The world is a better place with intellectual property

For many people, the law evokes Kafkaesque images of a powerful yet often unidentifiable bureaucracy which treats people not as individuals, but as a never-ending queue of fungible human widgets. You wait in line with the stack of forms that you carefully filled out, only to hear that you are supposed to be on the third floor. Dutifully, you trudge to floor three, take a number and wait to hear someone call out, “Number 738 to counter E43.” But do not doze off or the machine will move on to number 739.

Fortunately, the world that Kafka described – a world in which incomprehensible rules scratch out individuality – exists mainly (but not solely) in fiction. More comforting still is that there are laws that encourage and protect imagination, creativity, self-expression and useful invention. Those laws apply collectively to what is known as intellectual property, which at its core is about individual expression.

Like the deed to a house or the title for a car, IP law is a legal bond between an individual and his or her property. However, this bond has a special, personal aspect in the context of intellectual property. The lyrics of a song, the melody of a symphony, a still-life painting, a film, a computer program, an electric car – those are just some examples of IP works that people have created through imagination, insight and diligent work.

By protecting intellectual property, the law encourages and enables creativity. This is no mere abstraction or aspiration. In 1789 the US Constitution took care to promote innovation and expression, which resulted in the inclusion of copyright and patent protection among the tasks of the newly designed federal government. In the centuries since, property rights generally and IP rights in particular have entered the sphere of fundamental human rights. The EU Charter, for example, is emphatic in stating that intellectual property “shall be protected”.

Without copyright, the law would be indifferent to plagiarism. Without patents, would-be inventors might well conclude that they cannot afford to spend so much effort on a better mousetrap if anyone can copy their design for themselves. Without trademarks, goods and services would blur together.

A world without intellectual property would be filled not with invention and artistic expression, not with imagination and sparkling creativity, but with frustration and the grim, grinding sameness that substitutes for distinctiveness. A world without intellectual property offers nothing for civil society.

And yet there are many threats to intellectual property which, if unchecked, could convert a Kafkaesque scenario into reality. One example of the erosion of intellectual property is the government-mandated banning of brands through regulatory proposals such as tobacco plain packaging, which imposes a wholesale ban on logos and visual trademark elements and requires all packaging to look the same. There is no question that government should regulate in the public interest and we support genuine public health measures, but wiping out trademarks goes too far. The law protects trademarks because of their essential functions for consumers and in ensuring fair competition. By contrast, a complete ban on branding distorts the market and treats consumers as if they are incapable of making their own decisions.

Countries around the world have shown that effective tobacco control can co-exist with respect for consumer freedoms and private property. However, a wholesale ban on branding repudiates IP law and, indeed, the rule of law. Philip Morris International is therefore challenging the trademark bans that the United Kingdom and Australia have imposed.

Everyone who cares about individuality, innovation and choice should bear in mind why the world is indeed better when society respects intellectual property.