Author: Howard C. Anawalt
Abstract Intellectual property is in part commercial law, comparable to laws that concern the negotiability of instruments, banking, security interests, or the interpretation of contracts. National commercial law can be contrasted with laws that prohibit dangerous or antisocial conduct, like murder, environmental pollution, or civil rights. The same contrast exists in international law. Intellectual property and other commercial treaties facilitate economic activity. Human rights treaties, environmental treaties, and the laws of war seek to impose basic norms for protection of humanity and our world.
Intellectual property rights grant monopoly control over certain practices to the “owner” of certain classes of rights. The function of a patent law, for instance, is to prevent anyone but the owner from using or profiting from a given process. The function of a trademark is to provide exclusive control over identifying marks so that others may not use them at all. In general, intellectual property divides into two main branches. One branch protects the variety of inventive works through doctrines such as patents and copyrights. The other protects the identification of goods and the “goodwill” value associated with that identification or branding.
The history of intellectual property laws manifests a balance between freedom to trade items and creation of limited monopoly rights. In England, concern with the free flow of goods traces back to the Magna Carta in 1215, which provided:
All merchants shall have safe and secure exit from England, and entry to England, with the right to tarry there and to move about as well by land as by water, for buying and selling by the ancient and right customs, quit from all evil tolls, except (in time of war) such merchants as are of the land at war with us.
That charter and its language emphasize the antimonopoly nature of commercial laws. Individuals and groups should remain free to practice their professions and trades without domination by others.
The creation of specific intellectual property laws, including patents and copyrights, occurred some four centuries later. The first of these laws, the Statute of Monopolies [hereinafter Statute], was created as a specific reaction against monopoly powers exercised by certain individuals and entities. The operation of English law and royal practices had granted monopolies to various importers and producers. For instance, Queen Elizabeth’s court favorite, Lord Darcy, appeared to have been granted a monopoly over importing and selling playing cards in England. “When Mr. Darcy attempted to enforce his monopoly against a new entrant, his monopoly was found to be illegal at common law... Darcy’s Case signaled the beginning of the end of the Monopoly System.” As abuses mounted, Parliament was compelled to take action, and in 1628 enacted the Statute of Monopolies. The Statute declared void all monopolies, commissions, grants, licenses, charters, and letters patent “for the sole buying selling making working or using of any thing within this Realm or the dominion of Wales.” The Statute created an exception allowing the creation of a short term monopoly (fourteen years) “to the true and first inventor and inventors” of new processes.
About a century later, the Statute of Anne granted qualified protection to the printing monopoly of the royally chartered Stationers’ Company against “pirates,” that is, those who would have the temerity to print materials on their own. That Statute set up the first copyright regime, granting authors a fourteen year monopoly term, which might be renewed for a second fourteen year term. The Statute of Anne also contained a consumer protection provision that allowed relief against a printer or bookseller who might sell a book “at such a Price or Rate as shall be Conceived by any Person or Persons to be too High and Unreasonable.... ”
As the markets of the world have become closely-knit, harmonized commercial law, including intellectual property rules, offers commercial advantages. Businesses can plan better, and they can expect the same laws to prevail in most places. On the other hand, nations may differ on the objectives they wish to achieve through intellectual property. Treaties creating internationally guaranteed intellectual property can have major impacts on national legal cultures and practices.
International intellectual property law has grown up on the basis of individual national choice. For example, the Paris Convention covering “industrial property” [hereinafter Convention] requires that each nation grant foreign nationals the same treatment/protection of industrial property that they grant to their own nationals. Under the Convention, “industrial property” includes patents, utility models, industrial designs, trademarks, and indications of source such as regional production. The Convention grants to union members the reservation that member states may grant compulsory licenses to patents to prevent patent abuse. The Convention preserves national independence with regard to procedural aspects. “The provisions of the laws of each of the countries of the Union relating to judicial and administrative procedure are expressly reserved.”
The Berne Convention on copyrights also obligates its member nations to accord similar protection to foreign works as they do to ones protected directly by their laws. Berne also requires certain minimum standards of copyright protection concerning the broad categories of copyrightable works. It goes into detail with regard to the kinds of works protected and the substance of the protection. However, as with the Paris Convention, the Berne Convention leaves the means of enforcement entirely to the national laws. It states that “apart from the provisions of this Convention, the extent of protection, as well as the means of redress afforded to the author to protect his rights, shall be governed exclusively by the laws of the country where protection is claimed.” Berne does provide for one mandatory procedure, the seizure of infringing copies; however, that remedy shall “take place in accordance with the legislation of each country.”
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Volume 19 Issue 2 Page 383
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