Academic journal article Journal of Buddhist Ethics

Intellectual Property in Early Buddhism: A Legal and Cultural Perspective

Academic journal article Journal of Buddhist Ethics

Intellectual Property in Early Buddhism: A Legal and Cultural Perspective

Article excerpt

Introduction

"Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce" ("What is Intellectual Property?"). Depending on the type of a given piece of intellectual property, its owners usually expect from it one or more out of the three kinds of rights:

Right to monopoly Owners of copyrights and patents enjoy a time limited monopoly of these for the sake of some financial prospects.

Right to identity A business uses trademarks and brands to create and reinforce its presence and identity in the business world. By having a valid and well-protected trademark, a business can ensure that customers willing to buy its products will not be tricked into paying someone else.

Right to credit The creators of ideas or expressions and the dis coverers of information must be acknowledged whenever someone else makes use of their work. A failure to give proper credit results in plagiarism.

Although these IP rights, except the last one, probably did not exist when monastic law was formed, it is time for Buddhist monks and nuns to look at these in the light of the Vinaya. Why? If the Vinaya has to accept the popular opinion, as it is, on these matters (i.e., that the in fringement of copyrights, patents, and trademarks is a kind of theft), every monk or nun committing such an infringement would certainly lose his monkhood or her nunhood, for theft is an ultimate Vinaya offense that definitely results in such a devastating effect. Hence, this matter needs serious investigation.

As a result of my analysis, I have come to the following conclusions:

1. The infringement of copyrights, patents, and trademarks does not amount to theft as far as Theravadin Vinaya is concerned.

2. Because a trademark infringement involves telling a deliberate lie, it entails an offense of expiation (pacittiya), but I cannot find any Vinaya rule which is transgressed by copyright and patent infringements.

3. Although the Buddha did recognize the right to intellectual credit, commentarial interpretations have led some traditional circles to maintain that intellectual credit can be transferred; that is, the original author or contributor of an intellectual creation can transfer the due credits for the work to someone else.

Right to Monopoly

Copyrights and patents are means to permit creators and contributors to have a control of the distribution and usage of their work within a specific period, obviously for the sake of financial benefits. The infringement of copyrights or patents is a civil offense and, for many people, this is a sort of theft. But can it be termed a theft in monastic law?

To be a valid theft in Vinaya, the object of theft must be: (l) "the possession of another" (Horner 1: 90ff parapariggahita Vin 54.14ff), and

(2) of some financial value. (2) Therefore, the infringement of copyrights and/or patents can be termed legally equivalent to theft in the Vinaya only if the original IP owner loses, on account of such an infringement, something of financial value that he or she possesses. Accordingly, the question we need to ask is: what does the original IP owner lose in financial terms on account of such an infringement?

According to the US IP law, the financial loss resulting from IP infringement can be measured in two ways: the market value measure and the lost opportunity measure (Ross 1-12), which I will demonstrate using a scenario for the sake of those readers who are Vinaya experts yet not familiar with the secular IP law.

Calculating damages incurred by IP infringement: A scenario

Suppose I am a businessman who has bought exclusive rights to distribute a particular movie in DVD format for twenty dollars apiece in Sri Lanka for one year. Thorough market research tells me that I can sell at least 5,000 copies of the movie, if properly marketed, within the period of license. …

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