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 contributes to innovation and development outcomes. In a series of three articles, she discusses the meaning of IP fairness in international law, and what relevance morality has in IP.
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 are applicable to almost all economies, regardless of their stage or state of development.
Intellectual Property and Innovation policies and rules have the potential to influence (whether 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 negative effects may include high costs of accessing or obtaining proprietary content, or difficulties for early stage innovators to fully market their capital output in local and international markets. In all these dynamics, fairness and morality in IP law are cross-cutting themes.
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 is 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 production in different countries or regions. Smart phones that use patented technology is an illustration of this geographically transnational 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 fundamental 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 greater 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, 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. An international harmonization of rules 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, relate to the set of principles that apply in the development, monetisation and management of IP content – but in a way that produces the least discriminatory outcomes. The notion of least discriminatory outcomes involve approaches to IP laws that do not produce significant barriers to the entrance of new players in consumer markets; promotes 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 IP provide exclusive time limited rights to owners, while providing terms on which can access protected content. In this context, some level of discriminatory market behaviour can is likely to happen. IP legal frameworks may also use exclusionary language to limit who may participate in specific ventures; thereby reflecting another type of discriminatory behaviour. For example, patent boxes offer lower corporate tax rates to qualifying patents or functionally equivalent patents but exclude trademarks and traditional copyrighted works from its parameters. It is therefore accepted that some form of discriminatory behaviour is permissible in global IP markets and can be considered as “fair”, if other policies are in place to mitigate its impacts.
Next article in series: A look at Morality in Intellectual Property Law