PTC FORUM

The Online Journal of the Patent, Trademark and Copyright Research Foundation

Editorial Comments

INTELLECTUAL PROPERTY AND CONSUMERS

Increased protection of intellectual property rights is challenged by several trends in public policy. As a previous editorial has pointed out [10005], one of these trends is evident in the views of the US Federal Trade Commission and, to some extent, the European and US courts, on the anti-trust aspects of intellectual property ownership. Another trend is evident in the development of consumer interests. Nearly twenty years ago, the distinguished editor of International Copyright Law, Stephen Stewart, lamented the encroachment of "consumerism" on the rights of copyright owners; and a distant echo of his theme may be found in the report of attempts by publishers in India to persuade consumers of the need to respect copyright protection (see [20059]). Part of the problem is that the value to consumers of intellectual property protection is far from self-evident: with one important exception, intellectual property law is not intended to benefit consumers directly. The exception is trade mark law, in which, whether in statutes or in judgments, references to the interests of consumers are common; this is particularly true of the circumstances in which the question of confusing similarity arises. Otherwise, like other property laws, intellectual property law is mainly for the benefit of property owners. There is nothing wrong with that. Moreover, to the extent that intellectual property rights encourage investment and reward creativity, they may be expected to have an indirect or long-term benefit to consumers as well, in terms of new products, new services, new books, new music and new drama.

However, consumers may also benefit from restrictions placed on the exclusivity or monopoly enjoyed by intellectual property rights. In the European Union, for example, the exercise of intellectual property rights is generally subordinated to the principles of free movement of goods and services: consumers benefit from lower prices when legitimate parallel trade is permitted. In the short term, they may also benefit from illegitimate trade: counterfeiting and piracy can mean cheaper goods, not necessarily combined with inferior quality. But, in the longer term, it is not too difficult to persuade consumers that counterfeiting and piracy are against the interests of consumers as well as of the parties whose intellectual property is stolen. It is more difficult to persuade consumers that intellectual property rights should be strengthened, if there is a risk that this may result in excessive pricing or in a more limited access to the goods or services in question; and it may well be impossible to persuade them that the resources of the Internet, the joy of which is that nine-tenths of them are free, should be subject to increased protection.

It follows that intellectual property owners are faced with a double challenge from what Dr Stewart called consumerism - a phenomenon which he hoped would go away, but which has in fact grown and continues to grow. The first is the need to explain to consumers the rationale of intellectual protection in a clear and persuasive way, without either legal jargon or an unsubstantiated acceptance of traditional legal assumptions. (The PTC Research Foundation plans to make a contribution to this process.) The second is the possible need to make some reasonable concessions to consumer interests, without damaging the essential principles of legal protection or the importance of investment. In the patent field, there may be scope for doing so, particularly in the pharmaceutical, tele-communications and computer technology sectors. In the copyright field, owners may actually see benefits to themselves as well as to consumers through an extension of the doctrine of fair use and a greater readiness to make available free of charge, in the interests of publicity and commercial goodwill, more copyright material. There are certainly other possible concessions worth considering, on the basis that, while they do not seriously undermine legal protection, they convince consumers that exclusivity and monopoly do not have to be pejorative words. Protests against the World Trade Organisation in Seattle were directed among other things against intellectual property: owners of intellectual property have an opportunity to pre-empt any similar protests in the future. [10007]