Author: Marsha Simone Cadogan,
Marsha developed an assessment tool to measure the implications of fairness and morality principles in how international intellectual property law works in countries. IP law and policy contribute to innovation and development outcomes. In this article, she discusses the concept of fairness in IP law and policy.
It is difficult, if not impossible, to develop a universally accepted tool to measure fairness and morality in international intellectual property law without defining the meaning of these principles. In the context of this note, universal means policy-focused principles that apply to almost all economies, regardless of their stage or state of development.
Intellectual Property and Innovation policies and rules can influence (positive or negative) several relevant aspects of our economies. When positive, IP rules add to crucial knowledge in economies, creating opportunities for innovation in areas such as health, education and commerce. The adverse effects may include high costs of accessing or obtaining proprietary content or difficulties for early-stage innovators to market their capital output in local and international markets fully. Fairness and morality in IP law are cross-cutting themes in all these dynamics.
There are two justifications for a coherent and universal definition of fairness and morality in IP – one that applies to all economies. Trends in and the nature of global trade are the first justification for a single meaning of the two terms. Commerce has mostly moved away from an inward-looking domestic activity to one that crosses transnational and international borders. The pandemic has made this more apparent.
To this end, global value chains have become increasingly relevant in consumer markets as production, product development stages, and distribution channels are dispersed across countries. For IP-intensive businesses, this is no different, with many firms carrying out aspects of their products in other countries or regions. Smartphones that use patented technology illustrate this geographically global trend, in which components of the device are made in various parts of the globe. The dynamics between IP and international trade may work better when there is little or no divergence in how underlying IP principles are defined between jurisdictions.
The second justification is in the normative role of IP in economies, which is focused on fostering creativity and innovation towards the more significant objectives of promoting human, social and economic development in economies. Understanding fairness in IP policy (and firstly, a workable definition) helps to re-orientate contentious debates about the strength, relevance or adequacy of IP rights towards finding workable solutions to accessing and creating knowledge and building institutional capacity in economies.
This is especially important as economies strive towards advancing sustainable development goals in their domestic policies. How IP laws are interpreted and applied, a firm’s ability to rely on or comply with IP rules and the compatibility of domestic and international trade rules to the goals of IP-intensive businesses are essential considerations when linking IP with sustainable development goals. International harmonization of regulations on fairness and morality helps to build consistent approaches to how IP works in economies and, ultimately, its role in sustainable development.
IP fairness, then, relates to the principles that apply in the development, monetization and management of IP content – but in a way that produces minor discriminatory outcomes. The notion of least-biased outcomes involves approaches to IP laws that do not have significant barriers to entering new players in consumer markets; promote innovative ventures and linkages with IP.
Fairness also means that power politics should not work to dis-advantage the less sophisticated party involved in IP transactions. Interpreting IP fairness in this way runs the risk of being seen as an ideal. Several challenges to how IP works in practice across nations can be traced to power and economic imbalances (and sometimes cultural differences) between parties. For example, in the context of international trade, many emerging countries accepted robust IP provisions into domestic law, notwithstanding their consequences to local innovators.
Most IPs provide exclusive time-limited rights to owners while providing terms on which they can access protected content. In this context, some discriminatory market behaviour is likely to happen. IP legal frameworks may also use exclusionary language to limit who may participate in specific ventures, thereby reflecting another discriminatory behaviour. For example, patent boxes offer lower corporate tax rates to qualifying or functionally equivalent patents but exclude trademarks and traditional copyrighted works from their parameters. It is therefore accepted that some form of discriminatory behaviour is permissible in global IP markets and can be considered “fair” if other policies are in place to mitigate its impacts.