THE GLOBAL SPREAD OF INTELLECTUAL PROPERTY LAWS

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHHATTISGARH

Subject –Intellectual Property Rights

Submitted to Submitted by

Ms. Garima Panwar Akansha Khalkho

Assistant Professor Semester – 4

(Law) Section - B

Roll No. - 14

SUBMITTED ON – 16/02/24
 DECLARATION

I hereby declare that the project entitled, “The Global Spread of Intellectual Property Laws”
submitted to Hidayatullah National Law University, Raipur, is not plagiarized and original
written in my own words and it’s my original work on the topic. It is properly researched and
analyzed after going through deep in the topic and followed by all the instruction of the
University given by the faculty.

Name – Akansha Khalkho

Semester – VI (B.A. LL.B. HONS)

Section – B

Roll No. –14

 INTRODUCTION

Intellectual Property is playing a leading role in the world of Patents and Copyright. It's pretty
remarkable considering that this system, which regulates innovation and creativity in markets, is
relatively new, only about 300 years old. There are various reasons for this widespread adoption.
For one, intellectual property (IP) rights are useful for gaining economic and political power. But
there are also legal reasons for this, particularly the concept of legal transfers.

Legal historian, Alan Watson pointed out that throughout history, laws have often been borrowed
from one place and applied in another. This process, known as legal transplantation, it is a key
aspect of comparative law. Some people argue that legal transplants don't really work because
rules get their meaning from the legal culture, they're part of. But others believe that these
transfers do have effects, and the question is what those effects are.

This article suggests that there are different kinds of legal transfers beyond just moving rules
from one place to another. Sometimes, legal principles are applied to different situations within
the same jurisdiction or region. One example of this is the spread of intellectual property rights
globally.

In the late 1700s, the concept of exclusive rights to intellectual property, like inventions and
creative works, was introduced in Western Europe. During the colonial era in the late 1800s and
early 1900s, this idea was exported to other parts of the world. Another transfer occurred in the
1960s when colonialism ended, and indigenous communities in developing countries began
seeking protection for their traditional knowledge.

The article focuses on three specific legal transfers related to intellectual property rights. First, it
discusses how the idea of exclusive rights to intellectual property was borrowed from real
property laws. Then, it talks about how these laws spread during colonialism. Finally, it
addresses how traditional knowledge, held by indigenous communities in developing countries,
became protected under intellectual property laws after colonialism ended. These transfers might
not have been the main reasons for the global adoption of IP rights, but they played a part by
providing legal frameworks to regulate innovation and creativity.
 THE GLOBAL SPREAD OF INTELLECTUAL PROPERTY LAWS

Three transfers in the history of IP law

The spread of Intellectual Property laws can be divided into three different tranfers:

I. From property rights in tangibles to Intellectual Property Rights

During time of revolution there were big changes in how laws protected people's ideas and
inventions. Before, in the old days, only certain people had special rights to make or sell things.
But during these revolutions, new laws were made to give rights to the people who came up with
new ideas or made new things. Like in 1709, England made a law called the Statute of Anne,
which gave authors rights to their books. Then, in the 1790s, the US and France did similar
things with their laws. These new laws were a big deal because they said that ideas and
inventions belong to the people who came up with them, not just to kings or religious leaders.
This idea came from a guy named John Locke, who said that if you work hard on something, it
should belong to you. But there were some problems. 1 The old laws didn't talk about ideas or
inventions, just about things you could touch, like land or gold. So, they had to figure out how to
make a new type of property for ideas and inventions.

During the late 1700s, a group called the romantics thought that authors should be seen as really
important, and they should own their work. This idea caught on, and countries like France started
making laws to protect authors and inventors. They said that the things people made were like
their babies and they deserved to have rights over them. They also came up with the idea of a
"work," which means the thing someone creates, like a book or a painting, and it's separate from
the physical thing itself.

This idea spread around the world with agreements like the Paris Convention, which said that
ideas and inventions should be protected everywhere. But even though we have these laws, there
are still arguments about what exactly they mean. Some people in places like France and
Germany argue about whether ideas and inventions should be seen as regular property or
something different. This is because ideas and inventions are not like things you can touch, so it's
tricky to figure out how to treat them in the law.

1
C. Hesse, The Rise of Intellectual Property, 700 BC-AD. 2000: An Idea in the Balance, Daedalus, (2002).
In the end, these laws were a big step forward in protecting people's ideas and inventions. But
there's still a lot of debate about how to best do that. Even though we call them property rights,
ideas and inventions are different from regular things you can touch, and that makes it
complicated. So, while we've made progress, there's still more to figure out about how to best
protect and encourage creativity and innovation.

II. From Western Europe to the Rest of the World

In the late nineteenth century, the inventions and also works of art became tradable commodities.
But there were limitations in the IP rights, the rights were limited within the territory of state. For
example, the copyrights and patents of Germany were only valid in Germany and not in other
countries and vice versa. However, the non-colonial empires wanted to capture the non-European
markets, which consequently exported the IP laws in other parts of world.

The global system of protecting intellectual property (IP) didn't really kick into gear until the
mid-1990s with an agreement called TRIPS, part of the World Trade Organization's Marrakesh
Agreement.2 But the roots of this system go back much further, to the days of European colonial
expansion. When European powers were spreading their influence around the world, they
brought their laws with them. One way they did this was by simply saying that their laws applied
in the colonies. For example, Britain introduced copyright law to all its colonies in the early
1800s, and France did the same with its revolutionary act on author's rights in 1857. Patent law
spread a bit more slowly but still reached places like India and New Zealand by 1864.

The other way IP laws got to the colonies was through international treaties. These treaties said
that certain laws applied to "Certain Territories," meaning the colonies. Colonial powers like
Britain and France used these treaties to extend their IP laws to their colonies, protecting the
business interests of companies back home. They were mainly worried about controlling markets
and keeping up with new communication technologies. These colonial laws had big
consequences. They created a standard set of rules for IP around the world, ignoring the different
situations in each country. For example, they didn't consider that developing countries had
different economic circumstances from Western Europe. Also, when these colonies became

2
Daniele Archibugi, Andrea Filippetti, The Globalisation of Intellectual Property Rights: Four Learned Lessons and
Four Theses, Wiley online library, (Feb. 16, 2024 7:56PM)
https://onlinelibrary.wiley.com/doi/10.1111/j.17585899.2010.00019.x
independent, they were already part of the global IP system, so they didn't have to join later –
they were kind of stuck in the club.

But there was a twist. Traditional knowledge, like folklore and oral literature, wasn't covered by
these laws during colonial times. It wasn't until the 1960s that it started getting protection under
the label of "folklore." This meant that while Western ideas were being protected, local
knowledge often wasn't. These colonial laws shaped the global IP system we have today. They
spread Western ideas about ownership and innovation around the world, but they also left out a
lot of local knowledge.3 And even after countries gained independence, they were still stuck
following these rules, whether they wanted to or not.

III. From the Protection of Innovation to the Protection of Traditional Knowledge

After colonies gained independence, there was worry that the global system of protecting
intellectual property (IP) might fall apart. The organization in charge of this, called BIRPI, was
especially concerned about authors losing out if their rights weren't protected in newly
independent countries. There was debate about whether these new countries were still bound by
the old IP treaties, but most of them stayed in the club.4

Even though many countries became independent, they decided to keep following the IP rules set
by their former rulers. Only a few, like Indonesia and Syria, decided to leave the club. But most
African countries, for example, chose to stick with it, or even joined regional IP systems. These
systems were set up to replace old colonial laws with new ones that still protected intellectual
property.

There were seminars and meetings held to advise these new countries on IP matters, and they
were encouraged to adopt laws similar to the ones in Western countries. This was seen as a way
to help them develop. However, not everyone agreed that this was the best approach. There were
some big debates about how to protect things like traditional music and folklore. Some people

3
Stephen Ezell & Nigel Cory, The Way Forward for Intellectual Property Internationally, Information Technology
and Innovation Foundation, (Feb. 15, 2024 12:36PM) https://itif.org/publications/2019/04/25/way-forward-
intellectual-property-internationally/
4
National Research Council, The Global Dimensions of Intellectual Property Rights in Science and Technology,
National Academies Press Pg.3-15
argued that these should also be covered by IP laws. This idea gained traction, and eventually,
many countries agreed to protect their cultural heritage under IP laws.

But protecting traditional knowledge wasn't straightforward. There are still many discussions and
model laws about how to do it properly. Some argue that international treaties should require
industrialized countries to protect traditional knowledge, but this hasn't happened yet. Despite
these debates, the idea of protecting traditional knowledge helped keep developing countries
involved in the global IP system.5 It showed that their concerns were being taken seriously, even
though they were once colonies.

Today, most countries, even the poorest ones, protect copyrights, patents, and other IP rights,
even though they don't have to under international trade agreements. This shows how the
colonial legacy still shapes the global IP system. In short, the TRIPS Agreement in the 1990s
was just one step in a long process of integrating developing countries into the global IP system. 6
The debate about protecting traditional knowledge is part of this process too, but some argue that
it's just a way to cover up the fact that old colonial laws are still in place.

5
Cheng, Wenting (2023). China in Global Governance of Intellectual Property: Implications for Global Distributive
Justice. Palgrave Socio-Legal Studies series
6
Sell, Susan K.; Sell, Susan K. (2003). Private Power, Public Law: The Globalization of Intellectual Property
Rights. Cambridge University Press
 CONCLUSION

1.Legal transplants and legal analogies

The global intellectual property (IP) system grew through three main legal changes, split into
two groups. The first group involves copying hard rules like property rights to different places,
which work similarly in different situations. This led to complaints about copyright piracy being
the same across different movie industries, like Bollywood in India and Nollywood in Nigeria.

The second group is about using legal ideas in new ways. In IP law, this is important for making
new laws. Property rights started with physical things, then changed to include ideas and
creations. This happened slowly in Western countries. But when property rights were applied to
traditional knowledge, it was because of politics, not social change.

Unlike courts, which apply specific rules to similar cases with limits, these legal changes were
about big ideas like property. From these changes, new ideas like intellectual property came out,
without always thinking about the problems they might cause.

2. Legal Transfer conceal differences

When laws are moved from one place to another, they often hide important differences. For
example, when we treat intellectual property like physical property, we ignore the fact that ideas
are not the same as land or objects. Ideas, like songs or inventions, can be used by many people
without running out. But if we focus too much on owning ideas, it can limit what people can do
with them. Instead, we should focus on rules that control how ideas are used, like copying or
creating new things, to make sure everyone has the freedom to express themselves.

Similarly, when we take laws about intellectual property from rich countries and apply them to
poorer ones, we might not consider what each country really needs. Poorer countries often need
easy access to ideas so they can develop and grow. But rich countries might want more
protection for their own ideas. In the past, countries like the United States didn't protect ideas
from other countries, which actually helped them grow.

Also, when we try to protect traditional knowledge using the same laws as modern ideas, we
might miss the point. Traditional knowledge, which comes from community practices and
beliefs, doesn't fit well into the same rules that govern modern ideas. Indigenous communities
don't want their knowledge treated like something to be bought and sold. They want it to be
respected as part of their culture and their right to control.

Overall, these legal changes often bring old problems with them, making things harder for
everyone. For example, thinking of ideas like physical property can stop new ideas from
flourishing. And copying laws from rich countries to poor ones can hold back development. We
need to be careful and understand the differences between places and cultures when making
laws. Recognizing these differences is important for creating laws that work well for everyone.