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Should Intellectual Property rights exist? In your answer discuss the advantages and shortcomings of Intellectual Property Rights and give examples in your answer.

Types of Intellectual Property Rights

Intellectual Property Rights (IPR) is considered as the rights associated with the creativity of the humans. An individual is said to have been creating intellectual property when he or she invent a product, creates something, writes a program, lyrics and such other things. The IPR law enables the creator of a property to get benefitted economically out of their creation. The World Intellectual Property Organization (WIPO) recognizes the legal rights of the creator over their work. The IPR applies on literary, scientific and artistic work, artistic performances, phonograms, scientific discoveries, trademarks, protection against inequitable competitions and various other rights arising through intellectual efforts. The IP laws are considered as beneficial for every country; however, these laws are public goods and must be managed in a prudent manner. On the debates over existence of intellectual property, the discussion has taken two forms which are deontological as well as consequentialist. The deontological justification for intellectual property considers rights on intellectual property as natural rights. The consequentialist justifications regarding IP consider relationship between IP and creativity as local and contingent instead of essential and universal. In this essay, the intellectual property rights will be explored as a concept as well as the value of the intellectual property in the present scenario will be analyzed critically in developing as well as developed world.

IPRs are of various types which include Copyrights, Patents and Trademarks. The Copyright is considered as the subject matter for national legislations under which, term of protection, requirement of registration, rights linked to copyright and term of copyright are addressed. Patents are considered as the special rights given by a sovereign state to an inventor and these rights are granted for limited period of time and in general extend for about 20 years. The patents protect inventions such as products or processes, however, inventions should meet the conditions for patentability. The criteria for obtaining patent on a work require novelty, non-obviousness and utility or industrial application. Trademark is considered as a recognizable sign, symbol, design or expression used for identifying and differentiating one product or service derived from a particular source against another. The trademarks can be visible on packaging, labels, company’s merchandise, advertisements and many more. The trademark holder can utilize benefits of rights associated with trademarks and, such rights can be enforced in the case of trademark infringement. The purpose of trademark law is to ensure consumer protection because it ensures that the public are being given correct information regarding the origin or quality of a product or service.   

Deontological vs Consequentialist Justifications

There are various other types of IPs as well such as trade dress, trade secrets, geographical indicators, and traditional knowledge. The enforcement of intellectual property rights is important because by protecting the intellectual property, it becomes easier to speed up legal proceedings in a case of stealing or imitating the IP, which is known as infringement. It provides automatic rights to the intellectual property such as copyright to all types of literary works, web content and sound recordings. There are few types of IPRs, that are required to be applied for, which include trademarks, registered designs, and patents. As registered trademarks protect a brand, it provides rights to take legal action against counterfeiters. The trademark symbol is used by the trademark holder to warn others not to use it and all the rights to sell and license the trademark to the others remains with the trademark holder.

As stated before, IP laws are public goods that need to be utilized wisely, for example, copyright laws that promote music industry, can also make access to literary as well as scientific knowledge, which becomes unaffordable if not managed properly. However, the process has become more complicated now, because by investigating industrial property, it can be assured that trade secret laws, trademark laws, unfair competition laws and such others provide benefits to all the countries and, innovation is impossible without them. For instance, patent laws could make the developing countries able to import updated and technologically advanced products that might not be made available otherwise. Similarly, IPRs could be harmful when the foreign sellers impose terms that destabilizes the ability of the entrepreneurs of a country to compete in the global marketplace. The developing countries require reverse engineering knowledge about the non-patentable products in order to add value by adapting international goods to the local conditions. These countries have to compete in markets for knowledge goods on similar normative terms and conditions that regulate the developed industrialized countries. All these countries have to struggle and face enormous challenges and financial and other burdens imposed by universal set of comparatively high IP norms. Furthermore, even such developing countries that avoid innovation system must have to involve with the social costs of intellectual property norms in the form of defensive measures as well as, they want to provide other public goods continuously. They have the pressure to adapt to these flexibilities with varying success levels.

Importance of Enforcement of Intellectual Property Rights

There are various other issues as well and it would be beneficial if the pressure on the developing countries for higher levels of IP protection eases. When developing countries choose production of knowledge goods for local consumption or other essential purposes, they have to face actual challenges such as have to maintain balance incentives for their industries without any discrimination against the foreigners because of requirement of national treatment. The political pressure also increases as the companies need to be careful about the public health and education issues. So, the economically vibrant developing countries are required to resolve issues related to the standardization of TRIPS- amenable domestic norms in order to encourage innovation and regulating similar set of norms to provide access to knowledge and medicines within affordable terms and conditions, which is actually a difficult process.

There are various merits and demerits of intellectual property which requires businesses to be aware of. The advantages of IP include no fees associated with IP if one needs to enhance or change the invention particularly when, it is not formally protected. Having patent protection over the intellectual property enhances the ability to have competitive edge over other similar businesses because other businesses operating in similar industry cannot copy, use, manufacture, or sell the product. Through intellectual property protection, more income can be generated by a business through licensing agreements or sale of the invention because, IP enhances the value of the company and helps in marketing its products and services. With intellectual property protection, the finances for the business can easily be obtained from lenders and financial institutions because such protection enhances the credibility of the business or a company. The business could have greater export opportunities because IP can increase competitive edge in the export markets, thus, designs can be used to market goods in the international market. It requires entering into franchising agreements with international businesses located in countries where to perform business or export the patented products. It can help in increasing the profits considerably by approaching international market across various countries.    

In a similar manner, there are various disadvantages associated with IPR as well. It includes additional costs, pirating and reduction in quality. To protect the intellectual property could be very costly, particularly in case of complicated products that involves deigns, methods and variety of processes. It requires filing of several patent applications in order to protect a product. Furthermore, hiring a legal officer to assist in the processes of application also needs higher amount of fees along with filing fees and other associated costs. Taking into consideration, the highly required intellectual property, it becomes difficult to restrain the consumers from taking such intellectual property and the attempts made to enforce IPRs could reduce the customer base of the company. Along with it, with the reduction of the intellectual property rights, the quality of the product that has been created also reduces, that is why, there is much less of an encouragement to perform work and to put time and resources particularly, when the company is already aware that its IPRs are not absolute.

Conclusion

After analysing the position of IPRs in the present scenario, it can be concluded that there is need of experimenting new intellectual property models, which include those relying on open source solutions as well as strategic use of liability rules because these rulers can alleviate market failures without hindering follow-on innovation, without creating entry barriers and creating blocking effects. Furthermore, developing countries are required to formulate suitable competition laws, policies as well as rules and they should experiment different approaches to encourage and broadcast innovation in their own regional as well as national systems of innovation. Therefore, it can be taken into consideration that despite few of the disadvantages of IPRs, these rights on property should exist as they have been proved beneficial for all the countries whether developing or developed. The IPRs provide rights on the creations and violating or infringing such rights are punishable, which provides total rights to the creator of the property. However, it requires knowledge about the utilization of IPRs so that all can avail all the benefits provided under IPRs.

References

Beckerman-Rodau, Andrew, "The Problem with Intellectual Property Rights: Subject Matter Expansion" (2018) 13(1) Yale Journal of Law and Technology <https://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?referer=https://scholar.google.co.in/&httpsredir=1&article=1064&context=yjolt>

Reichman, J. H., "Intellectual Property: Does IP Harm Or Help Developing Countries?" (2007) 2007(1) Journal of Law, Technology & Policy <https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2569&context=faculty_scholarship>

Business Valuation Resources, What Are The Advantages And Disadvantages Of Patents, Copyrights, Trademarks, And Trade Secrets? | Business Valuation Resources (2018) Bvresources.com <https://www.bvresources.com/blogs/intellectual-property-news/2018/03/12/what-are-the-advantages-and-disadvantages-of-patents-copyrights-trademarks-and-trade-secrets>

European Space Agency, What Is Intellectual Property? (2018) Esa.int <https://www.esa.int/About_Us/Law_at_ESA/Intellectual_Property_Rights/What_is_intellectual_property>

Hussain, Advantages and Disadvantages of Intellectual Property Rights (2013) Safehiring.wordpress.com <https://safehiring.wordpress.com/2013/03/16/advantages-and-disadvantages-of-intellectual-property-rights/>

NIBusinessInfo, Advantages of Protecting Intellectual Property (2018) Nibusinessinfo.co.uk <https://www.nibusinessinfo.co.uk/content/advantages-protecting-intellectual-property>

The British Library, What Are Intellectual Property Rights? (2017) <https://www.bl.uk/business-and-ip-centre/articles/what-are-intellectual-property-rights>

UNESCO, Intellectual Property Rights (2018) Unesdoc.unesco.org <https://unesdoc.unesco.org/images/0023/002322/232208E.pdf>

UpCounsel, Advantages and Disadvantages of Intellectual Property: Everything to Know (2018) <https://www.upcounsel.com/advantages-and-disadvantages-of-intellectual-property>

UpCounsel, What Is Disadvantages Of Intellectual Property Rights? (2018) <https://www.upcounsel.com/disadvantages-of-intellectual-property-rights>

WIPO, What Is Intellectual Property? (2018) Wipo.int <https://www.wipo.int/edocs/pubdocs/en/intproperty/450/wipo_pub_450.pdf>

WTO, What Are Intellectual Property Rights? (2018) Wto.org <https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm>

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