1.6 - Limits to IP: the right to a public domain

Right of access to innovation. When determining the limitations to IP-rights it is important to realize that the availability of the fruits of innovation, whether technical or cultural, is also qualified as an economic human right in article 27 of the Universal Declaration of Human Rights (1948).

Universal Declaration. Article 27(1) of the Universal Declaration states: “Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.” In addition, article 15(1) of the International Covenant on Economic, Social and Cultural Rights (“IVESCR”) determines that everyone has to the right “(a) to take part in cultural life, (b) to enjoy the benefits of scientific progress and its applications, and (c) to benefit from the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.”.

Right to education. The right to education, as provided for in article 26(1) Universal Declaration and article 13 IVESCR also requires limitations for IP-rights and , for instance, provides the basis for the ‘education exception’  to copyright.

Freedom to receive and impart information and ideas. The freedom of expression as provided for in article 10(1)  of the European Convention for the Protection of Human Rights and Fundamental Freedoms include the “freedom to hold opinions and to receive and impart information and ideas”. Section 2 learns that this freedom may be subject to restrictions on the condition that these restrictions are prescribed by law and are necessary in a democratic society, in the interests of, for instance, the protection of rights of others and for preventing the disclosure of information received in confidence.

Intellectual property as exception. This demarcation of IP-rights in terms of (i) the requirements for protectability of immaterial objects, (ii) terms of protection and (iii) scope of protection also illustrates that IP-rights are an exception to the rule. The general rule of law is that data, knowledge and information can be freely used. In general one is also free to take advantage of somebody else’s achievements and may freely compete with anyone who introduced a new product, service or marketing concept. Technology is free, unless there is a patented invention and all knowledge and information one gathers during one’s education can be freely used without being indebted to one’s teachers or the source of that knowledge or information.

Brandeis. Often quoted is the following sentence in the dissenting opinion of Justice Brandeis in the judgement of the US Supreme Court in International News Service v. Associated Press, 248 U.S. 215 (1918) (IPPT19181223) that was dealing with the misappropriation of news: “The general rule of law is, that the noblest of human productions –knowledge, truths ascertained, conceptions, and ideas –become, after voluntary communication to others, free as the air to common use.”

That certain concrete immaterial goods may be protected against the certain forms of specific commercial use thereof for a limited time is therefore the exception to the rule. All attention that is then directed at appreciating the content of these rights should not result in one losing sight of the fact that IP-rights are – and should remain – an exception to the rule. The rule is based on three fundamental freedoms that are dictated by the public interest.

Schumpeter – “Creative Destruction”. These fundamental freedoms are essential for a capitalistic market economy that is characterized by a never ending process of introductions of innovations and the simultaneous replacement of aging products and services. The economist Schumpeter referred to this evolutionary process as “creative destruction” and indicated that this continuing process of innovation – this creative destruction – is the essential characteristic of capitalism: The essential point to grasp is that dealing with capitalism we are dealing with an evolutionary process. [...] Capitalism, then, is by nature a form or method of economic change and not only never is but never can be stationary. [...]. The fundamental impulse that sets and keeps the capitalist engine in motion comes from the new consumer goods, the new methods of production or transportation, the new markets, the new forms of industrial organization that capitalist enterprise creates. [...]. [...] the same process of industrial mutation – if I may use that biological term – that incessantly revolutionizes the economic structure from within, incessantly destroying the old one, incessantly creating a new one.  This process of Creative Destruction is the essential fact about capitalism. It is what capitalism consists in and what every capitalist concern has got to live in.” (Schumpeter, Capitalism, Socialism and Democracy, 1942, p. 82).