International Intellectual Property, Progress, and the Rule of Law

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I. INTRODUCTION: DEVELOPMENT OF INTELLECTUAL PROPERTY

Intellectual property is in part commercial law, comparable to laws that concern the negotiability of instruments, banking, security interests, or the interpretation of contracts. National commercial law can be contrasted with laws that prohibit dangerous or antisocial conduct, like murder, environmental pollution, or civil rights. The same contrast exists in international law. Intellectual property and other commercial treaties facilitate economic activity. Human rights treaties, environmental treaties, and the laws of war seek to impose basic norms for protection of humanity and our world.

Intellectual property rights grant monopoly control over certain practices to the "owner" of certain classes of rights. (1) The function of a patent law, for instance, is to prevent anyone but the owner from using or profiting from a given process. (2) The function of a trademark is to provide exclusive control over identifying marks so that others may not use them at all. In general, intellectual property divides into two main branches. One branch protects the variety of inventive works through doctrines such as patents and copyrights. The other protects the identification of goods and the "goodwill" value associated with that identification or branding. (3)

The history of intellectual property laws manifests a balance between freedom to trade items and creation of limited monopoly rights. In England, concern with the free flow of goods traces back to the Magna Carta in 1215, which provided:

All merchants shall have safe and secure exit from England, and

entry to England, with the right to tarry there and to move about as

well by land as by water, for buying and selling by the ancient and

right customs, quit from all evil tolls, except (in time of war) such

merchants as are of the land at war with us. (4)

That charter and its language emphasize the antimonopoly nature of commercial laws. Individuals and groups should remain free to practice their professions and trades without domination by others.

The creation of specific intellectual property laws, including patents and copyrights, occurred some four centuries later. The first of these laws, the Statute of Monopolies [hereinafter Statute], was created as a specific reaction against monopoly powers exercised by certain individuals and entities. (5) The operation of English law and royal practices had granted monopolies to various importers and producers. (6) For instance, Queen Elizabeth's court favorite, Lord Darcy, appeared to have been granted a monopoly over importing and selling playing cards in England. (7) "When Mr. Darcy attempted to enforce his monopoly against a new entrant, his monopoly was found to be illegal at common law ... Darcy's Case signaled the beginning of the end of the Monopoly System." (8) As abuses mounted, Parliament was compelled to take action, and in 1628 enacted the Statute of Monopolies. (9) The Statute declared void all monopolies, commissions, grants, licenses, charters, and letters patent "for the sole buying selling making working or using of any thing within this Realm or the dominion of Wales." (10) The Statute created an exception allowing the creation of a short term monopoly (fourteen years) "to the true and first inventor and inventors" of new processes. (11)

About a century later, the Statute of Anne granted qualified protection to the printing monopoly of the royally chartered Stationers' Company against "pirates," that is, those who would have the temerity to print materials on their own. (12) That Statute set up the first copyright regime, granting authors a fourteen year monopoly term, which might be renewed for a second fourteen year term. (13) The Statute of Anne also contained a consumer protection provision that allowed relief against a printer or bookseller who might sell a book "at such a Price or Rate as shall be Conceived by any Person or Persons to be too High and Unreasonable. …