Globalization and Intellectual Property Rights - Essay Example

Number Subject Name Lecturer’s Name Law Due date Date Submitted Globalization and Intellectual Property Rights Globalization refers to the process through which the world has become interrelated and interconnected through an increase in the exchange of ideas, opinions, culture and trade. Globalization has been taking place since time immemorial. However, the pace and extent of globalization has hastened in recent years. It has led to increased trade and economic activity, the presence of businesses in several countries, the rise of international companies and the development of international laws and regulations. One of the legal areas that are interlocked with globalization is intellectual property rights. Intellectual property is the creation of the mind that include artistic and literary works, inventions and symbols applied in business and commerce. Intellectual property rights are the rights granted to creators over their creations. The rights intend to establish a balance between public interest in the creation and the interest of the creators1. Intellectual property rights are safeguarded through patents, trademarks, and copyright. Globalization has led to the creation of international agreement on intellectual property called the Trade-Related Aspects of Intellectual Property. In addition, the World Intellectual Property Organization, World Bank, and the World Trade Organization have also facilitated the globalization of intellectual property rights. Trade-Related Aspects of Intellectual Property Agreement The Trade-Related Aspects of Intellectual Property agreement was signed in the year 1994 under the umbrella of the World Trade Organization. The agreement requires all member states to establish in their municipal laws certain minimum standard of protection of property rights. The agreement brings together all the international laws on Intellectual Property under a common and unified set of rules and regulations. The main aim of the agreement is to promote innovation and creation around the world and at the same time provide benefits for development. It allows the wider members of the public to have access to the existing inventions and creations. The Trade-Relate Aspects of Intellectual Property agreement introduces several minimum standards on protection of intellectual rights. Some of these standards require that all member states should grant patents to all inventions in technology, the member states should take into account the interests of third parties in granting patent rights and that intellectual rights are valid for at least 50 years. The domestication of these provisions is mandatory for all member states making the agreement the foremost multilateral treaty on intellectual property2. The agreement contains a western system of rules codified in one single document. It has a strict enforcement procedure that makes sure that all states domesticate and enforce the provisions of the agreement. In addition to the provision of minimum standards of intellectual rights, the treaty goes ahead to create dispute resolution methods and remedies that can be pleaded by aggrieved parties. Trade-Related Aspects of Intellectual Property agreement has had significant impacts on the agriculture, pharmaceutical and tech industries in the world. The World Intellectual Property Organization This is a specialized agency of the United Nations that was formed in the year 1974. The agency has its headquarters in Geneva and has a membership of more than 185 member countries around the world. The main aim of the organization is to promote the enforcement of intellectual property rights worldwide by encouraging the co-operation of states in this issue. The organization also administers several treaties among the countries of the world that deal with the legal and administrative sectors of intellectual property. The organization further plays a critical role in the administration of various patent applications3. Over the many years that the organization has been in operational, it has emerged as a compass leading the world on intellectual property laws. It conducts comprehensive studies to facilitate the modification of rule on intellectual property according to the changing needs and circumstances of the world. It acts as an enforcement mechanism that protects the flow of intellectual proper through borders and also solves disputes that arise on intellectual property. World Bank The World Bank is a global financial institution that provides loans and other forms of resources to countries to facilitate and promote economic and social development. The World Bank plays a critical role in the protection of intellectual property rights. It acts as a conduit to facilitate the payment of charges for the use of intellectual property. The World Bank has put in place policies that attempt to balance the benefits accruing to the creators and innovators and the benefit that accrues to the public on the use of intellectual property. The World Trade Organization The world trade organization is an intergovernmental organization under the United Nations that is tasked with the regulation of trade among the nations of the world. It works to ensure that trade flows smoothly and that there are mutual benefit and fairness in trade relations4. The organization also leads in the negotiation and signing of various trade treaties, it monitors the enforcement and following of the treaties and settles the disputes that may arise from the treaties. One of the treaties that are currently administered by the World Trade Organization is the Trade-Related Aspects of Intellectual Property agreement. Globalization has affected Intellectual Property As illustrated from the above discussion, global organizations have given intellectual property a global perspective. The result of this globalization of intellectual property is controversial to this very day. The effects are felt far and wide, in developed and developing countries and both positive and negative effects5. The essay in the section will discuss the positive and negative effects of the globalization of intellectual property. Positives to Globalization of Intellectual Property There has been an increase in the level of regulation and monitoring of the use of intellectual property. Worldwide organizations have created laws that ensure that the interests of the creators and innovators are catered for. In addition, the organizations have assisted in the creation of a unified set of rules to govern intellectual property6. The Trade-related Aspects of Intellectual Property agreement makes it an obligation for countries who are members of the World Trade Organization to put in place measure to protect Intellectual Property. This ensures that copyrights, patents, and trademarks are established and respected all over the world. It goes ahead to establish minimum standards of protection that should be met by all state parties. The World Intellectual Property Organization also adds to the regulation of intellectual property. The World Bank also regulates intellectual property by providing funding and facilitating the payment of charges for the use of intellectual property. The World Trade Organization further regulates the flow of ideas and trade between countries. Globalization has brought about the increased regulation of intellectual property in the world and within states. Globalization has contributed to the promotion of increased innovation and creativity in the world. The main reason is that it gives innovators and creators a boost of confidence that their intellectual property will be protected and controlled by the various international organizations. The system allows for innovation to be rewarded and encouraged in both developed and developing nations. The result of this is that new ideas are explored and new products made and developed for the world. The international organization seek to eliminate piracy and counterfeiting and establish charges for the use of the existing intellectual property. These charges acquired in this method may be used to redeem the costs incurred in the research and development of the intellectual property. In this way, it is relatively easy for the innovators to invest more time and energy in innovation leading to increased production of goods and services in the world. The other positive that comes with the globalization of intellectual property is the promotion of trade and economic development in countries and the world at large. It is almost inevitable that increased innovation and creativity will cause the production of new products for trade. Therefore, trade between and among countries is encouraged due to the unending supply of new products. It promotes the development of companies that can specialize in the production of certain products for the wider public interest. Examples of such companies include Apple and Samsung that specialize in the production of technological products. It is likely that such reliability and certainty in innovation and creativity would lead to an increase in investment and technology transfer and economic development7. The globalization of intellectual property has created an international regime that has concrete monitoring, enforcement and dispute resolution measures. It provides an avenue where disputes between countries or companies involving intellectual property can be settled amicably and peacefully. There are others who see the globalization of intellectual property as a good thing for developing countries in the world. Firstly, the international laws such as the Trade-Related Aspects of Intellectual Property allows developing nations to exercise their discretion in the implementation of the agreement. Secondly, the agreement requires the developed nations to facilitate the flow of technology from the developed to the developing nations. In addition, they should offer their technical and financial assistance to developing nations in the enforcement of the agreement. Developing nations have an avenue through the globalization of intellectual property access to technology, financial and technical assistance. Negatives to Globalization of Intellectual Property The first negative of the globalization of intellectual property is that it kills innovation and creativity. The spread of information around the world and the regulation can mean that work can often be similar thus possibility of suing / copyright infringement. The increased regulation of intellectual property may stifle down on innovation and creativity. This occurs in situations where ideas or works may appear to be similar. Globalization has encouraged the flow and exchange of ideas between and among people in different parts of the world. It is, therefore, more likely to find similar products being produced in different places. The possibility of suits may discourage further innovation and creativity8. The second negative of the globalization of intellectual property is that the rights protected are viewed as Western Rights. This is attributed to the fact that the United States was at the forefront in pushing for the globalization of intellectual property through international agreements. Developing countries already have their independent intellectual property rights with full enforcement capabilities9. This means that they do not have to make any significant changes so as to attain the minimum standards specified in the global laws and regulations. Developing nations on the other had had no standing mechanisms or structures on intellectual property rights. They are therefore likely to incur huge costs in raising their normal standards to the internationally accepted standards. The global laws and regulations have come up as discriminative to the developing nations in that they inhibit innovation and creativity in those countries while at the same time allowing the developed nations to continue having a monopoly on intellectual property rights. It is no secret that developed nations host majority of the intellectual property rights holder. These holders are being assisted by these laws to continue making profits and get benefits from the intellectual property. Developed countries, however, rely heavily on technological and medical imports meaning that they do have many intellectual property rights holders. They, therefore, suffer the brunt of these laws as they have to pay money for the use of these works that can be as critical as lifesaving drugs, technology, and related agricultural products. Globalization of intellectual property rights interferes with free trade among the smaller and less developed countries. That is because it promotes the rise of monopolistic tendencies in companies and multinational corporations that have intellectual property rights. In addition, the globalization inhibits economic development as it devises smaller countries the right to use methods used by countries before them10. The laws prohibit imitation and reverse engineering which were significant contributors to the economic development of the United States. Intellectual Property and Digital Media are interlinked Globalization has facilitated the essay and fast exchange of ideas, knowledge and information across national and international borders. The digital media is one tool that has promoted this globalization. The digital media refers to any media that can be put into a computer and shared through networks. Globalization has affected many aspects of the human existence, and intellectual property is not an exception. Intellectual property has specifically been hit by digital media in several ways. Firstly, the ease with which the knowledge can be transmitted to other people, the knowledge included in most intellectual property can be shared all over the world in the click of a button11. Secondly, the ease by which the information can be replicated. Thirdly, the ease by which the works can be modified and manipulated by other people. Fourthly, the ease by which works can be linked together. All these create new challenges for the implementation of intellectual property rights. The internet is full of electronic information of all nature and kind. It has come to be known as digital convergence. This is the convergence of several industries including entertainment, telecommunications, electronics and information technology into digital media conglomerates. The full magnitude of the effect of digital media on intellectual property is observed on the internet and various social media platforms. These avenues have allowed the excessive sharing of works, ideas and information12. In addition, it is easy to reproduce intellectual property over the internet. The development of digital media throws a spanner in the works as the world seeks to protect intellectual property. In recent years, websites on all kinds of topics have developed to feed the insatiable need for information in the world. Among these websites are those that display music, video, art and other forms of intellectual property without following the required regulations. People from all corners of the world that can access these websites are able to use the intellectual property. It is easy to download these media, copy, modify them and pass them as one’s own. In addition, it robs the innovators and creators of the intellectual property their rightful benefits. A classic example of such a website is Pirates Bay that used to allow individuals download movies and other copyrighted materials in total disregard to the rules of intellectual property. Another aspects of globalization that directly affects intellectual property with regard to digital media is social media. Social media refers to social interact sites that have gained popularity with the young people of today. Examples of these social media platforms are Facebook, Twitter, Myspace, WhatsApp and many others. These sites have become a platform that people can post and share pictures, videos and music. The social media platforms pose a great challenge to the enforcers of intellectual property laws since such platforms are considered as private and confidential. The existence of the websites and social media platforms are a product of the increased rate of globalization that has been observed within the past decade. The world is now a global village and the distinction between domestic and foreign events is slowly weathering away. It is relatively easy to send a file from one side of the world to the other. These activities are done independent of the established legal structures to govern the use of intellectual property. It is therefore very difficult to enforce or implement intellectual property laws. Several laws have been proposed in the United States seeking to specifically regulate websites and social media sites13. However, as it will be discussed below, these laws have been opposed vehemently by large and influential websites such as Google. Protect IP Act This was a proposed law in the United States also called the Preventing Real Online Threats to Economic Creativity and Theft of Intellectual Property Act. The bill sought to give the government of the United States powers to restrict and control the access of users to websites that have been identified as infringing on intellectual property rights. The bill was supported by intellectual property holders in the business and entertainment industry14. To them, the Act was a way to deal with rogue websites that encouraged the copying and reproduction of intellectual property illegally. The Act, however, met stiff opposition from the online website including Google, who saw it as an attempt by the United States government to have undue control and influence over the internet. Due to the extent of the online protests, the voting on the bill was suspended in Congress pending the solving of the contentious issues. To illustrate the difficulty that comes with seeking to regulate intellectual property on digital media, the bill had estimated that it would cost the United States taxpayers up to $47 million to implement and enforce the bill if enacted into law. The Stop Online Piracy Act The Stop Online Piracy Act was a bill debated in the United States Senate that sought to control online piracy. The act would have given the law enforcers in the country powers to deal with the prevalent practices of online copyright infringement and trade in counterfeit products. The enforcers would have had the right to acquire court order barring companies from doing business with websites and search engines that contravene intellectual property rights. Also, the Act wanted internet services providers to block access to these websites and search engines. Supporters of the bill explained that it would be a milestone in addressing intellectual property theft in the digital media age. That the law was good for industries and that it would promote revenues and jobs. Opponents of the Act, on the other hand, claimed that the law violated the freedom of speech. They also claimed that it would discourage innovation and creativity and that it was in violation of preexisting laws such as the Digital Millennium Copyright Act. Just like in the Protect IP Act, over 7,000 websites across the world mounted a blackout in protest to the enactment of the bill. What happened with the two bills indicate the problems that countries face in their efforts to control intellectual property theft in the digital age15. The digital space challenges the traditional methods of intellectual property protection; it has necessitated the rise of a new set of rules to control and monitor the protection of intellectual property in the digital space. Examples of such rules include the Stop Online Piracy Act and the Protect Intellectual Property Act. Even in situations where these regulations have been put in place, another challenge emerges in the enforcement of these rules. The internet and social media are very wide platforms, and it is extremely difficult to enforce the copyright, patents and trademarks. One of the biggest users of copyright on the digital platform are music artists and movie producers who have placed most of their works on digital media. It is ironical that the same platforms that act as their markets are the ones that rip them off concerning infringement of copyright. Copyright allows individuals to be more creative and innovative in their work. It ensures that the originators of the work stand to benefit from the use and application of their work in any part of the world. It rewards innovation and encourages further investments in the works and ideas of individuals. The issue of copyright was a simple one before the coming of the digital age. At that time, it was relatively easy to prevent the access of unauthorized persons to intellectual property under the protection of the law. The digital media has however allowed the accessibility to these works by people from all parts of the world16. The globalization of intellectual property has encouraged piracy and infringement of intellectual property laws. The internet is a host to most of the intellectual property and it has little or no measures to prevent piracy or copying. This results in the loss of money, time and credit for the original creators and innovators17. The discussion above shows the interrelation between globalization and intellectual property. It shows how the protection of intellectual property rights has become a complicated and nearly impossible affair. References Books and Journals Fitzgerald, B, Copyright law, digital content and the internet in the Asia Pacific, (Queensland University of Technology, 2008) Gladen J, Digital age unlocks true value of intellectual property, (International Tax Review, 2002) Lindsay, D, Australian Intellectual Property Journal, (Thomson Reuters Corporation, 2007) Manchester, P. "Intellectual property: Fundamental dilemma over ownership of knowledge." (Financial Times, 1999). Maskus, K, The Globalization of Intellectual Property Rights and Innovation in Services, (Springer Science & Business Media, 2008) Moschini, G, Intellectual Property rights in world trade, (Routledge, 2010) Nayyer, Kim. "Globalization of information: Intellectual property law implications." (First Monday, 2002). Raman, Y, Protecting intellectual property rights through information policy, (Financial Times, 2008) Legislation Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) 1994 Australian Law Reform Commission Act 1996 Copyright Act 1968 Copyright Regulations 1968 Doha Declaration 2001 Vienna Convention 1969 World Intellectual Property Organization (WIPO) 1974 World Trade Organization (WTO) 1995 Read More