Intellectual property and humanities dichotomy

I was privileged to deliver a talk during the recent workshop on Intellectual Property Management For Knowledge Workers organized by the University of the Philippines in Mindanao.

I started my talk by citing a simple but philosophical definition of intellectual property law: a branch of law that protects the "finer manifestations of human achievements." This definition is courtesy of my English professor in Patent Law – Prof Bill Cornish. I believe there could be no other finer human achievement than the ability of man to exercise his intellect and will which is best manifested through his intellectual creations.

It has been said that the capacity to use freely our intellect, our self-knowledge, self-consciousness and self-determination are tests of "Man’s original solitude"; that is, man is peculiar and different from the rest of the living creatures. As human beings, we are persons with the specific subjectivity (or dignity) that distinguishes us from other creatures.

Having this as background, I explained the foundation of the legal principle behind intellectual property law. The inventors, authors or creators are treated as persons, who have certain attributes that conform to his dignity as man.

The inventions, literary works or any other creations are an extension of his personality and naturally belong to him. The "creations" are his property and are protected by law against theft or infringement.

On the other hand, some economists maintain the view that pirated music and video products should be initially allowed in the market to create public awareness of the product and thereafter stimulate legitimate market demand for it. As an example, they cite the Chinese market whereby the circulation of pirated copies of American video products effectively created "a high appetite among the Chinese mass for American productions." Clearly, some economists are primarily concerned with maximizing the utility that consumers receive from the consumption of the copyrighted work.

Their views are inconsistent with basic norms of justice and equity, the disregard of which would lead to disorder and unfairness in our society. Hence, any person desiring to copy the invention, copyrighted work or trademark must compensate the creator or the owner out of justice and equity.

It is outside the concern of intellectual property law whether or not the protected intellectual properties ultimately become saleable and whether a market develops for it. Hence, my strong reservation against the view that piracy can be justified if only to stimulate market activity.

In any case, ownership of intellectual property should be ordained for the common good. We create and possess intellectual property maybe initially for personal gains but also thinking of the benefit it will give to the community.

For reasons of justice and fair play, an inventor or creator has the right to compensation or recognition for the labor contributed in creating that intellectual property. This compensation is usually in the form of royalties. The intellectual property system may be altogether unfair if royalty payments are solely dictated by commercial reasons. The factors in determining the value or amount of royalties must also take into consideration the "common good."

The Chancellor of the University of the Philippines in Mindanao, Prof. Ricardo De Ungria, welcomed my views and commented that it follows the "humanist" thinking. During the workshop, a participant said that I mentioned two very important words that he has been longing to hear in the university for a long time: "common good."

As expressly stated in the Constitution: "The use of intellectual property bears a social function." Thus, intellectual property protection must likewise function for the common good and ultimately foster human development.

(Alex Ferdinand S. Fider is a Partner of ACCRALAW. He received his LLB from the University of the Philippines College of Law [1986] and LLM from Queen Mary College — University of London [1990]. He can be contacted thru tel. 830-8000 and email address [email protected])