The exact evaluation of the public realm and fair use is certain to build an economically systematic intellectual property rights structure. The matter of the proper balance between intellectual property rights and “fair use” is disapproving both in developed economies and in developing economies. Intellectual property rights affect the rate of technological growth, and technological growth is the most important factor in long-term economic growth. Hence proper balance of Intellectual property rights and exceptions to it are critically important. Intellectual property rights inflict social costs on the public by curbing access to protected work, the law can be explained on the basis of balance as it stimulates creation and spreading of new works to balance those costs. The balancing act that undermines intellectual rights legitimacy is not possible to perform because it is impossible to measure the benefits that intellectual rights have for the inventors.
Keywords- Intellectual property rights, Balance, Fair use, Social costs, Inventors
Intellectual Property Rights has been defined as inventions and identifying marks that are convenient for commerce and industry, artistic and works of culture. Patents, copyrights, trademarks, industrial designs are generally indicated in discussions on diverse topics such as food, public health, trade, industrial policy, biotechnology, the entertainment, the Internet and media industries.
Patents are granted to incentivize invention. Inventors usually have less time and resources to choose where they should spend in the given time and resources, this will depend on where the inventor looks forward to get the most worth.Moreover, patents are accorded to convince companies to invest in innovation.
Balance is the most experiencing of the iconographic features of justice. At times, it did more than representing or manifesting. The balanced relationship between crime and punishment in the ancient times is that, an eye for an eye, a tooth for a tooth which indicates that, in definite contexts, the balance was an actual abstract instrument of justice.
Balance- TRIPS Agreement
It is true that intellectual property rights interfere with global access such as food, healthcare because of which there is conflict between patent holders and those seeking to provide access. The most essential international document that involves patent laws and human rights is World Trade Organization (“WTO”) Agreement on Trade Related Aspects of Intellectual Property Rights (“TRIPS”), even the developed and developing countries have accepted to the needs of TRIPS in order to get the benefits of World Trade Organisation membership. The TRIPS agreement is the first agreement to mention the word “ balance” upon which the World Intellectual Property Copyright Treaty recognised the requirement to maintain a balance between the rights of authors and the larger public interest, mainly education, research.Balance was first recognized in the case of White v. Samsung Electronic America, Inc.In the Indian context, the appellate body of India- Patent Protection for Pharmaceutical and Agricultural Chemical Products summarized that the grant of “exclusive marketing rights protects the core balance of the TRIPS Agreement with respect to pharmaceutical and agricultural chemical product patents.” The appellate body did not refer to the question of balance.
Issues Relating to Patent- “The Patent Crisis”
The patent system in recent years has enjoyed levels of use which are far beyond what would have been imagined only a decade ago. But this success has not given rise to universal fulfilment, neither within the immediate circle of executives and users of the patent system, nor among the intended beneficiaries of the structure more widely in society. The patent system is in crisis. The consensus in favour of strong patent protection that has existed from the creation of the Federal Circuit (the appeals court that hears all patent disputes) in 1982 has broken down. Patent owners and the Federal Circuit itself are afflicted on all sides by those complaining about the growth of bad patents and the abuse of those patents in court. As the progress in science is increasing and the due to the increasing rate of technological developments it is ironic to say that there is a declining rate of innovation. The most significant criticism of patent systems has also been seen concerning public health, NGO’s have strongly debated about the impact of patents on the prices of medicines and availability by those in need, generally found in developing countries. Another criticism has been centered specifically on the rigidity of TRIPS agreement. The debate on Intellectual Property has also been enlarged to include a push for greater access to innovation and scientific advancement for the global public good. Critics of the patent system have debated that ownership of science and technology inherited in the current system have major drawbacks on the general welfare of society.
SOLUTIONS– Global patent system is a solution for the above-mentioned issue. This system is usually believed to decrease transaction costs i.e., filing fees and potential litigation. In the pharmaceutical and biotech context, a global patent system could cut down on charges to assist parties in filing after pre-clinical studies. Thus, the Global patent system will enforce patent suits which would be more convenient and less expensive indeed, a law allowing a patent holder to combine multiple contravening acts in a single suit might not only save cost but also provide the only means for the patent holder to obtain redress.
Fair Rule in Patent right
The doctrine of fair rule was a judicially created doctrine that owes its emergence to the famous case of Folsom v. Marsh.This rule typically assists “socially laudable purposes”, if not exclusively, it involves the rule of copyrighted work by second author.Fair use is not a ‘license’ but by the virtue of which the person pleading defence against a suit for contravening, can escape grasp of copyright law. The term fair rule is queer in United States whereas a related principle known as fair dealing prevails in some familiar customary law jurisdictions such as India and U.K. Fair rule is usually a term which is used in United States law and in the other countries with a doctrine called Common Law Heritage.
In the view of the eminent imbalances of the Intellectual property law dominion and even in the view of the immense material imbalance among developed and developing countries it is well acquired that the quest for balance is a worthy undertaking. The complication of the issues involved proposes that it will be impractical to state with absolute confidence that proper balance in this law will ever be affected at a given moment in time. If an industry-specific patent fair use, then it can ease many concerns related to network industries. Lastly a patent fair use can additionally assist the progress which the constitution directs.
Christopher Garrison, Exceptionsto Patent Rightsin Developing Countries (2006), https://unctad.org/system/files/official-document/iteipc200612_en.pdf (last visited on March 1, 2021)
David S. Olson, Taking the Utilitarian Basis for Patent Law Seriously: The Case for Restricting Patentable Subject Matter, 82 TEMPLE L. Rev. 181, 195-96 (2009)
Robert P. Merges & Jeffrey M. Kuhn, An Estoppel Doctrine for Patented Standards, 97 CAL. L. REV. 1, 24(2009)
Frequently Asked Questions About TRIPs in the WTO: Which Countries Are Using the General Transition Periods? World Trade Org., http://www.wto.org/english/tratop e/trips-e/HTML transition (last visited on March 1, 2021)
Preamble of the World Intellectual Property Organization Copyright Treaty (WCT), adopted in Geneva on 20 December 1996
989 F.2d 1512, 1516 (9th Circ. 1993)
9 F Cas 342 (1841)
Universal City Studios, Inc., v. Sony Corp. of Am., 659 F 3d 963 (971-72) (9th Cir 1981) at 479