Francis A. Wayo is a Law Student and WIPO Academy alumnus. He has keen interests in intellectual property and Human Rights.
Phone: +234 810 687 7966
Email: [email protected]
How rational is the rationale for the legal protection of Intellectual Property?
This essay examines the rationale behind the rationality for the legal protection of Intellectual Property (IP) through a discussion on how the protection of IP via copyright, patents, traditional knowledge, traditional cultural expressions, et al. benefits the society. Particularly, the recognition of the role of IP as an instrument of societal development is considered with reference to the National Intellectual Property Policy and Strategy which portrays the justification for the legal protection. Also, a theoretical exposition is made vis-à-vis a practical application and examination of the various theories underlying the justification for IP protection with reference to judicial authorities, scholarly opinions and facts. The conclusion drawn from the discussion supports IP protection notwithstanding the many criticisms which are rebutted therein.
World over, Intellectual Property (IP) has become a buzzword due to the recognition of creativity and innovation as drivers of development. As it is said that “you do not bite the hand that feeds you,” the protection of intellectual works becomes a categorical imperative to drive change and development. However, this legal protection exacerbates concerns as can been seen in the recent case of Google LLC v Oracle American Inc1 wherein Justice Breyer observed as follows:
Copyright and patents, the Constitution says, are to “promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries…” At the same time, copyright has negative features. Protection can raise prices to consumers. It can impose special costs, such as the cost of contacting owners to obtain reproduction permission. And the exclusive rights it awards can sometimes stand in the way of others exercising their own creative powers.
In light of the foregoing background, this paper shall address the question on how rational is the rationality for the legal protection of IP.
Basically, IP refers to creations of the mind, that is, everything from works of art to inventions, computer programs to trade mark, designs, and other commercial signs.2 According to Sodipo, “IP protects the products of human intellect including artistic and technological creations and inventions.”3 This protection creates legal rights resulting from intellectual activity in the scientific, literary and artistic works as contained in Article 2 (vii)of the Convention Establishing the World Intellectual Property Organization 1967 (Wipo Convention).
By virtue of Article 2 (vii) of the WIPO Convention, Articles 1, 2, and Part II of the Convention for the Protection of Industrial Property 1883, Convention for the International Protection of Literary and Artistic Works 1886, and the World Trade Organization Agreement onTrade-Related Aspects ofIntellectual Property (TRIPS) 1994 respectively, IP covers copyright, neighbouring rights, patents, utility models, trade marks, geographical indications/appellations of origins, trade secrets, new plant variety, traditional knowledge (TK) and traditional cultural expressions (TCEs).
The Rationality for the Legal Protection of IP
The justification for the protection of IP hinges on two basic propositions: the recognition of the right of creators/inventors and the promotion of public interest4 as creativity and innovation form the bedrock of civilisation. In ascertaining the rationality for IP protection, these twin objectives are prevalent in every argument as balancing the interest of the individual creator/inventor versus the public is considered tantamount. How rationale this reason for IP protection is can be viewed from both consequentialist and categorical imperative perspectives. Based on the former, the result of IP protection makes it rational due to the fact that it encourages creativity and innovation which are the means by which society advances. The legal protection becomes imperative based on the moral obligation of giving labourers their due and for the fact that it drives development in all facets of human life.
Worth noting, all the various forms of IP benefit the society, hence the justification for their protection. With respect to copyright, the US Supreme Court held inter alia in Feist Publication Inc. v. Rural Television Services Co,5 that copyright benefits society as the author’s reward merely secures the benefit. It is this protection that sustains the knowledge economy as well as the entertainment sector as creatives are encouraged to do more. Similarly, the grant of patent is very important as technological solutions proffered by inventors are necessary for human development. An example is the pharmaceutical industry which provides for all kinds of medicines. Notably, it is through IP protection that this sector survives as drug patents enables patent holders to recoup resources spent in coming up with products. This protection encourages research and development which in turn produce outcomes for the benefit of the society.
As an instrument of development, various types of IP like TK, TCEs, geographical indications (GIs) and appelllations of origins have the potentials of moving a society forward and this is well considered in the Nigeria’s National Intellectual Property Policy and Strategy (NIPPS) which has the mission to promote a comprehensive and conducive IP ecosystem as a catalyst for harnessing the full potential of IP for socio-cultural development and economic sustainability. Already, Nigeria is blessed with abundant TK, TCEs and Gis. An example of a TK and TCEs is the Tiv Kwagh-hiir, which has been inscribed by the United Nations Educational, Social and Cultural Organisation on the “Representative List of Intangible Cultural Heritage of Humanity.”6 With IP protection, the Kwaghir-hir and other traditional assets likes dodo Ikire, Kunu aya, Garri Ijebu, kilishi, amongst others will be harnessed to give maximum economic benefits by using TK, TCEs and Gis. Particularly, NIPPS emphasises the potential of commercialising traditional medicine (TM). All these facts undoubtedly make the legal protection of IP a reasonable thing to cherish and strive for.
Aside the economic impacts, the protection is reasonable because it is a way of protecting the rich cultural values of a nation. With adequate IP protection, misappropriation of African traditional cultures will be limited. Notably, traditional African societies stand to gain from IP protection as this is evident in the rise of Afro music and Nollywood. IP projects a nation and society to the international community, and this attracts investment and economic progress.
Although the protection of IP is often criticised on many grounds like morality and the fact that the monopoly granted limits access to vital information and resources, it is nevertheless irrational. IP laws recognise the essence of promoting common good as public policy is at the heart of protection with fair dealing, compulsory licensing, and other conditions for protection are used as means of achieving the public policy objective. Although moral concerns about IP are heavy, some property law scholars hold that morality and property rights are undeniably interconnected and that one could not functionally exist without the other.7 Under trade mark and patent, for instance, registration can be rejected for a mark or invention which is contrary to morality and public policy. Even under copyright law, which is considered not to care about morality, jurisdictions like America allow for a defence of obscenity, and the courts are reluctant in protecting obscene contents. For example, an order of seizure was rejected by the US court in Devils Films, Inc. v. Nectar Video8 on the basis that the purported copyrightable work consisted a core hard ponorgraphy bereft of any plot. In addition, even trade secrets are considered to be based on commercial morality as the misappropriation of trade secrets is deemed immoral under certain moral theories such as Kantian formalism.9
Gleaning from the foregoing, it can be well said that the legal protection of IP is indeed rational, notwithstanding the criticisms. In furthering this discussion, various theories shall be considered in a bid to acssertain several other justifications of the rationality for the protection of IP. Worth noting, the theories are not without pitfalls as balancing the private versus public interest is not always easy as this is analogous to a sword: serving as a protective shield for one party while cutting through the flesh of another.
Natural Rights (Labour) Theory
The natural rights or natural law theory, which is traced to John Locke,10 justifies the protection of IP on the basis that creators and inventors have a right over their creations and inventions just as a man who cultivates a yam farm would have right over it as his property. The theory posits that a labourer has a natural right to their works and to “enjoy the fruits of their labours, even where the labours are intellectual.”11 The fact that a person spent time, energy and other resources in coming up with an invention or creative work is rational to give him/her right over it to bar others from stealing or abusing it.
Notably, this theory leans towards a moral justification as Sodipo noted that the development of IP rights is rooted in natural law, human rights and fairness,12 and this is recognised by Article 27 of the Universal Declaration of Human Rights 1948 and Article 15(3) of the International Convention on Economic, Social and Cultural Rights 1966. Article 27 thereof provides that “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.” Judicially, Belgore J has averred in Yemitan v. Daily Times Nigeria Ltd13 that “the right of a man to that which he had originally made… must be protected.”
A major backdrop of this theory is the position that intellectual works are not created from a vacuum. Every supposed new creation is inspired by a pre-existing work. For example, Chinua Achebe’s celebrated novel, “Things Fall Apart” derived its title from William Butler Yeats’ poem, “The Second Coming.” Also, inventors rely on pre-existing inventions to create new ones as Isaac Newton said that “If I have seen further, it is only because I stand on the shoulders of giants.”14 Thus, granting an exclusive right to a person over what he has obtained from others may seem not rational for common good.
The challenge with the above rebuttal is that labour does not necessarily mean creating something out of nothing. Even in intangible property, people rely on others. For example, the making of a table by a carpenter requires relying on the knowledge of prior carpenters. Thus, if IP is not to be protected because creators and inventors rely on pre-existing knowledge, the conclusion will be that a carpenter has no property right in the table he makes.
Another area where this theory raises eyebrows is the ownership in cases of TK, TCEs, traditional medicine and genetic resources which originally belong to a community. In such cases, granting IP protection to a person to the exclusion of others does not meet up with the objective of promoting the public interest. However, the protection of TK and TCEs recognises communal ownership and is a way of protecting indigenous cultural assets from misappropriation.
The Economic Theory
The justification for the protection of IP under this theory is premised on the position that protecting the rights of the creators/inventors will foster economic development. To this end, the theory takes a consequentialist approach as the effects of protecting IP makes it rational. For instance, the United States Chamber of Commerce 2022 Global IP Index shows that countries that make a conscious policy decision to invest in more effective IP protection reap the economic benefits.15
Also, as a catalyst of economic development, IP protection drives foreign direct investment (FDI), promotes research and development (R&D) and technology transfer and acquisition. For instance, 412 billion was staked by foreign investors on 35 Nigerian tech startups in 2021.16 In addendum, it enables the development and growth of Small and Medium-scale Enterprises (SMEs), which are vital to economic growth and rely heavily on IP protection.
Conversely, the absence of legal protection gives rise to free riding and piracy which in turn deter investment, creativity, invention, and innovation, thus hampering economic development. For example, the Director General of the Nigerian Copyright Commission said in 2019 that Nigeria loses N918 trillion annually to piracy,17 which is partly the result of ineffective IP protection.
While the theory is laudable, it can be criticised on many grounds. First, IP protection benefits advanced nations to the detriment of poor nations which is the reason why nations like the US have been at the vanguard of this cause.18 Another challenge is that the legal protection of IP stifles economic development through the granting of monopolistic rights19 to people who create market scarcity by hiking prices and hoarding information. For example, AT &AT, a US company collected patents in order to ensure its monopoly on telephones.20 This act slowed down the introduction of radio for some twenty years. Thus, it suffices to note that excluding others from enjoying from such works is not beneficial to the overall economic well-being of the society.
Notwithstanding the foregoing criticisms, it is my humble submission that IP remains a driver of economic development, and it can only drive the economy forward when there is legal protection. The recognition of this necessity is evident in the draft Nigeria’s National Intellectual Property Policy and Strategy with the vision of “utilising intellectual property for sustainable national prosperity.” Perhaps, IP laws are not silent on the interest of the public as exceptions like fair use and compulsory licensing are created towards meeting the public policy objective amidst the protection of IP right holders.
The Reward Theory
Under this theory, the legal protection of IP is rational because it is a means of rewarding creative and inventive activities.21 This was aptly stated by Justice Reed in Mazer v Stein that “sacrificial days devoted to… creative activities deserve rewards commensurate with services rendered.”
As stated earlier that every justification for the protection of IP is weighed by striking a balance between the individual interest versus public interest, it has been observed with respect to this theory that the reward system benefits both the IP right holder and the society. Thus, the court postulated in the case of William T. Graham v. John Deere Co. of Kan City22 that the patent monopoly was not designed to secure the inventor his natural right in his discoveries: instead, it was a reward, an inducement, to bring forth new knowledge. A more elaborate justification of IP protection by this theory can be gleaned from the words of Lord Mansfield in Sayre v Moore23 when he gave the rationale behind copyright protection that:
We must take care to guard against two extremes equally prejudicial: the one, that men of the ability may not be deprived of their just merits, and the rewards of their ingenuity and labour; the other, that the world may not be deprived of improvements, nor the progress of the arts retarded.
A major argument against this theory is that the conferment of property rights in itself, and without more, offer at best, a potential reward hence there is no need for granting exclusive rights. Also, commentators like Fisher argued that even without IP protection, the natural inclination and love for creativity and innovation; the prestige enjoyed by artistic and scientific innovators, and academic tenure would be sufficient to sustain current levels of production.24
Although creators and inventors are naturally predisposed to doing what they love, it is my submission that without a reward system, many will go to the grave with their talents, denying the society great benefits. For instance, it is the absence of a good reward system in Nigeria that is fueling brain drain as creators, inventors and scholars are keen to migrate or “japa” (as fondly called) to countries where there is better reward system. On the flip side, the booming of the Nigerian entertainment industry is due to the reward system, and this justifies IP protection.
As stated thereof, creative and inventive works are considered invaluable assets to the advancement of society. Therefore, the legal protection of IP is rational on the basis that it serves as a way of incentivising creatives and inventors. This is firmly captured in the preamble to the WIPO Convention which reads inter alia that in “desiring, in order to encourage creative activity, to promote the protection of intellectual property throughout the world…” By serving as incentives, people are able to recoup their expenditures through royalty systems, licensing, and assignment of IP assets. Notably, without this protection, society will stand to lose the benefits of new inventions. In the case of patents, people disclose their inventions on the condition that they will be protected hence the incentive to disclose theory.
The challenge with this theory is that the monopoly may hamper development as IP protection may be used to conceal useful information and inventions. This is the case with trade secrets as the public is barred from accessing them. Mark Lemy considers the incentive story as a necessary evil as the grant of exclusive rights permits creators to charge supra-competitive prices, thereby depressing consumption. However, the IP system makes provisions wherein information must be disclosed to the public.25 Every protection has a duration after which the work falls in the public domain. Notably, the incentive that IP protection gives to creators stimulates and encourages them to do more, and the more creativity and innovation, the more society progresses.
Social Theory/ Development Theory
IP protection serves as a form of social contract between society and the creator. Just like the incentive to disclose theory, the grant of the monopoly of rights ensures that the invention is not hidden. Therefore, this social relationship ensures that society benefits from a person’s creations and inventions, and they are not lost with a person when he dies.
For the development theory which is an emerging one, the protection of IP is considered a means to the desired socio-economic and technological development. This is justified on the basis that society receives commensurate value from the grant, and IP laws as drivers of socioeconomic development and the realisation of human rights should be designed and implemented as such.26
Based on the above discussion, the legal protection of IP is necessary for societal development, and there can be no better justification than the position that creativity and innovation are the fons et origo of every civilisation and development. Thus, protecting this source is pivotal while ensuring that the twin objectives are met. Like the earlier dictum of Justice Breyer in Google LLC v Oracle American Inc (supra), IP protection can be like a two-edged sword, hence protection must be well guarded in encouraging creators and promoting public welfare at the same time so as to curtail the misuse of the rights at the detriment of the society.
1 593 U. S. _ (2021)
3 Bankole Sodipo, The Oracle, Intellectual Property & Allied Rights, The Knowledge Economy and the Development Agenda (Inaugural Lecture, Babcock University 2015) 2
4 Adejoke Oyewunmi, Nigerian Law of Intellectual Property (University of Lagos Press 2015) 8–14
5 499 U.S. 340–349–50 (1991)
6 UNESCO, “Kwagh-Hir Theatrical Performance” <https://ich.unesco.org/en/RL/kwagh-hir-theatrical-performance-00683 > accessed 28 December 2022
7 Carol M. Rose, The Moral Subject of Property (2007) 48 Wm. & Mary L. Rev. 1897, 1902–03
8 29 F. Supp. 2d 174 (S.D.N.Y. 1988).
9 Christine Haight Farley, “A Research Framework on Intellectual Property and Morality” In Handbook on Intellectual Property Research. Edited by: Irene Calboli, Maria Lillà Montagnani (Oxford University Press)
10 Oyewunmi (n 4)
11 Douglas Baird, “Common Law Intellectual Property and the Legacy of International News Service v. Associated Press (1983) 50 U. Ch. L. Rev 411 at 413
12 Sodipo (n 3)
13  FHCR 186 at 190
14 Sticky Wickett, “The Weight of Giants” (2004) 117 J Cell Sci, 5711 <https://journals.biologists.com/jcs/article/117/24/5711/27983/The-weight-of-giants > accessed 27 December 2022
15 Kelly Anderson, ‘5 lessons from the 2022 International IP Index” <https://www.uschamber.com/intellectual-property/5-lessons-from-the-2022-international-ip-index > accessed 27 December 2022
16 Yinka Kolawole, ‘Foreign investors stake N412 billions on 35 Nigerian startups’ (Guardian, November 2021) < https://www.vanguardngr.com/2021/11/foreign-investors-stake-n412bn-on-35-nigerian-startustarup/amp/ > accessed 27 December 2022
17 This Day, ‘NCC: Nigeria Loses $3bn Annually to Piracy’ (2019) < https://www.thisdaylive.com/index.php/2019/04/26/ncc-nigeria-loses-3bn-annually-to-piracy/ > accessed 27 December 2022
18 Brian Martins, “Against Intellectual Property” (1996) 1 JIPR, 257 <https://documents.uow.edu.au/~/bmartin/pubs/95psa.html > accessed 27 December 2022
19 Mark A. Lemy, “Ex Ante versus Ex Post Justifications for Intellectual Property” (2004) U.C.L.R, 129
20 Brian Martins (n 18)
21 Harunrashid Kadri, “Understanding the Theories of Intellectual Property in the Contemporary World – An Overview” (2020) 6 C.W.L.R, 467
22 383 U.S.1 (1996)
23 (1785) 1 East. 36In 102 ER
24 William Fisher, “Theories of Intellectual Property” <https://www.google.com/url?q=https://cyber.harvard.edu/people/tfisher/iptheory.pdf&sa=U&ved=2ahUKEwiWgcvg8Zn8AhUV7rsIHYDnDHMQFnoECAgQAw&usg=AOvVaw28nwmUHiBfBc-PoUSQNyy5 > accessed 27 December 2022
25 Lemy (n 19)
26 Oyewunmi (n 4)