23 March 2008

How justified are differences in IP duration?

Ever thought about the reasons why copyright protégés have been able to extend the duration of the copyright law in many countries now to 70 years after the death of the author while patents are lagging behind? Why can’t get patent owners more than a scanty 20 year legal protection after the date of filing while their copyright counterpart enjoy the law’s protection for more than three times longer? It crossed my mind re-reading the European Court’s September 2007 judgment in Merck Genericos vs. Merck. The case was about a provision in the Portuguese patent law maximizing patent protection to 15 years rather than 20 years, as is provided for in art. 33 of the TRIPs Agreement. The issue then was whether this article has “direct effect” in national (in casu Portuguese) law and can be applied directly by a national court. The Court held that as patent law in Europe, although in many ways uniformed, is still not “community law”, national courts can choose whether or not to give direct effect to that provision.

So a patchwork on terms for duration of intellectual property rights exist, not only between IPRs (copyright vs. patent protection) but also within IPRs (patent laws in different countries). Intellectual property right being an economic property right there are no doubt economic reasons to justify the difference. Take copyright law: an extended term of protection may generate twenty more years of commercial revenue for many economically viable works. Driven by US lawmakers and lobbyists, its not hard to see why. Much of US revenue may come from foreign countries where many novels, motion pictures, and other U.S. works find a market. The economic argument translates not only into greater revenues for U.S. copyright holders, but also into the subsequent tax revenues, employment prospects, and shareholder profits that accompany expanded business. First Monday, a “peer-reviewed journal on the internet”, cites Prof. Crews[1] in that if those revenues are derived from foreign markets, the strengthened protection and longer term of protection for copyrights may also help shift the balance of international trade in favor of the US.

In contrast to the economic and domestically pragmatic arguments, prof. Crews sees several respects in which strengthened IPRS do not include a corresponding balance of the public interest. Recognizing that, in its origins, copyright law was intended to achieve a balance between preserving a public domain or commons of ideas and providing incentive for creative endeavors, he suggests the former is neglected in the trend toward maximizing duration terms of IPRS.

Why then is the copyright term so much longer than for patents? How “limited” should the duration be to effectuate the appropriate balance between reward to authors and inventors and the public domain? Traditionally benefits for longer copyright protection have been defended by arguing that this would enhance incentives for authors and artists to create. But why would that be different with technological innovations? I would rather argue the opposite. Many innovations would deserve a much longer duration of protection than some literary works. Why would the inventor of a now widely used technology, the first practical visible-spectrum LED (Light Emitting Diode, the bright screen in many electronics products) Nick Holonyak, Jr of General Electric, see his invention of 1962 long run out of patent protection, while had he copyright, would have still enjoyed his legal privilege?

[1] K.D. CREWS, Harmonization and the Goals of Copyright: Property Rights or Cultural Progress? in 6 Ind. J. of Global Legal Studies, 1998, 117 ff.

1 comment:

Anonymous said...

I think that the difference is due to the type of protection that each affords. With a patent, you are protecting the substance; no one can use what you claim, period, without your permission. With copyright, you are not protecting the substance so to speak, you are protecting the expression of it. Anyone can read a book and then use that knowledge, even repeat that knowledge in their own works (giving proper credit of course) but they cannot literally "copy" the page from the book without permission. I think that is one reason why copyright endures for a longer period: the scope of protection is really alot less, being only the expression of the material.