Justine Pila, The Subject Matter of Intellectual Property
| Published date | 01 January 2019 |
| DOI | 10.3366/elr.2019.0539 |
| Pages | 142-144 |
| Date | 01 January 2019 |
| Author |
Intellectual property harbours significant difficulties including whether it possesses the fundamental attributes of “property” rights. It is also the case that what ought to be protected by the law gives rise to numerous controversies. In addition, persistent questions concerning the scope of protection exist – the justifications for intellectual property rights are far from settled. Given these controversies, defining the subject matter and, in turn, the proper reach of intellectual rights is fraught with difficulties. Attaching a literal meaning to a specific subject matter, for example, might result in ossification. Artistic copyright provides compelling examples of that risk – the meanings of “collage”, “sculpture”, “painting” and “artistic craftsmanship” have largely depended on how such works are characterised by the artistic tradition in question; an approach which potentially excludes new methods of creativity or changes in genre. Further problems arise from broad definitions of intellectual property. Chief among these is the risk of overprotection of rights – the parameters of protectable subject matter are often ill-defined. For instance, literary copyright in some Common Law jurisdictions is sometimes concerned with material which might not bear any close resemblance to ordinary understandings of what ought to constitute works of that kind. Besides, wide or narrow definitions are productive of uncertainties. Owners and users of intellectual property lack advance means by which they can determine their entitlements. These issues are complicated much further by international factors which require a recalibration of what should be protected – the European Union, for example, has routinely intervened in formulating what can be protected and the requirements for such protection.
A major feature of intellectual property is that it is not a by-product of linear developments. Instead, various contingencies have often been at stake. The most important of these is the need for the law to adapt to rapid technological changes. Take musical copyright as an example. The invention of new methods of creating, disseminating and consuming music has posed numerous challenges to that category of copyright works. Similar concerns can be observed within the context of patents and plant varieties. Scientific advances have engendered considerable difficulties in the areas of biotechnology, for instance. These technological and social changes might render precise...
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