legal protection intellectual property

Rationalising the Legal Protection of Intellectual Property – Tunmise Adesina

Tunmise Adesina is a penultimate Law Student at the Obafemi Awolowo University, Ile-Ife, Osun State, Nigeria. He is a Human Rights and Intellectual Property Law enthusiast.

How Rational is the Rationale for the Legal Protection of Intellectual Property?

The Legal Rights of intellectual property is a branch of legal studies that has engendered several debates over the years. On the international fora, the protection of intellectual property rights spearheaded by the World Intellectual Property Organization (WIPO) has never been more challenging, given the most obvious challenge of the implementation of intellectual property laws across the board, both in the developed countries, developing countries and the least developed countries are like.1

However, the legal protection of Intellectual Property rights is confronted by a much more fundamental question; fundamental in the sense that the question goes down to the root of the field itself. The question, “how rational is the rationale for the legal protection of intellectual property” does not examine a branch of intellectual property, ( copyright, trademarks e.t.c) but it consists of a critical examination of the raison d’etre for the existence of Legal Protection of Intellectual Property Rights in the first place.

Thus, this work will briefly consider the concept of intellectual property rights, and also it will look into the justifications for the legal protection of Intellectual Property rights; arguments for and against these justifications. In the end, this work would have drawn out its very essence– the extent to which the rationale for the legal Protection of Intellectual Property is justifiable.

The Concept of Intellectual Property

Various attempts have been made by scholars in the field of intellectual property to find a definition of the term, intellectual property. It has been defined as “legal rights which result from the intellectual activity in the industrial, scientific, literary and artistic fields”2 Brainbridge and David3 have defined “IP” as that area of law which concerns the legal rights associated with creative effort or commercial reputation and goodwill”. Adejoke O. Oyewunmi4 found that Intellectual Property may be defined as Legal rights conferred on those who engage in creative, inventive, and promotional activities which have resulted in original, useful, or other beneficial output.

In essence, ‘Intellectual Property’ tacitly imposes a proprietary interest in works produced by the exertion of man’s intellect. Intellectual Property Law is a step further to canonize these interests as having the legal effect needed to ensure their enforceability.

According to the Convention Establishing the World Intellectual Property Organization,5 intellectual property shall include rights relating to literary, artistic, and scientific works; performances of performing artists; phonograms and broadcasts; inventions in all fields of human endeavour; scientific discoveries; industrial designs; trademarks, service marks, commercial names, and designations; protection against unfair competition; and other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields.6

These rights are generally bifurcated into two categories: Copyright and neighbouring rights on the one hand, and industrial property rights on the other hand.

Justifications for the Legal Protection of Intellectual Property Rights

The morality of giving makers of intellectual property the legal authority to exclude others from the substance of their works is a hotly debated topic in information ethics, law, legal theory, philosophy, and policy. This argument seems to be supported by the question of why exclusive rights should be granted in a free market with relatively high levels of competition.7 While it appears that there is a consensus of acceptance in the case of tangible assets like chattels and land, the consensus breaks down with regard to works of purely intellectual form.

In practical terms, it is considered that the economic justifications for copyrights and patents differ from those for trademarks.8 The necessity to offer a financial incentive for the creation of public goods like inventions and expressive works is the foundation for copyrights and patents. Since creative works and innovations often contain information, which is fundamentally good for the public. Copying such intellectual property would result in less expense for competitors than for the creator, which would lessen the required incentive for the creation of creative works and have a negative impact on society as a whole.

Inventors operate in a highly uncertain environment and cannot predict ex-ante if the research and development process will produce the desired outcome.9 They also don’t know how the invention will fare in the marketplace. However, subsequent copiers face no such dangers because they enjoy the benefit of being able to reproduce only those inventions with a track record of commercial success are risk-free.

In contrast to copyrights and patents, trademark protection aims to increase competition among manufacturers and service providers. Trademarks foster competition in two related ways by indicating the source of goods and services. First, trademarks give businesses the opportunity to notify customers about the quality level of their goods and services, lowering the cost of the search.10 In the case of “experience goods,” products whose characteristics customers cannot identify before acquiring them, where consumers rely on prior experience to decide between competing brands, this informative role of trademarks is particularly valuable.

Second, trademarks give customers the opportunity to link certain characteristics of goods and services to certain businesses and then make purchasing decisions on this linkage. Because of this, trademark protection encourages businesses to uphold and enhance the quality of their goods and services on the supply side.11

It is perhaps from these practical advantages that a number of theories underlying them have been developed. Some of these theories are; The economic theory, the natural rights theory, the reward/incentive theory, and the development theory.12 We will consider this in seratim:

The Economic Theory

As a component of the innovation system, the intellectual property regime seeks to promote innovation by enabling inventors to limit the use of knowledge created by enforcing benefits in exchange for its use and so gives the possibility of a return on investment. This hypothesis, according to Adejoke Oyewunmi, holds that if everyone were permitted to exploit the outcomes of innovative and creative activity without restriction, intellectual work creators might not be able to repay their investment due to the actions of free riders like copiers and mimics.13

Creatives must undoubtedly be compensated in a market, profit-driven economy, in order to be encouraged to innovate. The processes of innovation, research, and development are expensive. Investments in “R & D” and innovation outcomes will therefore require further protection to give businesses time to recoup their costs and remain motivated to make additional investments. Also, the decrease in the time and effort required by consumers to find the specific brand of product they want is an additional economic benefit to consumers, which ensures that consumers can be assured of getting the quality products alone14

The Natural Rights (Labour) Theory

John Locke’s labour theory, sometimes known as the “Lockean theory,” is one of the theories that has had a considerable impact on how states have protected intellectual property rights.15 The theory contends that since humans can utilize labour to secure their ownership rights over natural resources, others have a moral duty to uphold such rights. Locke observed that: “The labour of his body and the work of his hands, we may say, are strictly his. So when he takes something from the state that nature has provided and left it in, he mixes his labour with it, thus joining to it something that is his own; and in that way, he makes it his property.”16Because many resources cannot be used in their natural states, people must put effort into them to turn them into private property and increase their worth.17

However, inherent in this labour right is the duty owed to society that such labour would be made available for others to share in times of great need.18

It should however be stated that this theory has certain limitations stated clearly in the proviso as “Labour being the unquestionable Property of the Labourer, no Man but he can have a right to what that is once joyned to, at least where there is enough and as good left in common for others.” These clauses aid in establishing a distinction between the public’s claim to common property and the labourers’ entitlement to property in civil society. Aravind19 has aptly captured these limitations in three different parts:

  1. The Waste Limitation: A property owner who has the right to use the resources should not waste them or use more than is necessary. Since the property owner is required to take only what is necessary, this restriction appears to ensure that there is essential equality that is granted to all. No owner is permitted to wastefully depreciate their property in the condition of nature.20 As a result, the proviso, for instance, might prevent a misanthropic cancer cure inventor from erasing her notes.21
  2. Limited Protection to the Public: This proviso emphasizes that the public is only afforded a certain amount of protection. If the owners’ property rights do not infringe on the rights of the consumers using the common area, then these consumers would not have a claim against the owner, and the owner might enforce their property rights against them without any burden.
  3. The enough-and-as-good-proviso: According to Locke, appropriation is acceptable, “at least where there is enough, and as good left in common for others”. The concept behind this clause is that the owners will only have the right to that property provided the grant of that property does not interfere with the public’s or others’ ability to use or consume any property in the public domain.

The Natural Rights theory as evinced by the great philosopher can only be inexhaustibly discussed here, but it suffices to state that the essence as it applies to Intellectual Property rights is to ensure that makers of intellectual works benefit from the exertion of their intellectual work and that a free-riders do not “reap where he has not sown.”22

Reward/Incentive Theory

According to the traditional interpretation of incentive theory, the author or inventor of creative or innovative work or invention should be rewarded in order to motivate them to produce additional creations or innovations. It also encourages the disclosure or spread of knowledge in order to inspire others to create new discoveries or contributions that will ultimately benefit society through the advancement of science and the arts. According to conventional thinking, incentives in intellectual property law provide the inventor with a financial benefit to promote socially beneficial artistic, scientific, or technological innovation.23

Critics, however, have questioned whether people were incentivized to develop in the pre-copyright and pre-patent eras. Additionally, who is actually being incentivized today—the entrepreneur, the investor, or the industry? Thus, it is concluded that the encouragement of more and more inventions is not always provided by the issuance of IP but rather depends on other circumstances.24 Also, critics are of the further opinion that creators are not necessarily in need of rewards and incentives to do what they do. This view considers that the development of intellectual works such as artistic designs, and literary or industrial works by creatives are only a way of escape, thus truly talented people will always, as of necessity create. This view, respectfully, is not correct, while one may concede that talented creatives are serial creators, it is doubtful that creators of IP works can commit great effort, conscientiousness, and financial inputs to developing ideas without any assurance of protection for their works. Some of history’s greatest inventors such as Thomas Edison, Nikola Tesla, and Henry Ford could possibly not have been able to pioneer some of the World’s greatest inventions if they never had some sort of legal shield in the form of exclusive benefit from the product of the exertion of their intellect.

Development Theory

Scholars have also considered the framework of IP as a means to develop the socioeconomic and technological well-being of society.25 It has been observed in the multilateral agreement which culminated in the TRIPS agreement as follows:

Undoubtedly, the requirement for large volumes of commerce as a stimulant to achieve greater levels of growth and development remains the primary motivation behind developing countries’ interest in participating in the multilateral trade system… Intellectual Property as enshrined in the TRIPS agreement directly implicates a vital and consistent demand by developing countries, namely, the freedom to use trans-border technology flows to accomplish socio-economic objectives. The merger of trade and intellectual property under the Uruguay Round is thus for developing countries a matter of means rather than ends26

Thus, proponents of this view have held that the protection of Intellectual property would be justified if a commensurate value is enjoyed by the society. This again seems to be in line with Locke’s view that makers of intellectual works should, to a certain reasonable degree, enjoy exclusive rights to their intellectual works, “at least where there is enough, and as good left in common for others.”

Conclusively, while some socialist and radical critics have advanced counterarguments upon the premise that the idea of authorship and inventorship is so malleable, contingent, and “socially constructed,” and thus, we should be cautious about associating a creative work with a specific person or entity in a way that is overly close to them;27 and their democratic theorist counterparts offering a post-modernist critique of intellectual property law, argue that the power of people to express themselves is limited by the developing field of intellectual property protection,28 we may safely submit that in practice, it is within the bounds of logic and rationality that intellectual property rights be recognized, not only because of the reward for makers of intellectual works but also because it seeks to ensure economic stability and a level playing field for fair competition in a fast developing technologically and commercially driven world.


1 See H. Chang and I. Grabel, Reclaiming Development: An Alternative Economic Policy Manual (New York, USA: Zed Books, 2004) 38, advocating inter alia, a relaxed approach to intellectual property law by governments seeking development.

2 WIPO Intellectual Property Handbook (2nd Ed. WIPO Publication No 489) Geneva. 200

3 Brainbridgee and David, intellectual (6th edition. Essex: Pearson 2007)

4 Nigerian law of Intellectual Property, Adejoke O. Oyewumi LL.B (ife), LL.M (Lagos), LL.M.I.P/ (Pierce Law USA) Ph.D. (Ife)

5 Conferencing Establishing the World Intellectual Property Organization (WIPO) of 1967

6 Article 2 (viii) of the WIPO Convention.

7 Neil Natanel (1996) “Copyright in a Democratic Civil Society”, 106 Yale L.J 283; Oyewunmi A.O Nigerian Law of Intellectual Property

8 Towards an Integrated Theory of Intellectual Property Gideon Parchomovsky University of Pennsylvania Carey Law School Peter Siegelman University of Connecticut School of Law

9 Supra

10 Phillip Nelson, Advertising as Information, 82 J. Pol Econ. 729. 730 ( 1974)

11 Trademark Law: An Economic Perspective William M. Landes; Richard A. Posner Journal of Law and Economics, Vol. 30, No. 2 (Oct. 1987), 265-309

12 Oyewunmi A.O Nigerian Law of Intellectual Property

13 Supra

14 Intellectual Property Rights: An Economic Approach Livia Iliea,* a Lucian Blaga University of Sibiu, Faculty of Economic Sciences, 17 Dumbrăvii Avenue, Sibiu 550324, Romaniz


16 John Locke, SECOND TREATISE OF GOVERNMENT, (Jonathan Bennett ed., 3rd edn., 2008

17 Oyewunmi A.O supra

18 Wendy Gordon, “A Property Right in Self Expression: Equality and Individualism in the Natural of Intellectual Property”, (1993) 102 Yale Law Journal, 1533 at 1543


20 “[H]e wasted not the common stock; destroyed no part of the portion of the Goods that belonged to others, so long as nothing perished uselessly in his hands.” Second Treatise of Civil Government John Locke (1690) at 299-300

21 Wendy J. Gordon, A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property, 102 Yale L.J. 1533, (1993)

22 International News Services v. Associated Press, (1918) 248 U.S 215 at 239

23 Jessica Silbey, Creative Culture, Innovating Ways, and Intellectual Property Law note 7, at 34-40.

24 Oyewunmi A.O supra

25 Ruth L. Gana “Prospects of developing countries under the Trips Agreement” [1996] Vanderbilt Journal of Transnational La, Vol 29 No 4 p. 735 at 737

26 Aoki, Keith (1993-1994), ‘Authors, Inventors and Trademark Owners: Private Intellectual Property and the Public Domain (parts 1 and 2)’, 18 Columbia – VLA Journal of Law and the Arts, 197-267

27 Netanel, Neil W. (1996), ‘Copyright and a Democratic Civil Society’, 106 Yale Law Journal, 283-287


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