JUSTIFICATIONS FOR COPYRIGHT AND PATENTS PROTECTION

by
Victoria C. Onyeagbako, ACIArb

1. INTRODUCTION

Intellectual Property (IP) Law is concerned with legal rights associated with creative
efforts or commercial reputation and goodwill.1 It governs the acquisition, regulation and
enforcement of intellectual properties in any given jurisdiction. According to the Supreme
Court of the United Kingdom there is a general consensus as to the core contents of
intellectual property but none as to its limits.2 Generally, the core fields of IP include
copyright and related rights, patents, trademarks, industrial design, geographical
indications and reaching to plant variations and traditional knowledge. 3 What unites
these rights which fall under the rubric ‘intellectual property’ is that the subject matter of
protection is intangible.4 More specifically, the three central Intellectual Property Rights
(IPRs) are Copyright, Patent and Trademarks:5
IPRs have been described as negative rights.6 What this implies is that these rights
rather than confer on a right- holder the ability to exploit his IP, deters or retrains others
from the use of or exploitation of such IP without license of the right- holder. This is
because a right- holder does not require IP protection to personally exploit an intellectual
property.

A historical survey of the evolution of intellectual property can be traced as far back as
the evolution of our species when for tens of centuries IP existed in a primitive form
such as the early man creating impressions on the walls of his caves creating among
others; man’s first artistic works, tools carved out of stone as a means of survival for

1
David Bainbridge, Intellectual Property (9th Edition Pearson Education Ltd 2012) p 3
2
Phillips v News Group Newspapers Ltd [2012] UKSC 28; [2013] 1 AC 1 [20]
3
Tanya Aplin and Jennifer Davis, Intellectual Property Law: Text, Cases and Materials (3rd Edition Oxford University
Press 2017) p 1
4
The concept of ‘intangibility’ remains an uncertainty as the definition and scope of intangible subject matter may
prove problematic. However, intellectual property rights unlike tangible or real properties are incorporeal.
5
William Cornish, David Llewelyn and Tanya Aplin, Intellectual Property: Patents, Copyright, Trademarks and Allied
Rights (8th Edition Sweet and Maxwell 2013) p 7
6
Ibid 6
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hunting or harvesting of crops which marked man’s first inventions (patent).7 The early
man was also said to have drawn pictures depicting his struggles particularly in relation
to his hunting expeditions.8 These when interpreted told the stories of a caveman which
is presently referred to as ‘authorship’ in copyright. Furthermore, man has been known
to associate products or services to a given origin through the use of marks in a given
market by thumbprints or other primitive symbols on herds of cattle, leather, books,
swords, pottery and so on.9 This is the underlying nature of trademarks which has
ostensibly evolved over the years beyond mere association of goods and services.

The various fields of IP have massively developed or expanded and have attracted global
attention. The development of commercial aspects of intellectual properties and
consequent high rate of infringement led to the clamour for protection and recognition of
intellectual creations as property rights. There are numerous theories justifying the
protection of IPR and monopoly attached thereto. Consequently, some of these schools
of thought have been largely criticised as the protection afforded to IPRs arguably stifle
the growth of prevalent national and international trade relations by granting monopolies
to right- holders. The various theories justifying the existence of IPRs such as copyright
and patents and their inherent nature as rights are herein canvassed.

I. NATURE OF COPYRIGHT

The history of copyright is very complex. Depending on one’s interest, it is possible to

highlight various theories.10 Although works of copyright were in existence and can be
traced back to the history of man, copyright law did not take on its modern meaning as
a discrete area of law until the mid- nineteenth century.11 Copyright as a property right is
regulated by national laws such as Copyright, Designs and Patents Act (CDPA) 1988 and
Copyright Act, CAP 28 Laws of the Federation of Nigeria 2004 in the United Kingdom and
Nigeria respectively.

7
Amir Khoury, Intellectual Property and You [2010] Washington, U.S Patent and Trademark Office 27
<https://heinonline.org/HOL/P?h=hein.intprop/ipyou0001&i=43> accessed 8 January 2020
8
Ibid
9
Ibid
10
Lionel Bentley, Brad Sherman, Dev Gangjee and Phillip Johnson, Intellectual Property Law (5th Edition Oxford
University Press 2018) p 37
11
Brad Sherman, Remembering and Forgetting: The Birth of Modern Copyright Law (1995) 10 IPJ 1
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Copyright unlike other fields of intellectual property law requires fewer formalities as a
work need not be registered by a creator to enjoy copyright benefits. 12 The essential
requirement is that a work is original, in that it constitutes an independent creation of
the author which presupposes the existence of labour and skill. 13 The principle of
‘originality’ in copyright is developed by judge made law upon consideration of the
peculiarities of each case presented before the courts. 14 Copyright is interested in the
expression of ideas and not the underlying ideas in themselves.15

The subject matter of copyright is regulated by national and international laws and
include literary, artistic, dramatic and musical works and by extension, performing rights,
choreographic works, broadcasting and recording. These are cumulatively known as
author and neighbouring rights respectively. An important feature of copyright protection
is the need for ‘fixation’ which stems from the need for an ‘expression’ of an idea. 16 This
simply requires the expression of a work in a tangible or permanent form. Copyright
confers two types of rights; economic and moral rights which are enjoyed for a limited
period of time, usually the life time of the author and 70 years after.17

II. NATURE OF PATENTS

According to the World Intellectual Property Organisation, a patent is the grant of

exclusive rights over an invention; a product or a process that provides, in general, a
new way of doing something or offers a new technical solution to a problem and is often
referred to as a monopoly right.18 Patent protection requires full disclosure of the
invention lodged with the appropriate authority in exchange for the grant of exclusive
right to commercial exploitation of the invention for a limited period of time. Like
copyright, the patents system of every country is governed by national and international
and/or regional treaties and conventions on patents. In the United Kingdom, the patent
system is regulated by the Patents Act 197719in pari materia with relevant provisions
contained in the CDPA 1988. The Nigerian Patents framework is regulated by the Patents

12
Article 5(2) Berne Convention for the Protection of Literary and Artistic Works 1886
13
Paul Torremans (n 12) 175
14
Case C-5/08 Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16
15
Designers Guild v Russell Williams Textiles Ltd [2000] 1 WLR 2416; Kleeneze Ltd v DRG (UK) Ltd [1984] FSR 399
16
Paul Torremans (n 12) 176
17
Section 12, Copyright, Designs and Patents Act 1988
18
World Intellectual Property Organisation, <https://wipo.int/patents/en> accessed 9January 2020
19
As amended by the Patents Act 2004 (by the Regulatory Reform (Patents) Order 2004 (SI 2004/2357)
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and Designs Act, CAP P2 Laws of the Federation of Nigeria 2004. Some of the prominent
regulations and international patent treaties are:
 European Patent Convention (EPC) 1973;
 Patent Co-operation Treaty (PCT) 1970;
 Patent Law Treaty 2000;
 Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS)
1994;20 and
 Convention on Biological Diversity (CBD) 199221
The conditions for patentability are stipulated under national laws. However, the
following constitute generally accepted criteria for patentability of an invention as:22
a) It must be new;23
b) It must involve an inventive step and
c) It must be capable of industrial application;

For an invention to qualify as novel, it must not constitute ‘state of the art’ which
comprises all matter (product, process or any information relating to either) which has
been made available to the public, before the priority date24 of the invention.25

2. JUSTIFICATION FOR THE EXISTENCE OF INTELLECTUAL PROPERTY RIGHTS

SUCH AS COPYRIGHT AND PATENT

Following the expansion of intellectual property rights, the nature of intellectual property
rights protection and its propensity to result in a monopoly, various justifications for the
protection of these rights have been propounded. Certainly, not one justification is

20
TRIPS forms part of the agreements establishing the World Trade Organisation (WTO) and bind all WTO member
states including the UK and EC who have been members since 1st January 1995. It sets out minimum standards
with respect to substantive patent law- Article 27- 34; Tanya Aplin and Jennifer Davis, Intellectual Property Law:
Text, Cases and Materials (2nd Edition Oxford University Press 2017) p 550
21
CBD was signed at Rio de Janeiro on 5 June 1992. Pursuant to Article 1, its aim is the conservation of biological
diversity, sustainable use of its components and the fair and equitable sharing of benefits arising out of the
utilization of generic resources. By Article 16(1) contracting parties undertake to provide and/or facilitate access
for and transfer to other contracting parties of technologies, including biotechnology, that are relevant to the
conversation and sustainable use of biological diversity.
22
Biogen Inc v Medeva Plc [1997] RPC 1; Windsurfing International Inc v Tabur Marine (Great Britain) Ltd [1985]
RPC 59 at 73-74
23
Kirin- Amgen Inc v Transkaryotic Therapies Inc [2005] 1 All ER 667 at 98
24
This determines the cut-off for determining what is included in the ‘state of the art’ and refers to the date on
which an application is filed; see Section 5 Patent Act 1977.
25
Jennifer Davis, Intellectual Property Law (4th Edition Oxford University Press 2012) p 289
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encompassing on all rights and without limitations and/or criticism. Justification must be
found, however, for a state to lend its aid to intellectual property right holders. 26
There exists plethora of hypothesis or theories underlying the existence, rationale and
utility of intellectual property rights. For our purposes, these are broadly described and
classified thus:

 Prevention of deceitful and fraudulent practices;

 Moral/ Natural right theory;
 Incentive/ Reward theory; and
 Human Rights

a. Prevention of deceitful/ fraudulent practices and unjust enrichment

This theory of justification is user-centered with focus on harm, misrepresentation and

unjust enrichment. This justification is by extension interested in the effect of non-
protection of intellectual properties on the members of a society. It is a simple
justification frequently invoked for appealing to common sense because the act of
‘reaping without sowing’ is generally frowned upon.27 Intellectual properties require the
investment and application of intellectual prowess in the attainment of consequent
result. In the absence of intellectual property protection, the personal and material
application of the creative few in a society will only result in lack of creativity and
redundancy in a society. New inventions and/or creations may be utilised without care or
fear of quality and origin. Misrepresentation, piracy and counterfeiting will be the order
of the day. In effect, a system where unauthorised users of an invention receive the
benefit(s) which otherwise should accrue to an inventor is created. Lack of protection,
indiscriminate utilisation and manufacture of new creations are some potential harm(s)
on users caused by substandard reproduction of these inventions.28 This results in lack of
creativity at large. To prevent envisaged harmful effects of non-protection, positive
rights must be created by the government to protect intellectual properties.
According to Spence, this theory is more problematic because the principle against
reaping without sowing is not absolute since subsequent creators only imitate, adapt and

26
Michael Spence, Intellectual Property (Oxford University Press 2007) p 45
27
Ibid (n 3)
28
A succinct example is the effect of substandard pharmaceutical inventions in the absence of pharmaceutical
patents.
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expand on existing works.29 Spence further states that this principle turns out to be one
which can apply only once it has been determined on other grounds that a creator ought
to be able to exclude others from the use of the work and adds nothing to the
substantive justifications of intellectual property protection.30 This theory although
intrusively appealing, is not entirely persuasive as it does not clearly stipulate when
enrichment at another’s expense is unjust but relies on labour principle of natural rights
for a stronger claim.31

b. Moral/ Natural right theory

According to this school of thought, the existence of intellectual property is hinged on

the proposition that a creator ought to own that which is a creation of the creator’s
mental power. This theory, also referred to as deontological theory, is said to accord
with the view of renowned philosophers on property rights such as John Locke’s labour
theory.32 Locke introduces the idea of work or labour and entitlement thus:
“Though the earth, and all inferior creatures be common to all men, yet
every man has a property in his own person. This nobody has any right
to but himself. The labour of his body and the work of his hands, we may
say, are properly his. Whatsoever, then, he removes out of the state that
nature hath provided and left it in, he hath mixed his labour with it and
joined to it something that is his own, and thereby makes it his
property…”33

The first justificatory strand reflected in the moral/ natural rights theory is that all
resources given by God to the exclusion of one’s own body are part of the ‘commons’
which God has endowed every individual with the ability and right to use. Where, then,
one has worked on such resources mixed with labour, such property forms part of that
person’s personal or private property.34 Applying Locke’s theory to intellectual property,

29
Micheal Spence, ‘Justifying Copyright’ in Daniel McClean and Karsten Schubert, Dear Images: Art, Copyright and
Culture (Manchester Ridinghouse 2002) p 389-403 at 395-6
30
Ibid
31
Tanya Aplin (n 3) 4.
32
Justin Hughes, The Philosophy of Intellectual Property, (1988) 77 Geo L J 287; Helen Norman, Intellectual
Property Law (2nd Edition Oxford University Press 2014) p 89
33
John Locke, Two Treatises of Government, Second Treatise (3rd Edition Cambridge University Press 1988) p 287-
288
34
Graham Dutfield and Uma Suthersanen, Global Intellectual Property Law (Edward Elgar Publishing Limited 2008)
p 54
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it can be said that every person has property right to their intellectual labour.35 Lawrence
Becker suggests that various social norms may generate a need in the creator for
identification with and ownership of an intellectual property such as the need for control
over use because of investment (material and personal) made in the course of
production or the need to secure autonomy.36

It generally appears unjust and against natural law to deprive a creator or an inventor of
the privileges which will otherwise accrue to a creation of mental application. It is for this
reason that intellectual properties must be protected by the state through enactment of
laws to regulate the exercise and protection of intellectual property rights. The moral/
natural rights justification is predominantly adopted for copyright and patents protection.
Other lines of argument closely associated with the natural rights theory are the desert
argument,37 personal autonomy38 and personhood.39

This theory has been criticised for applying Locke’s theory of property to intangible
property as it is not clear that the total value of an intellectual creation is entirely
attributable to the ‘labour’ of an individual, an imprecise tool for designating the
boundaries of intangible objects.40 According to Hettinger, a right- holder may be
rewarded by gratitude, awards and public financial support as opposed to exclusive
rights of ownership over such intangible properties.41 The concept of moral/ natural
rights is burdened with uncertainties as to application or scope.

35
Tanya Aplin (n 3) 6
36
Lawrence Becker, Deserving to Own Intellectual Property (1993) 68 Chicago-Kent L Rev 628, also available
at<https://pdfs.semanticscholar.org/c2dc/a6a2b40f3e18891707af3b0541f6fbf5711b.pdf> accessed 6 January
2020
37
A claim that the creator of a work deserves control over its use; Lawrence Becker, ‘Deserving to Own Intellectual
Property’ (1993) 68 Chicago-Kent L Rev 628
38
The value of personal autonomy must involve recognising the right of control over things of close association
such are intangible properties; Tanya Aplin and Jennifer Davis, Intellectual Property Law: Tests, Cases and
Materials (3rd Edition Oxford University Press 2017) p 63
39
This posits that the act of creation entails the choice of expression, anembodiment of the creator’s personality.
Control over the creation becomes necessary to secure the creator’s personality; Margaret Jane Radin, ‘Property
and Personhood’ (1982) 34 Stan L Rev 957; Justin Hughes, ‘The Philosophy of Intellectual Property’ (1988-9) 77
Geo L J 287 at 330
40
Ibid (n 38)
41
Edwin Hettinger, Justifying Intellectual Property (1989) 18 Philosophy & Public Affairs 31; also available at
http://hettingern.people.cofc.edu/Hettinger%20-%20Justifying%20Intellectual%20Property.pdf accessed
6.1.2020
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c. Incentive/ Reward theory
One of the traditional theories for the justification of intellectual property protection
especially in relation to copyright and patents is the incentive/ reward theory. This
theory is described as a utilitarian view supported by Jeremy Bentham’s theory of
utilitarianism which argues that laws are socially justified if they bring the greatest
happiness, or benefit, to the greatest number of people. 42 Another theory closely
associated but utterly misconceived is the contract/ consideration theory.43

This is an economic approach to the need for protection of intellectual properties. This
theory posits that the exclusive right to utilise intangible property is required to stimulate
intellectual creativity. There exists an understanding that the creation or invention of
intangible properties result from the personal application and investment (fiscal or
otherwise) of the creator. As a result, investment should be stimulated by the presence
and enforcement of positive laws that provide a framework ensuring that the publication
of new works, research and development, manufacture and marketing of new products
may yield a return on that investment.44 It is logical that an inventor requires utmost
maximisation of profit accruing to an investment in property; tangible or intangible. The
idea of incentivising a creator to further apply mental ability into creation is not only
beneficial to the creator but to the economy at large. There are numerous benefits of
intellectual properties to an economy; economic growth, technology advancement in
areas such as telecommunications and transportation, increased prosperity and
employment, improvements in healthcare by the introduction of patents to
pharmaceuticals and so on.45 This theory found favour in the United States and is duly
established by Article 1, s. 8 of the United States Copyright and Patents clause of the US
constitution 1789 (as amended) which states thus:
“… to promote the progress of science and useful arts, by securing for limited
times to authors and inventors the exclusive right to their respective writings
and discoveries”.

42
Tanya Aplin (n 3) 13.
43
Contract/ consideration theory suggests a contract between the state and an inventor/ creator for the transfer
of invention to the state in exchange for IP protection for a given period. The consideration theory was canvassed
by Jacob J in Phillips Electronics NV v Remington Consumer Products Ltd [1998] RPC 283
44
David Bainbridge, Intellectual Property (10th Edition Pearson Education Limited 2019) p 21
45
Ibid
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Similarly, the 2001 European Commission (EC) directive on copyright is justified based
on stimulation of creative content.46 This is based on the understanding that if the
government fails to encourage creativity through its intellectual property laws, no one
would engage in original creations. The grant of intellectual property rights such as the
monopoly by patents for a limited period is a means to an end- economic progress.47

This theory of justification has been criticised as having its motivation as the community
benefit rather than appreciation for the inventor. This is evident in the grant of a patent
only to the ‘first to file’ to the exclusion of all other inventors such as the first to invent
and independent inventors.48 Professor Michael Pendleton shares the opinion that
existing IP rights such as patent amount to unjustifiable monopolies which can be
avoided through the adoption of an all embracing law of valuable commercial
information as a means of incentivizing inventors, replacing specific rights with wide and
subjective economic discretion.49 It is argued that the foundational belief of this theory is
superfluous as IP rights guarantee protection for inventors but not motivation as
innovation is stimulated by various independent factors such as interest.50 This argument
stems from an understanding that motivation is more internal than external. In the
absence of exclusive rights to an intellectual creation, there remains the presence of an
inherent motivation by which an inventor creates. Furthermore, contrary to that which
the incentive/ reward theory suggests, extrinsic rewards stifle creativity. With regard to
the transfer of knowledge and open source technology in a society, Ghosh argues that
even where positive rights encourage creation, there remains the question of whether
strong rights promote the distribution and consumption of the fruits of intellectual
property as to achieve ‘greater good’.51

46
Recital 2, EC Directive 2001/29/EC of the European Parliament and of the Council of 22 May 2001; based on
Articles 47(2), 55 and 95 of the Treaty establishing the European Union.
47
Chiron Corporation v Organon Teknika Ltd (No 10) [1995] FSR 335 at 332
48
Catherine Colston and Kristy Middleton, Modern Intellectual Property Law (2nd Edition Cavendish Publishing
Limited 2006) p 43
49
Michael Pendleton, Intellectual Property, Information Based Society and a New International Economic Order-
the Policy Options [1985] EIPR 31
50
Colston (n 51) 45; Eric Johnson, ‘Intellectual Property and the Incentive Fallacy’ (2012) 39 Fla St U L Rev 623
51
Shubha Ghosh, ‘The Intellectual Property Incentive: Not So Natural as to Warrant Strong Exclusivity’ (2006) 3
SCRIPTed 96
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d. Human rights
Unlike other theories, the link between intellectual properties and human rights is a fairly
recent development.52 This argument posits that intellectual properties ought to be
considered ‘property rights’ entitling right- holders to protection. It goes beyond the
consideration of intellectual property to the right of a person to own and dispose of
personal property in such a manner as considered necessary. This theory draws its
strength from international conventions such as the Universal Declaration of Human
Rights (UDHR) 1948, International Covenant on Economic, Social and Cultural Rights
(ICESCR) 1966 and certain Regional legislations such as the Charter of Fundamental
Rights of the EU 2000/C 364/01 and European Convention on Human Rights 1950. The
relevant provisions of these legislations are reproduced hereunder.
Articles 17 and 27 of UDHR state thus:

Article 17:
(1) Everyone shall have the right to own property alone as well as in association
with others. (Emphasis added)
(2) No one shall be arbitrarily deprived of his property.

Article 27:
(1) Everyone has the right to freely participate in the cultural life of the community,
to enjoy the arts and to share in scientific advancement and its benefits.
(2) Everyone has the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which he is the author.
(Emphasis mine)

The UDHR remains a landmark agreement in the history of human rights protection, a
reason it is reckoned on in the human rights implication of the protection of intellectual
properties. Article 27(2) in clear terms provides for what is regarded as the economic
and moral rights of an author. This implies that intellectual properties should be
accorded the recognition and protection of human right and non-protection should be
construed as a breach of right to property. To further illustrate this point, Article 15 of
ICESCR provides:

52
Tanya Aplin (n 3) 9
10

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 “Everyone has the right to benefit from the protection of the moral and
material interests resulting from any scientific, literary or artistic
protection of which he is the author”.

By the preamble of the UDHR, all member states are obliged to adapt and/or replicate
these provisions on human rights protection in their national laws. This suggests that
creators and inventors, in the absence of stipulated IP laws, may validly protect and
claim against an infringer.

In the European Union, Article 1, Protocol 1 ECHR and Article 17(1) and (2) of the
Charter of Fundamental Rights of the EU both recognise that intellectual property falls
within the scope of the ‘right to own, use, dispose of and bequeath one’s lawfully
acquired possessions.53

Like other theories, the argument to treat intellectual property as human right has been
criticised on various grounds. According to Peter Yu 54, the inclusion in the human rights
debate of a relatively trivial item like intellectual property protection would undermine
the claim that human rights are of fundamental importance to humanity. Other writers
such as Ostergard, opine that the United Nations Declaration is flawed as intellectual
properties are not all significant in the physical well-being of a person and as such,
issues relating to physical well-being must take priority over guarantee of IP as a
universal human right.55 Furthermore, the declaration of IP as human right is more
problematic as IP protection raises barriers to commodity access beneficial to physical
well-being and national development.56
Irrespective of these criticisms, the Court of Justice of the European Union (CJEU) has
been seen to invoke this theory in aid of intellectual property protection.57

53
Tanya Aplin and Jennifer Davis, Intellectual Property Law: Tests, Cases and Materials (3rd Edition Oxford
University Press 2017) p 9
54
Peter Yu, ‘Ten common questions about intellectual property and human rights’ (2006) 23 Ga St U L Rev 713
55
Robert Ostergard, ‘Intellectual Property: A Universal Human Right’ (1999) 21 Hum Rts Q 175
56
Ibid 176
57
C- 277/10 Martin Luksan v Petrus Van der Let Case [2013] ECDR 5
11

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3 CONCLUSION/ RECOMMENDATION

Although not one theory of justification for the protection of intellectual property rights is
all- encompassing, the plethora of texts on the justification of intellectual property
protection, to a large extent evidences the necessity of the subject matter. The
importance of protection afforded to intellectual properties cannot be over-emphasized.
The criticisms of most theories adopt a technical approach in analyzing a prevalent
loophole of a theory. Intellectual Properties are an undeniable practical constituent of
every society.
This writer agrees with the utilitarian justification to the extent that it amounts to quid
pro quo for parties; a right- holder, a user and the government. It is a lesser evil for the
government to grant positive rights to creators and inventors at little or no cost than to
actively reward every inventor for a valuable invention. The determination of that which
is ’valuable’ becomes subjective; a situation of uncertainty. Safe to say that a positive
law approach protects members of the public from fraudulent misrepresentation such as
wrongful attribution of authorship of a work or harmful reproduction of substandard
medicines and medical equipment(s).

In response to the Pendleton critique and in concurrence with Professor Cornish 58 taking
a competition dimension, enacting loose-end laws as opposed to the grant of specific
rights may become a weapon by which first entrants into a successful market can
engage in legislative bullying of competitors seeking to enter the market. This is because
for the right-holder there are endless possibilities to that which can be claimed.
Furthermore, reacting to ‘inherent motivation’ critique over reward, it is submitted that
although absence of economic rights may not exterminate the presence of internal or
inherent motivation, the effect of material gains over creativity cannot be ignored.
Intellectual properties are no doubt creations of the mind, largely fuelled by interest and
passion. However, in the absence of fiscal gains or returns, necessary materials through
which research is conducted may be unavailable, thereby hampering the level of
creativity attainable. An inventor is also motivated to work hard to earn a living off that
which he creates. Taking away exclusive rights to utilise and control intellectual creation
falls nothing short of slavery and/or theft by a government over its subjects.

58
William Cornish, ‘Genevan Bootstraps’ [1997] EIPR 336
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A consideration of the protection of intellectual property as universal human right begs
the question- is intellectual property a property right properly so-called? It is my
submission that intellectual properties are distinct from real properties as they are
intangible. The intangible nature of IP, given the rapid advancement of technology and
use of the internet endangers IP by encouraging indiscriminate copying, abuse and
infringements. It is for this reason that great attention has been sought and attracted in
respect of intellectual property protection by academics and IP officials.

Finally, the various projections of justification theories of intellectual property protection

and resulting critiques have not amounted to the rejection of IP protection. As
established, the various fields of intellectual property protection have expanded in scope,
application and protection over the years. This may be consequent upon the
immeasurable benefits of the presence of intellectual properties adequately protected by
positive laws; national and international. Effective registration and protection measures
have been adopted such as the international trademarks 59 and patents systems60
administered by the World Intellectual Property Organisation (WIPO) to enhance
intellectual property protection over a wider range of countries. While the efforts of
international organisations such as WIPO is commended, mechanisms for proper
education and enlightenment of the benefits of IP protection especially in developing and
under-developed countries through the incorporation of intellectual property law in
university curriculum, seminars and webinars is highly recommended.

© Victoria C. Onyeagbako 2020

For more information

Email- victoria@myiplawguide.com
Tel- +447564731428
Whatsapp- +2348036313220

59
Instituted by the Madrid Agreement 1891 for an International Trademark System (registration and
management) and provides trademark protection over 122 countries through filing a single application in a
member state; more information at WIPO website <https://www.wipo.int/madrid/en/> accessed 11 January 2020
60
Introduced by the Patent Co-operation Treaty 1970; more information available at the WIPO website
<https://www.wipo.int/pct/en/> accessed 11 January 2020
13

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 Bibliography

Cases
UK cases
Aerotel Ltd v Telco Holdings Ltd [2006] ECWA Civ 1371, [2007] RPC 7

Biogen Inc v Medeva Plc[1997] RPC 1

Chiron Corporation v Organon Teknika Ltd(No 10) [1995] FSR 335

Designers Guild v Russell Williams Textiles Ltd[2000] 1 WLR 2416

Kirin- Amgen Inc v Transkaryotic Therapies Inc [2005] 1 All ER 667

Kleeneze Ltd v DRG (UK) Ltd [1984] FSR 399

Phillips Electronics NV v Remington Consumer Products Ltd[1998] RPC 283

Phillips v News Group Newspapers Ltd[2012] UKSC 28, [2013] 1 AC 1 [20]

Windsurfing International Inc v Tabur Marine (Great Britain) Ltd[1985] RPC 59

EU cases
Infopaq International A/S v Danske Dagblades Forening(C-5/08) [2009] ECDR 16
Martin Luksan v Petrus Van der Let Case (C- 277/10) [2013] ECDR 5

Statutes
UK Statutes
Copyright Act 1710

Copyright Act, CAP C28 Laws of the Federation of Nigeria 2004

Copyright, Designs and Patents Act 1988

Patents Act 1977

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Charter of Fundamental Rights of the European Union of 7 December 2000 OJ C 364/01

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Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) (15 April 1994)
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accessed 11 January 2020

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<www.wipo.int/pct/en/> accessed 11 January 2020

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