no logical proposition about the sort of rights I should reap from my creation. Should I be able to stop imitators or independent creators? Should I just be compensated with a royalty for whatever efforts they borrow from me? (Conversely, should I not pay some tribute to my forebears in design, on whose intellectual shoulders I have climbed?) Should my property last for five years, a century, or forever? Everywhere in the world, or just in my country or county? On complying with no formalities, or upon registration or the marking of my chair with some magic symbol to give the world notice of my claim of rights? Or should I just be eligible for a prize from the Society of Good Chair Designers?

One might, of course, counter such arguments by saying that intellectual property is used only metaphorically, and that metaphors should drive neither law nor policy. I agree, but would observe that the process of reification – treating intellectual property as a thing and deducing principles from its "thing-ness" – has become so entrenched internationally among this generation of lawyers and lawmakers as to have become its own state of the art.[18] The United Nations bureau in charge of the field calls itself the World Intellectual Property Organisation. Intellectual property's international framework is now found in the TRIPs Agreement, the IP abbreviation of which refers to Intellectual Property. The terminology of intellectual property is used constantly throughout that Agreement.

The reification of intellectual property has advantages in creating an analytical framework of sorts for otherwise heterogeneous fields. But it also promotes tendencies that are not always self-evidently positive. Thus:

(1) Treating the rights as property causes legislatures to structure their intellectual property laws in a particular way, and tribunals to interpret them similarly. The laws grant people called owners a broad set of rights over a broad category of matter: for example, the right to exploit an invention for a given time. This terrain is called the owner's property. Any qualification of that broad right – for example, by saying what items do not qualify as inventions – is treated as an exception. The grant of property is then interpreted broadly; any qualification is interpreted narrowly.

This value system is evident in European patent law. The European Patent Convention 1973, in articles 52 and 53, excluded a miscellany of things from patentability for policy reasons: discoveries, scientific theories, business schemes, computer programs, methods for treating humans or animals by surgery or therapy, inventions the exploitation of which would be contrary to public policy, and so forth.

Now, one way of interpreting this list might be to say that it is as important not to patent anything on it as it is to patent things that are off it. On this approach, any doubts about whether or not a patent application claims a mere "discovery" rather than a true "invention" – something found in the natural order, rather than a man-made change to the natural order – should be resolved by dismissing the application. But this does not happen. Instead, the approach is to construe what is patentable generously, and what is not patentable – an exception – narrowly.[19] In other words, when in doubt, create and reinforce property; do not deny it or cut it back.

(2) Reification also gives legislators a strong reason not to trim back any intellectual property right once it has been granted by statute or regulation. If the rights are property, trimming them back in any way looks like state confiscation – an immoral, if not illegal, act if compensation is not offered to the property holder.

Note the curiously asymmetrical assumption here. It is that the public has no right to be free of intellectual property, so that stopping people from doing what they could have freely done before, or requiring them now to pay, does not take away any property rights of theirs. Property language thus weights the relative morality of increasing or decreasing intellectual property rights in favour of increase.

(3) Property language can interfere whenever intellectual property rights are balanced against other rights. Suppose a piece of art is parodied and the affected copyright holder claims infringement against the parodist. The latter may have to admit the infringement, since United Kingdom copyright law – like many others – does not include any specific parody defence. But the parodist may reply that she is exercising a fundamental human right, her right to freedom of expression, protected under Article 10 of the European Convention on Human Rights 1950 ("ECHR") and many other national constitutions. We might say that here are two at least equally important rights in conflict and a balance must fairly be struck between them to encourage the different forms of creativity they entail.

But treat copyright as property, and the balancing exercise changes. We now have a mere freedom conflicting with a property right. Maybe the balance will not start off tipped by this reformulation – but place no bets.

A Canadian case provides a vivid example. The Michelin Tire Co sued a union for infringing Michelin's copyright by using a caricature of the Michelin Man logo on the leaflets the union handed out during a labour dispute. The union's defence that it was exercising its freedom of expression, guaranteed by the Canadian Charter of Rights and Freedoms, was dismissed by the court. Free speech does not entitle anybody to tread on a property right, here copyright. The union could have found some non-infringing way to express itself. The fact that way may have been less effective did not matter.[20] The court let a constitutionally protected right – free expression – be trumped by a right that is not even mentioned in the Canadian Charter, namely, property. That a similar approach may be taken to Article 10 of the ECHR is certainly arguable.

(4) Finally, the "broad grant, narrow exception" rule that applies to interpreting statutes is also much in evidence when lawmakers are lobbied for new intellectual property rights. It seems easier to justify widening an existing right and eliminating an exception, than it is to justify inserting an exception or widening an existing exception. Widening a right, after all, can rely for its justification on a number of aphorisms – "nobody should reap without sowing", "what is worth copying is prima facie worth protecting", and the like – the attraction of which eclipses their opposites: "everyone should reap without sowing", "what is worth copying prima facie deserves to be copied", and the like. The assumption that no or less sowing would occur without the security of an intellectual property right is rarely supported by solid empirical evidence. Typically the evidence is the other way, for the quest for new protection usually occurs well after the time when businesses have already sown and harvested many crops, and when they were aware that intellectual property protection was non-existent or at best shaky.

The process of broadening rights and narrowing or eliminating exceptions is nevertheless well under way worldwide. In 1980, the United States Supreme Court allowed the patenting of a man-made oil-eating bacterium designed to clear oil spills at sea. The court said that the bacterium qualified under Congressional language indicating that "anything under the sun that is made by man" is patentable subject-matter, language that necessarily included life forms.[21] That language has become the new rallying cry of the US courts and US Patent Office. Overturning prior court-made exceptions, they have allowed the patenting of new transgenic life forms (not only bacteria but multicellular life forms including mice and much larger animals), computer programs (for what are these but the electronic version of mechanical parts?),[22] and business schemes – so far only those implemented by a computer program[23] but, on past history, that qualification will surely go, for "anything under the sun made by man" must include the "best laid schemes o' men" (if not mice), however laid.

Meanwhile, Europe and other regions are engaged in a game of catch-up, fearing that somehow they will be left behind if their intellectual property laws are not at least as protective as, if not more than, those of the United States.[24] Thus, a EU Directive to allow the patenting of computer programs is in course of preparation, even though computer programs seem adequately protected under copyright law, and even though the case for granting cumulative protection that inhibits even independent development of a substantially similar program for twenty years – more than the entire conceivable life of most such programs – seems unproven.

Source: http://www.austlii.edu.au/nz/journals/VUWLRev/2001/2.html