The issue regarding the protection of intellectual property is the issue of protecting the owners of certain information. Today, this matter is known in the context of what we know as "copyright law". In this law, there are two general traditions. The first is the British tradition, which is known as common law. Common law has been emulated by American law and throughout the Western world in general. Common law perceives copyright as a piece of property, which can be traded like any other commodity. In other words, intellectual property is just like material property, and it is something that is owned by an owner. The written word is just as much a piece of property as a house or a sofa chair.
The second tradition is known as Roman law, and it is practised in southern Europe and in French and Spanish speaking nations. Roman law sees copyright as a right which basically belongs to the writer, who, in turn, possesses "moral" rights over his work even after it is published. This question of "morality" is very significant, in the sense that it shows that copyright is very much about the issue of ethics. There is, therefore, more of a principle of integrity to Roman law, while a commercial right is more embedded in common law. (Feather, p.143) This is most probably the case because English law was more concerned with the issue of private property in the economic context.
Overall, both traditions operate on the same concept and share the same objectives and assumptions. Both seek to defend the writer and make it possible for him/her to win material and cultural rewards through his/her work. Moreover, common law and Roman law intend to make sure that no one tries to pass off their work as their own. Copyright law achieves this in two ways. It protects the ownership of the intellectual property through law and it sets standards by which copying occurs. (Feather, p.143) Copyright law stays in touch with the writer at all times, seeking his permission for all kinds of details after the law has been made. Thus, copyright is involved in all stages; it seeks to protect the property, and it also regulates rules over how such property is disseminated.
This issue becomes quite complicated, however, especially in regard to the fact that new technology makes copying and transmission of other peoples' work a very simple process. In all of this, it also becomes debatable what exactly constitutes taking someone else's work and what does not. There is a grey area which makes it very difficult for the law to act in certain ways.
Take the issue of a computer program, for instance. This can be considered a piece of intellectual property. But it is almost impossible to enforce the law in a matter such as this. This creates a difficulty for the law, since one can not control an individual's activity throughout an entire day and stop that person from copying a certain computer program.
Overall, however, while sometimes certain matters are unenforceable, the law works to the advantage of the owner of intellectual property. But sometimes the owner of intellectual property is hurt no matter what, since copyright laws can only do so much. For instance, the law has no choice but to relax on, let us say, photocopying rights. Document delivery services, for instance, have severely damaged the publishers' interests. The easy availability of low-price document delivery services result in libraries cancelling subscriptions to periodicals. In the end, this hurts the owner of intellectual property. It is often easier, for instance, to make a copy of a book than to buy a book. The owner of the book is then clearly being hurt, since the sale of his book dàid not occur. (Feather, p.148)
The photocopying of journal articles and the reprinting of western books elsewhere in the world illuminates this issue. The spread of information can be injured and the interests of an author can be hurt. The creators of the work, and their interests, are definitely not protected in these cases. But the question revolves around the problem of what can actually be done on issues like these. In a free society, the government can only do so much when it comes to defending property, because there is a fine line between protecting one person's rights and violating someone else's.
Thus, intellectual property law, the copyright law, is the overseer of the information market-place. It makes the rules according to the trade of intellectual property. It is designed, more than anything else, to protect the creators of information. This is based on the assumption that intellectual property, unlike other property, is so important that it deserves extra attention. It is a different phenomenon than other properties. (Feather, p.151) Indeed it is, for ideas are not just material objects.
Many significant problems arise in this whole issue of intellectual property protection. For instance, one of the complex issues in this matter involves the state's role in the storage, use and regulation of personal data. There is now a government law for data protection. Data protection is, in turn, the protection of the individual who created the data.
This problem is very much connected today with the issues connected to the Internet. There is, for instance, intellectual property on the Net, and the state must now face a whole new situation on how to protect rights in this matter. In "Hands off the Net," Michael Lynch discusses the issue of how Internet transactions should be regulated and taxed. The debate in the United States is presently between state and federal rights, as state governments want to tax electronic commerce while the federal government supports as little state intervention as possible. The federal government's position is that the state should stay out of ecommerce except to protect intellectual property and to provide a Universal Code for Electronic Commerce.
Lynch interviewed many business leaders and legislators and found that they agree with the government that self-regulation is better than government intervention. One of the people interviewed by Lynch is Randall C. Whiting, the president and CEO of CommerceNet. He sums up well what most of the business leaders and legislators seem to feel on the issue. In his opinion, there are four areas in which government must take an active role. The first is to provide the legal environment in which people can operate. The second is to protect against any illegal business dealings over the Net. The third is to use electronic commerce at all levels of government procurement. The fourth is to promote the use of electronic commerce throughout the economy. (Lynch, p.5)
Thus, overall, Lynch found that there is a tendency to be against government intervention, but support for government activism. In other words, there is support for an active government, but not an intervening one.
In "Protectionism, intellectual property, and consumer protection: was the Uruguay Round good for consumers?" Robert Mayer examines how opponents of the Uruguay Round of the GATT have argued that its ingredients endanger the capacity of individual countries to legislate and safeguard strong consumer protection measures. This issue is directly connected to the phenomenon of intellectual property, since, in the perspective of the critics, agreements regarding the non-discriminatory treatment and protection of intellectual property threaten fundamental consumer policies designed to promote consumer health, safety, and information.
Mayer demonstrates that the Uruguay Round agreements do, to an extent, pose a potential threat to consumer protection. His overall point, however, is that fee trade agreements, up until this particular time, have threatened consumer protection. (Mayer, p.1 and pp.12-13)
Thus, Mayer and Lynch both deal with the issue of protection of intellectual property, though through different examples. Mayer analyses the issue through the effect free trade has on the issue, while Lynch views the issue through the effects of the Internet. Lynch finds that there is much support for having the government stay out of intervening on the issue in the Internet matter, while Mayer sees Free Trade as not, at the moment, affecting consumer protection in terms of intellectual property.
Overall, both of these articles illuminate well the problem of the protection of the owners of certain information. Intellectual property is, in the end, just like any other commodity, and it can be traded and sold. The state simply has to be involved in this matter. The question, as we have seen, revolves around how much. Overall, there is definitely the need for the state to make sure that an author possesses moral rights over his work, as well as economic rights. Just like private property, intellectual property has to be protected. With the coming of new technologies, however, we see that the objective will become more and more difficult to achieve.
- Feather, John. "The Political Dimension".
- Lynch, Michael. "Hands off the Net", Chief Executive, Sept. 1998, n137, p.58.
- Mayer, Robert. "Protectionism, intellectual property, and consumer protection: was the Uruguay Round good for consumers?" Journal of Consumer Policy June 1998, v21, n2, p.195.