The universality of intellectual property rights: origins and development
| Autor | Peter Drahos |
| Cargo | Abogado y Doctor. Unidad de Propiedad Intelectual del Center for Commercial Law Studies, University of London, Reino Unido |
| Páginas | 17-46 |
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Anuario Andino de Derechos Intelectuales.
Año IV - N.º 5. Lima, 2009
The universality of intellectual property rights:
origins and development*
PETER DRAHOS
Sumario: I. Defi nitional Observations. II. The History of Intellectual Property. 2.1. The Territorial Period. 2.2
The International Period. 2.3. The Global Period. 2.4. Post-TRIPS. III. Human Rights, the Right
of Property and Intellectual Property. IV. Intellectual Property Rights: Universally Recognized or
Universal Rights? V. Intellectual Property and Human Rights: An Instrumental View.
I. DEFINITIONAL OBSERVATIONS
“Intellectual Property” is a generic term that probably came into regular use during
the twentieth century1. This generic label is used to refer to a group of legal regimes, each
of which, to different degrees, confers rights of ownership in a particular subject matter.
Copyright, patents, designs, trade marks and protection against unfaircompetition form
the traditional core of intellectual property. The subject matter of these rights is disparate.
Inventions, literary works, artistic works, designs and trade marks formed the subject matter
of early intellectual property law. One striking feature of intellectual property is that, despite
its early historical links to the idea of monopoly and privilege, the scope of its subject matter
continues to expand. The twentieth century has seen new or existing subject matter added to
present intellectual property systems (for example, the protection of computer software as part
of copyright, the patentability of micro-organisms as part of patent law), and new systems
created to protect existing or new subject matter (for example, plant variety protection and
circuit layouts). The strongly expansionary nature of intellectual property systems shows no
sign of changing. Internationally, for example, special legal protection for databases remains
part of the work program of the World Intellectual Property Organization (WIPO).
Trying to defi ne the essence of intellectual property is diffi cult. Most defi nitions, in fact,
simply list examples of intellectual property rights or the subject matter of those rights (often in
* Este artículo se publicó en “Intellectual Property and Human Rights”, WIPO, Genova, 1999, pp. 13-41.
El artículo ha sido reproducido con expresa autorización de su autor.
1 It was customary to refer to industrial and intellectual property rights. The term industrial” was used to
cover technology-based subject areas like patents, designs and trade marks. ˜Intellectual property” was
used to refer to copyright. The modern convention is to use ˜intellectual property” to refer to both industrial
and intellectual property.
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
inclusive form) rather than attempting to identify the essential attributes of intellectual property2.
One should also note that individual intellectual property statutes provide defi nitions of
the subject matter of their application. So, for example, copyright statutes will typically
defi ne terms such as “literary work”, as well as stating that copyright in a work consists of
particular exclusive rights. Patent statutes defi ne the term “patent” in terms of invention
and then specify the criteria of patentability. The defi nitional dimensions of intellectual
property are further complicated by the fact that intellectual property regimes are the pro-
ducts of different philosophical and legal traditions. The term “copyright”, for example,
refers to those common law systems that characterize the exclusive rights of authors in
essentially economic terms (the rights to reproduce the work, to publish it and to adapt it
are examples). Within civil law systems, the rights of authors are seen, at base, as being
about the protection of the authorial personality (the right to be acknowledged as the au-
thor of the work and the right to control alterations to the work are the core rights). These
systems are not referred to as copyright but rather as authors’ rights.3
A defi nition of intellectual property that moves beyond lists or examples and attempts
to deal with the essential attributes of intellectual property has to focus on two elements:
the property element and the object to which the property element relates. Intellectual
property rights are often described as intangible rights. The idea behind this classifi cation
is that the object of the right is intangible. All property rights place the rightholder in a
juridical relation with others. The key difference between rights of real property and inte-
llectual property rights is that in the latter case the object of the right is non-physical. One
can think of it as an abstract object rather than a physical object. It is possible that one
can “own” the abstract object without owning a particular physical manifestation of the
abstract object. A letter sent to a friend, for example, results in the property in the letter
passing to the friend, but not the copyright.
For the purposes of this paper, we will say that intellectual property rights are rights
of exploitation in information. Information is becoming “the prime resource” in moderne-
conomic life.4 Even in apparently non-information industries like agriculture, the control
and ownership of genetic information has become a major factor, shaping the structure
of that industry. It is precisely because information has become the primary resource that
the exploitation of information through the exercise of intellectual property rights affects
interests that are the subject of human rights claims. Property rights by their nature allow
the rightholder to exclude others from the use of this prime resource and so they are likely
to produce instances of rights confl ict. To illustrate the point somewhat tersely: property
in expression (copyright) confl icts with freedom of expression.5
2 An example of this approach is to be found in Article 2 (viii) of the Convention stablishing the WorldIntel-
lectual Property Organization, signed at Stockholm on July 14, 1967.
3 See Z. Radojokovic, “The historical development of ‘Moral Right’”, (1966) Copyright, p. 203.
4 T. Mandeville, Understanding Novelty: Information, Technological Change, And The Patent System,
(Ablex Publishing Corporation, Norwood, New Jersey, 1996) p. 3
5 For an account of how the confl ict might be resolved see Melville B. Nimmer, “Does Copyright Abridge
the First Amendment Guarantees of Free Speech and Press?”, 17 (1970) UCLA L. Rev, p. 1180.
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