IGZ320
Rationales for IP protection
Dr Chijioke Okorie
Date: 01 August 2023
Overview
• Why do we study theories of IP protection?
• Some theories of IP protection?
• Explaining the theories
• Critiquing the theories
• Applying the theories
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Why do we study theories of IP protection?
• Theories provide normative guidance
• Theories help explain empirical findings
• Theories assist with addressing practical challenges.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Some theories of IP protection
• Utilitarian theory
• Labour theory
• Personality theory or Private property right theory
• Social planning theory
• ‘Ubuntu’ or public interest theory
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa
Explaining the theories: Utilitarianism
• IP is a social construct that aims to promote the greatest good for the
greatest number of people.
• IP protection should be balanced with public interest and access to
knowledge. Duplicative creative or inventive activity should not be
promoted as it is against the public interest.
• There should be some sort of protection mechanism that gives exclusive
rights to creators, inventors, or trademark owners to avoid them losing out
on the costs of creation, and to also ensure that they are incentivized to
keep creating and to keep inventing.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Explaining the theories: Labour theory
• IP protection is a way or mechanism to reward the
labour of those who have expended their resources
and efforts in creating or inventing.
• A person who expends labour using resources that are
either unowned by anyone or owned in common to all,
should have a natural property right to the fruits of his
or her efforts.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Explaining the theories: Personality right
theory
• IP is a reflection of one’s identity and expression.
• IP protection should respect the dignity and autonomy
of the creators, and allow them to develop their
personality through their IP.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Explaining the theories: Social planning theory
• IP should be shaped to promote the achievement of a
‘just and attractive culture’ - where people are
incentivized to create and where structural support
exists for cultural production and enjoyment.
Explaining the theories: Ubuntu
• IP outcome or policy position will be in the public interest where it
serves majority of interests...if the national legislative or
administrative process through which the majoritarian position is
reached is fair.
• IP rights should be granted and enforced in a way that serves the
public interest, rather than the private interests of the IP holders or
users.
• IP protection should promote innovation and creativity.
• IP protection should respect and protect other fundamental rights
and interests.
• IP protection should prevent and remedy IP misuse and abuse.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Critiquing the theories
• Utilitarian theory: How do you arrive at an optimal duration for IP
protection? For intellectual products that are unsold or unlicensed, does it
mean no one wants them or can pay for them? Where is the evidence
that intellectual production is dependent on IP protection?
• Labour theory: Would the labour to be rewarded be the time and effort?
The forgone activity? Socially beneficial activity (example, if an invention
is socially valuable?)? Creative activity? For the materials unowned or
held in common, what are those? Facts? Language? Ideas? Cultural
heritage?
Critiquing the theories
• Personality theory: To apply this perspective or justification, it requires the
identification of the interests one needs to promote. Privacy? Identity?
Where is the evidence that IP is the best system to realize those
interests? How do you carve out the limits of those identified interests?
• Social Planning theory: How do we formulate a vision of a “just and
attractive culture”? What would it mean? What would it entail?
• Public interest theory: Who determines the balance? The threshold and
boundary between use and misuse; use and abuse?
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa
Applying the theories: Prof Dean in BlindSA
30 The nub of Blind SA’s case is that the Copyright Act fails “to provide an exemption from its provisions for
persons with print and visual disabilities”, and consequently violates their rights to dignity, equality,
education, freedom of expression and to participate in the cultural life of one’s choice.
31 But, with respect, Blind SA is mistaken in this regard. The Copyright Act does include a mechanism for
crafting such exemption. The fault lies with the executive, which has failed to invoke it.
34 Read together, these provisions plainly entitle the Minister to enact regulations that would permit the
reproduction of works into accessible format copies for use by print-disabled people. The fact that the Act
does not enact an outright prohibition and wholly impede access to copyrighted works by print-disabled
people is, we submit, sufficient to save it from constitutional invalidity.
35 Indeed, properly interpreted, sections 13 and 39 of the Copyright Act oblige the Minister to promulgate
regulations to provide access to print-disabled people, in accordance with the three-step test:
52 Third, there is nothing constitutionally problematic in withholding the right to publish and/or reproduce an
unpublished work from a print-disabled person. It is for the author or copyright owner to decide whether,
when and where her work should be published.
For the sixth consecutive year, according to THE World University Rnkings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Questions? Comments?
Let’s talk about it…
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A fet unequalled in Africa!
Quiz
For the sixth consecutive ear, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Timnit Gebru on LinkedIn
“The race to build large language models used in generative AI has created
a surge in demand for more powerful processors. The specialized chips
required for AI - broadly known as accelerators - emit so much heat than
general-purpose chips do that data center operators are having to rethink
their cooling systems entirely. Ren, associate professor at University of
California has conducted research estimating that training GPT-3 in
Microsoft’s US data centers directly consumed 700,000 liters of water in
about a month - not including the indirect water use associated with
electricity generation. The team has also calculated that every short
conversation of 20 to 50 questions and answers with ChatGPT represents
about 500 milliliters of water”.
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
Coming up…
IP and the Constitution…
For the sixth consecutive year, according to THE World University Rankings, 2023, UP LAW ranks best in Africa
and Top 78th in the world. A feat unequalled in Africa!
