Unlike other types of traditional property, intellectual property has special qualities. It is neither rivalrous nor exclusive. Therefore, the laws already in place that regulate such traditional property are inappropriate for regulating intellectual property ownership, transfer, and use. Thus, there are four different schools of thought that support intellectual property rights.
The postulation of divergent views relating to the protection of intellectual property are presented in a number of theories. These theories therefore underlie intellectual property protection, and they include:
- Natural Rights Theory
- Reward/Incentive Theory
- Economic Theory
- Social/Development Theory
Each of these theories have laid out argument as well as attendant counter-opinions. This author shall now consider them individually. In protecting your intellectual property, it is necessary to engage the services of a qualified legal practitioner and adequately consider relevant applicable laws.
1. Natural Rights Theory
This theory, also known as Labour theory, justifies the protection of intellectual property as being a natural right. Apparently, proponents of the Natural Rights theory, identify ‘exerting creativity’, the very root of intellectual productions, as labour, and protection as natural for the enjoyment of the fruit of the labour. This theory, arguably the most influential argument for property rights, emerged from the writings of John Locke, who believed in the natural entitlement to life, liberty and personal ‘labour of property’. A person’s labour and its product are inseparable, and so ownership of one can be secured only by owning the other.
The crux of the arguments against enjoying intellectual property protection as a natural right expresses the fact that intellectual productions are not the sole creation of the author. No creator creates in independence of the knowledge of others, and so every creation flows primarily from the creation of others. For instance, on September 14, 1939, the VS-300, the world’s first practical helicopter, took flight at Stratford, Connecticut, designed by Igor Sikorsky. However, the design of the helicopter dates back to 1906. And even an identified earlier design is that of Leonardo da Vinci, made in the 15th Century. It appears, therefore, that there can be no claim of sole labour, for a work resting on the shoulders of others, from which proprietary right may arise.
This author is of the opinion, however, that although the work of an author or innovator is inspired by that of another, the creator is yet naturally entitled to the fruit of his labour for his exerted creativity in expressing, performing or producing the idea.
The utilitarian theory and this theory are comparable. It holds that in order to establish a vibrant and rich cultural environment, property must be preserved. Since society is positioned at the center of both theories, they are comparable. They diverge because social planning theory exclusively addresses the advancement of culture and not economic welfare in general. This hypothesis is supported by a number of well-known intellectuals, including Michael Madow, Rosemary Coombe, Keith Aoki, Neil Netanel, and Niva Elkin-Koren.
2. Reward/Incentive Theory
Two of the earliest recorded recognition of copyright as furnishing a reward to the author for his labour was the granting of exclusive reproduction rights to Richard Pynson and John Palsgrave in 1518 and 1530 for two and seven years, respectively. The rationale behind the granting of intellectual property protection as reward or incentive is that the society owes creators a moral obligation to compensate them for their intellectual production.
Proponents against the Reward/Incentive theory have argued that the rewarding of intellectual products through granting of exclusive or monopoly right is at best an indirect reward. That is, the possession of a right to prevent others from exploitation does not automatically translate to adequate commercialisation. This author agrees with this criticism, and suggests an implementation of a better structured legal framework to not only grant exclusive rights to creators but provide for effective exploitation.
3. Economic Theory
This theory is based on the idea that the creators of intellectual properties have invested in the making of the products or expressions, and should thus be granted protection to recoup their investment. Otherwise, the activities of free riders who can provide the same product at a cheaper price and at a more expanded rate will trump and defeat any return from their investment. The legal protection of intellectual property thus help the creators by providing exclusive right to exploit their products for a specified period of time.
A proposition that may resound against the Economic theory is the contention that authors and creators have no intention of any form of recoupment, but just do what they do for the love of it. This author opines that the two reasoning are not mutually exclusive. Loving what you do does not preclude your expectation of some interest or reward on investment.
4. The Social/Development Theory
Can we live in a world without music? Or do we prefer to expunge technology and return to the stone age? These are questions that fundamentally reflect the protection of intellectual property for the social benefit of the entire society. Protection granted will enhance the urge for better innovations, more artistic, musical and literary works, holistically promoting the social interest of the society.
However, the use of intellectual property has been propounded to work against the development of developing countries, who need free flow of idea for industrial development. In the advent of protection therefore, the entire growth of the country is impeded. In this regard, this author opines that this proposition is just one side of the coin. Proper protection of intellectual property in developing societies will instigate more direct foreign investment, limit the activities of free riders and ultimately positively impact the gross domestic product of these countries, especially in Africa.
CONCLUSION
On a general outlook, the utmost necessity for the protection of intellectual property is a child of its nature. Commenting on the nature of Copyright, Justice Holmes of the United States Supreme Court stated as follow; “… It may be infringed a thousand miles from the owner and without his ever becoming aware of the wrong.”
Given this rather porous nature of intellectual property, as opposed to tangible properties, protection is inescapable and must be encouraged in all sphere and sector of the society.
