Introduction
The issues that surround the protection of intellectual property continue to prevail as the intangible nature of intellectual property makes the limitations of its proper use hard to identify and delineate. Especially in this age when technology enables intellectual property to be created in so many digital formats, such properties can be even harder to safeguard. Although laws are created to define and limit the correct and proper use of intellectual property, these laws are not always enough. To strike a balance, the proper use of intellectual property can be ensured through compliance to these laws combined with a person’s personal ethical judgment. As such, the best way to curb the unauthorized use of intellectual property would be to promote the ethical values that would enable individuals to determine for themselves whether their use of a piece of intellectual property is correct or not.
Intellectual Property
“Intellectual property refers to creations of the mind” (WIPO, n.d., p. 3), which include artistic and literary works; inventions; and images, names, and symbols used in commerce.
Intellectual property is classified into two categories, namely Industrial Property and Copyright (WIPO, n.d.). Industrial Property includes patents for geographical indications, industrial designs, trademarks, and inventions. Copyright, on the other hand, covers architectural designs; artistic works such as sculptures, photographs, paintings, and drawings; music; films; and literary works such as plays, poems, and novels.
Intellectual Property Law
Just like other tangible property rights, intellectual property rights allow the owners or creators of copyrighted material, trademark, or patents to benefit from their own work or from their investment in a creation. These rights are defined in “Article 27 of the Universal Declaration of Human Rights” (WIPO, n.d., p. 4). They provide “for the right to benefit from the protection of moral and material interests resulting from authorship of scientific, literary or artistic productions” (WIPO, n.d., p. 4).
Intellectual property rights can be classified as Copyright, Patent, Trade secret, and Trademark.
Copyright is a right provided to creators of original works such as computer programs, movies, articles, and books (Kinsella, 2001). It provides the owner with exclusive rights for the public presentation and performance of the work; preparation of derivative works; and reproduction of the work. Copyright automatically comes into existence as soon as the work is fixed in a tangible form and lasts for the duration of the author’s life and an additional 70 years or for a total of 95 years if the employer owns the copyright.
A patent is a property right provided for inventions, which include processes or devices that perform a useful function. A patent provides the inventor with a limited monopoly on the sale, use, or manufacture of the invention. However, abstract ideas, natural phenomena, and laws of nature cannot be patented. A patent lasts for 20 years upon filing.
A trade secret consists of any device, confidential formula, or piece of information, which provides its owner a competitive advantage for as long as the intellectual property stays a secret. Laws are used for the prevention of misappropriations of such secrets as well as for the awarding of damages for such misappropriations. This right lasts indefinitely, although it can be destroyed by independent invention, reverse engineering, and disclosure. Examples of trade secrets that must be protected are product information, business forecasts, and cost information (“Do I Have Trade Secrets?,” 2012).
Trademark is a design, symbol, phrase, or word used to identify the source of services or goods sold and to distinguish them from the services or goods of others. Trademark law prohibits the infringement of such trademark through the use of confusingly similar marks for the identification of competitors’ services and goods. Trademark right can last indefinitely, that is, for as long as the owner continues to use it. Federal trademark registration lasts for 10 years and provides for 10-year renewal terms. Examples of trademark are the names and logos of companies (“Trademark Examples,” n.d.).
Intellectual Property Theft
Historical Background on Intellectual Property Theft
Concern over intellectual property ownership has been ongoing since the time of ancient Greece (Dieterle, Greens, Powers, Rosenbaum, & Swinehart, n.d.). The unauthorized distribution and duplication of intellectual property also became an issue with the emergence of the printing press.
With pressure from the international community with regards to intellectual property protection during the 1980s and 1990s, the first international policy that concerned intellectual property right was created. “During the Uruguay Rounds, the General Agreement on Tariffs and Trade (GATT) met for the first time as the World Trade Organization (WTO)” (Dieterle et al., n.d., p. 2). Intellectual property rights became the main agendum for the meeting, which led to the establishments of the 1994 Agreement on Trade-Related Aspects of Intellectual Property (TRIPs). In turn, this agreement provided WTO with regulation of the minimum standards of protection for the various categories of intellectual property. Since the creation of TRIPs, countries who wanted to join the WTO were required to have established intellectual property laws. For example, Russia was unwilling to impose intellectual property right laws, which was a problem mainly because of a Russian website called AllofMP3.com. The site allowed users to download pirated copies of American music for a fee of less than one dollar (Dieterle et al., n.d.).
Similarly, issues on intellectual property rights came to the fore in 1999 with Napster, a website that allowed users to share music files for free. Although Napster denied that they did anything illegal, considering that the actual files were never in their possession, they were still charged with facilitating and contributing to other users’ infringement. This case then became a precedent for the numerous other websites that were accused of violating intellectual property rights.
Ethical Issues Surrounding Intellectual Property Rights
Information enables the mind to increase and expand its capacity for the achievement of a goal and is often the result of an input from another mind (Mason, 1986). As such, information forms the intellectual capital that human beings use to secure their dignity and craft their lives.
However, the building of intellectual capital becomes vulnerable when for example, the work or creation loses the creator’s personal information without the creator being compensated for the work. Intellectual capital also becomes vulnerable when people find out that the information upon which their life depends is erroneous; when intimate information is revealed; and when people are prevented from accessing information that is valuable to them. There are then four main ethical issues that surround intellectual property, and these are privacy, accuracy, property, and access (Mason, 1986).
Ethical and economic concerns revolve around intellectual property rights, given the special attributes of information and the means used for its transmission. The first instance of a piece of information can be very costly to produce. However, once produced, such information can be easily reproduced and shared with others. It can even be reproduced without destroying the original. This makes the protection of information difficult because , unlike tangible property, information becomes communicable and difficult to keep to one’s self. It even becomes difficult to obtain appropriate reimbursements when somebody else uses one’s information.
In this light, Mason (1986) asserted that information technology and the information it handled must be used for the enhancement of mankind’s dignity. He asserted that everyone must be provided with the right to their own human potential. In particular, information systems must not invade people’s privacy. Information systems must be accurate to avoid causing indignities towards people. As well, information systems should ensure the proper allocation of resources to prevent their depletion and should protect the value and importance of intellectual property “to avoid the indignities of unwitting disemmindment of knowledge from individuals. Lastly, information systems should be accessible to avoid the indignities of information deprivation and information literacy.
Proponents of intellectual property rights assert that these rights provide for the financing and incentives for creation and invention, in turn leading to social, cultural, and economic progress (International Chamber of Commerce, 2005). They claim that the protection of these rights contributes to economic growth both in developing and developed countries through the stimulation of technical development, cultural diversity, and innovation as part of a bigger policy framework. If properly used, these rights may even aid in the alleviation of poverty through trade.
Conversely, theft and the illegal use of intellectual property result in developmental, social, and economic costs that are far ranging. They affect every industry and can lead to massive drains on national economies, especially those that are still undergoing development. For example, counterfeiting and piracy lead to losses in lawful employment opportunities and tax revenues for governments (International Chamber of Commerce, 2005). Consumers are exposed to safety and health risks by unsafe counterfeit products. Moreover, there’s growing evidence that link counterfeiting and piracy operations to organized crime.
Proponents of intellectual property rights take on a deontological view where there’s a clear distinction between right and wrong and that stealing other people’s intellectual property is obviously wrong. They also take on the natural-rights view, which asserts that the mind’s creations are entitled to protection in the same manner that tangible properties are entitled to such (Kinsella, 2001). They assert that both intangible and tangible creations are the product of one’s mind and one’s labor. In addition, intellectual property rights proponents take on a utilitarian view in that they advocate for the selection and creation of policies and laws that maximize utility or wealth.
On the other hand, critics of intellectual property rights argue that even if the implementation of intellectual property rights results in increased overall wealth, this does not justify “the unethical violation of some individuals’ rights to use their own property as they see fit” (Kinsella, 2001, p. 12), that is, for example, if a person purchased a book then they should be able to use it as they see fit, which includes its reproduction. They also argue that the implementation of intellectual property rights would involve “making illegitimate interpersonal utility comparisons “ (Kinsella, 2001, p. 13) where an intellectual property’s market price “does not serve as a measure of the good’s value” (Kinsella, 2001, p. 13). In addition, they argue that there is no clear indication that intellectual property laws indeed lead to any change, whether in a decrease or increase of overall wealth. They question whether patents and copyrights are really needed to encourage the production of inventions and creative works and whether the gains obtained from innovations outweigh the costs of an intellectual property system. They argue that there may be more innovation if there were no patent laws and that more financial resources would be available for research and development if it were not being spent on lawsuits and patents. They propose the possibility that companies may see more incentive from innovating if “they could not rely on a twenty-year monopoly” (Kinsella, 2001, p. 14). In addition, they argue that those with intellectual property rights are forced to satisfy a burden of proof, which leads to the ethics and legitimacy of the use of force being questioned.
As well, critics of intellectual property rights criticize the proponent’s natural-rights view, particularly the perpetual copyright and patent, because the future heirs of the original creator are not themselves responsible for creating their ancestors’ work. The creation-based approach also provides protection for only certain types of works unless each useful idea that a person comes up with is subject to ownership. In addition, the distinction between what can be protected against what can’t be protected is arbitrary. For example, there are currently no laws for the protection of scientific, mathematical, and philosophical truth . Patents can be obtained only for practical applications but not for more theoretical or abstract ideas since a philosophical or scientific discovery of something previously unknown is not created by the discoverer. Similarly, critics of intellectual property rights argue that inventions are merely rearrangements of matter, which already exists, and that there really is nothing new being created.
Samudrala (n.d.) also argues that intellectual property rights are unethical because no information is lost even when a piece of work is reproduced. What is done to the reproduced copies does not affect the original copy. On the other hand, intellectual property prevents the modification of an intellectual property even when the modification will benefit the general public and will not cause any harm to the original creator. In the same manner, if modification of an intellectual property is prohibited then people will be forced to constantly reinvent the wheel instead f copying and modifying what’s already available. Further, Samudrala asserts that the modification, distribution, and copying of published information does not have a direct effect on compensation and that the ownership model currently used is not a required condition for attribution and compensation. For example, songs can be covered even without permission. They can also be covered in any manner and by anyone, provided the original author is paid for every distributed record. Similarly, business is not likely to be disrupted even without intellectual property rights. For example, open source software such as Linux manages to obtain substantive revenues despite being freely copiable.
Reasons for the Prevalence of Intellectual Property Theft
Dieterle et al. (n.d.) provide two explanations for the prevalence of intellectual property theft.
One is the Moral Disengagement and the Social Learning theory. The Social Learning theory centers on the learning that occurs within a social context. For example, one who sees another performing an act is likely to copy the act. It is a process that consists of a function of attitudes “that are learned and reinforced by peer groups” (Dieterle, n.d., p. 3). People copy behavior that’s observed in others; hence, stealing intellectual property is a behavior mimicked from others, making one displace the blame on others instead of on themselves. As a result, people transform something viewed by the society as immoral to something that’s moral in their own mind. As the Moral Disengagement theory proposes, one who learns behavior in a social context must disengage himself morally in order to justify their unethical actions.
Another reason for the prevalence of intellectual property theft is that it is justified by legitimate business. For example, Youtube.com contains video clips of TV shows that are copyrighted by law, but apparently, nobody is doing anything about it.
Conclusion
Intellectual property law comprises of rights that guard against the theft and the illegal use and distribution of individuals’ works or creations. In particular, these rights consist of copyright, patent rights, trademark rights, and trade secret rights.
While proponents of these rights justify their legitimacy by taking a deontological, utilitarian, and natural-rights view and claim that these rights promote innovation and economic growth, critics and opponents of such rights argue that there is no solid indication that these rights do indeed lead to economic growth. Rather, they claim that they can curtail innovation and can hinder the improvement of products and services, in turn depriving consumers of the benefits of such improvements. They also claim that it would be more cost effective to use financial resources on innovations than on costly intellectual property systems.
Aside from the ambiguity of intellectual property rights, which partly causes the lack of buy-in among people, another challenge faced by the implementation of these rights is the ethical systems of people, as explained by the Social Learning and Moral Disengagement theories.
Recommendations
It would then be recommended that for intellectual property to be effectively protected, it is important for intellectual property laws to be made clear and concrete such that ambiguities are eliminated. More importantly, however, it is important for people’s ethical systems to be developed such that they can discern for themselves whether their actions are right or wrong even in the absence of laws. This can be accomplished in the academic, home, and community settings where such values can be instilled in the people.
With the increasing number of channels and formats for self expression and innovation, it will be difficult for the law to catch up with the times such that in the end, the best way to ensure the proper use of intellectual property is for every person to take the initiative to do what is right.
References
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