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TUMAINI UNIVERSITY MAKUMIRA UNIVERSTY COLLEGE FACULTY OF LAW
PRAYGOD I MANASE 11/1/2010
PRAYGOD I. MANASE
Intellectual property law continues to expand, with the net result that intellectual property right owners are becoming increasingly powerful. When will legislators and judges learn that more intellectual property protection is not necessarily better?’
so has on the other.wipo. the level of suspicion of criticism of intellectual property protection. The 2 . Oxford University Press 2nd edition (2004) pg 1 4 WIPO An explanatory note concerning the origins of the United Kingdom intellectual property legal regime accessed at http://www. First.wipo. such as those in the free culture movement. 2 Intellectual property law regulates the use and exploitation of that (mental or creative) labor. point at intellectual monopolies as harming health. This phrase embodies two important concepts.int/wipolex/en/notes/gb. Copyright. literary and artistic works. 1 Intellectual property rights are exclusive rights given to people over creations of their minds.5 As on the one hand the demand for increasing protection has arisen.int/about-ip/en/ on 3rd June 2011 Jennifer Davis. is that the owner of the intellectual property right is the only person who can exploit the right. intellectual property was regulated under common law and the Statute of Monopolies enacted in 1623 rendered illegal all monopolies except those for a defined term of years. One of the vivid examples of this is the Microsoft case. Intellectual Property Law.6 Some critics of intellectual property. Intellectual Property. Patents. images.Sweet and Maxwell 6th Edition (2007) Pg 31 7 The United States v Microsoft Corporation was a set of consolidated civil actions filed against Microsoft Corporation pursuant to the Sherman Antitrust Act on may 1998 by the United States Department of Justice and 20 US states. and symbols. software patents and business method patents. Oxford University Press 2nd edition (2005) pg 2 3 L . Cornish et al. And Allied Rights . that intellectual property rights are negative in nature. and benefiting concentrated interests to the detriment of the masses and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions.Intellectual property (IP) refers to creations of the mind: inventions. With mounting pressures by judicial criticism. 7 Others hold that allowing property rights in ideas and 1 2 WIPO website accessed at http://www. names. they can be given rights to prevent others from using their inventions. designs or other creations. Intellectual Property Law. preventing progress. Those royal favors in the form of royal charters. because the owner is given the right to exclude others from infringing any one of the particular rights conferred and the second.Bently et al. letters close and letters patent granted a monopoly to produce particular goods or provide particular services. and designs used in commerce.pdf on 14th June 2011 5 Ibid 6 W. Trademarks.3 Intellectual property law emerged under the Elizabethan era in the form of royal favors granted by the King or the lord of the land to the introducers of new techniques. This is indicated by the phrase „exclusive rights‟ used in intellectual properties. 4 One of the important characteristics of intellectual property is that it is monopolistic.
Oxford University Press 2 nd edition (2005) pg 2 10 L . First is the law and economics justification. once made available to the public they can readily be copied. intellectual property can still be defended on a number of grounds which justify its protection.wikipedia. The trend has been toward longer copyright protection (raising fears that it may someday be eternal).Bently et al. Hence intellectual property rights are justified because they offer an incentive for the creation of new intellectual capital and without them. Furthermore there may be no limit to the extent to which it can be copied with each copy having as much value as the original. In addition. In intellectual property this is explained to mean that those who use their labor in the creation of a particular product should be rewarded for it. plaintiffs alleged that Microsoft abused monopoly power on Intel based personal computers in its handling of operating systems and browser sales. It is generally about the existence of uncultivated common which is characterized by the abundance of goods. Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand. 10 Intellectual property rights can also be justified on the basis of labor. Intellectual Property Law. yet once it has been embodied in material form may become relatively cheap and easy to reproduce. It embodies a more rights based approach. and as a result the market would be impoverished. This is sometimes referred to as the Lockean approach. Oxford University Press 2nd edition (2004) pg 3 . there would be underproduction of intellectual products because though they are expensive to produce. This is based on the fact that intellectual property is costly and time consuming to produce requiring certain degree of inventiveness and originality.9 The point in this is that without intellectual property protection.org/wiki/Intellectual_property accessed on 14th June 2011 9 Jennifer Davis.information creates artificial scarcity and infringes on the right to own tangible property. the developers and controllers of items of intellectual property have sought to bring more items under the protection 8Never the less. both in duration and in scope. Intellectual Property Law. individuals and companies would be deterred from making necessary initial investment to produce intellectual capital. which means that in the absence of rights giving exclusivity a creator is likely to be undercut by competitors who have not incurred the costs of creation. Property rights are granted to those whose labor add value to the goods they take from the common provided that as a result of their labor the common stock is also increased or. 8 http://en. as Locke put it provided “enough and as good” is left in the commons for others to enjoy.
(2011) pg 4 University of London International Programmes. Economists estimate that two thirds of the value of large businesses in the USA can be traced in intangible assets. intellectual property rights are always vulnerable to challenge by third parties. 2011 4 . accessed at https://www. and disagreement is over where the line should be drawn.ucla. Types of Intellectual Property.uk/current_students/programme_resources/laws/subject_guides/intellectual_propert y/intel_prop_chpt2. With the exception of trademarks. however both those in favor of strengthening and those in favor of weakening existing protection agree that intellectual property laws need to strike a balance between providing sufficient incentive for creation and the freedom to make use of existing ideas. Introduction To Intellectual Property Law. What’s Intellectual Property Good for? Accessed at http://levine.londoninternational. lecture handout. 15 11 12 Sipho Limbe. so unlike real property and tangible personal property. registered designs and trade marks). Finally.sscnet. it appears that the public debate over intellectual property is stirring.ac.intensive industries are estimated to generate 72 percent more value added price (minus material cost) per employee than non IP intensive industries.pdf on 14th June.Apart from the foregoing grounds intellectual property rights can be justified on the basis of economic development.pdf on 3rd June 2011 13 Ibid 14 Ibid 15 Michele Boldrin et al. the competition authorities may intervene where the owner has abused the right. 13 In the case of copyright and designs. 12 Others require the owner to make effective use of the intellectual property right: hence failure to exploit for instance a patent may result in compulsory licensing and failure to use a trade mark for more than five years means that the registration may be revoked at the instance of any third party. statute provides for the right to be declared invalid in certain instances. both sides agree that intellectual property rights are a “necessary evil” that fosters innovation. all intellectual property rights are of finite duration. IP.edu/archive/refs4786969000000000082. in the case of all registered intellectual property rights. intellectual property legislations contain many built-in safeguards to ensure that a balance is struck between the rights of the intellectual property owner and free competition. 14 In conclusion. Put it differently. 11 Despite all the justification and protection conferred on intellectual property. Some of these safeguards require the owner to pay renewal fees regularly (in the case of patents.
R. Sweet and Maxwell 6th Edition (2007) Articles.wipo.int/about-ip/en/ on 3rd June 2011 WIPO website. Introduction To Intellectual Property Law.sscnet. Copyright. Intellectual Property Law.pdf on 14th June 2011 Cases The United States v Microsoft Corporation cases. An explanatory note concerning the origins of the United Kingdom intellectual property legal regime accessed at http://www. Oxford University Press 2nd Edition (2004) W. Trademarks and Allied Rights. Lecture Handout. University of London International Programmes website.Bibliography Books. Cornish et al.int/wipolex/en/notes/gb. Michele Boldrin et al. Types of Intellectual Property. Intellectual Property Law. (2011) Websites. accessed at https://www.uk/current_students/programme_resources/laws/subject_guides/ intellectual_property/intel_prop_chpt2. Jennifer Davis. Intellectual Property. 157-231 (1999) 5 . What’s Intellectual Property Good for? Accessed at http://levine. Oxford University Press 2nd Edition (2005) L .ucla.londoninternational. Supreme Court E.pdf Sipho Limbe.edu/archive/refs4786969000000000082. Patents.Bently et al.wipo.pdf on 3rd June 2011 WIPO website accessed at http://www.ac.