Legislation and reform, one of Prof. Vaver’s main scholarly themes, was a focus of IP Osgoode’s symposium in honour of Professor David Vaver’s appointment to the Order of Canada. The discussion around the need for reform was targeted at making intellectual property (“IP”) “more about the public” and consistent with the values of “access,” “distribution,” and “users’ rights”.
After the spate of hand-wringing among panelists about the lack of a coherent moral centre in IP laws, I thought I would play the devil’s advocate to defend the existence of one — albeit the antithesis of what reformers in general seem in all likelihood to be targeting.
From “integrated code” to “moral-centred code”
In 2009, Prof. Vaver lectured on the codification of all IP rights under one single instrument, what he called a way overdue project. The independent statutory schemes that protect different types of IP, Prof. Vaver adduced, may be doomed for want of harmonization. As a result, the unification of IP laws into an integrated code was complemplated as a solution that would likely prevent the independent statutes from falling prey to their own incoherencies with one another.
Almost a decade afar from that lecture, the scholarly panelists suggest that IP laws must progress in a more radical way. They claim that IP must (re)gain moral authority to sustain its credibility in light of current social values such as “democratized access”. In this context, public interest and fairness have arisen as the cornerstones of the IP moral centre.
What are fair IP laws?
Prof. Bita Amani, one of the scholarly panelists, proposed that fairness in IP involves, in essence, resisting property rights fundamentalism. Further, Prof. Amani explained, it involves steering away from an author-centric protective approach and focusing more on the public interest. Fair IP laws, thus, imply striking the right balance in the amount of protection warranted to inventors, so as to ease the tension between consumers and individual creators.
The pursuit of such balance, the panelists asserted in unison, have been addressed by theorists and practitioners by employing the language of “access,” “distribution,” and “users’ rights”. Justice Roger Hughes, formerly of the Federal Court of Canada, remarked that the adoption of these new paradigm expressions — which are nowhere in any IP statute in Canada except in the jurisprudence — indicate that reform is way overdue to better accommodate this new branch of rights in light of current social values.
The panelists suggested that such a development may involve subjecting IP protection and enforcement to minimum public interest requirements. This, they claimed, would favour (a) proper allocation of rights, so that the benefits of an invention would be adequately shared between those who create and those who distribute; (b) less discrimination between classes of consumers; (c) equal treatment to competitors in the market; (e) restraint on excessive price, inadequate supplies, and patent trolling; and, (f) deterrence of lobbyist and industry pressures from using innovation for political and oppressive purposes in the allocation of power and wealth.
A final recommendation from the panel was that collective values such as social justice and human rights be embedded in IP laws. That, it was submitted, is what will allow IP to stay in place. Hence, asking the right questions towards social goals was proposed as an incremental step in the process of helping IP law (re)gain its moral centre.
A contrarian view
Shifting IP moral centre all at once may nevertheless be a daunting prospect. Such a shift may represent a disincentive for inventors and, to that extent, may strike society with economic downfalls as a result of wealth and jobs cutbacks. So, when asking the right questions towards social goals, caution is needed not to impart an idea of “a whole day’s work for nix” that is prone to halt innovation.
All things considered, it seems in all fairness that IP laws do not lack a moral centre altogether. At the core of IP laws lays, at the very least, the encouragement of human abilities to create, innovate and foster significant advancements for the betterment of the society. The World Intellectual Property Organization (“WIPO”) describes ad nauseam how protection and enforcement of IP rights are vital to social development and economic growth across industries.
The mandate of minimal public interest requirements needs to be taken with a grain of salt in the face of the substantial impact that strong IP systems have on a nation’s economy.
“Fuel for the Fire of Genius or Shelf Life of a Banana”?
The panelists suggested that a broad range of social values should steer a new statutory model for IP. Under this new model, access is golden, balance is necessary, and dissemination of distribution is the chief goal. Ultimately, a framework that is not prohibitive of fair dealing is needed. They claimed IP should fashionably mimic the social justice trend in the legal system to recognize the right of people to imitate others, to allow people to compete, work, write, and talk freely, and to nurture common cultures.
While modernization of IP laws is needed, stretching its moral boundaries to cause a radical breach of the traditional scheme conceived as fuel for the fire of genius may be off limits. The current globalized marketplace shows that innovation and businesses travel swiftly across borders. As a result, it may be unwarranted to employ ill-defined, underdeveloped public interest requirements in the IP space if this may decelerate progress and make inventors’ creations tantamount to the shelf life of a banana.
Bruna D. Kalinoski is an IPilogue Editor. She has health science background from two years attending Dentistry School, holds an LL.M. degree from York University (Osgoode’s Canadian Common Law program), an LL.B. degree from the Federal University of the State of Santa Catarina, Brazil, and is a member of the Brazilian Bar Association.