By Paramjeet Singh
For the purpose of this essay, values have been read as interests. This is because values of an individual or the society are what they want to be reflected in the law which in turn translates into their interests. Values are a very subjective concept and interest is a more concrete term. Values are the foundations of an individual or a society and their manifestation/representation qua others becomes interests. Values are thus, transformed into interests ultimately.
Therefore, the parameters of what should be reflected by law are the interests of the concerned entity which is the reflection of the values that entity holds.
The topic of this essay is very subjective and therefore, the analysis undergone through for the discussion of the same might look very subjective too. In order to know what individual values are in the context of IP law, it becomes important to first know on which side of the line we should stand to argue. In a commercial set up for which an IP system has been made, there are three important interests groups. One, the producer or the holder of the IPRs. Second, the consumers. Third, the competitors qua which the IPRs are enforced. These three are very important factors that cannot be eliminated. As mentioned earlier in this essay, IP system is meant to protect the manufacturers who hold the IPRs against those who do not. In this scenario, IP system takes into account one individual interest for sure and that is the interest of the manufacturers.
It is worthy to note that these days, IP system is being afforded a dimension to protect the interest of the community which might find it difficult to be classified as ‘individuals’. However, the definition of an ‘individual’ might extend beyond a ‘human unit’ to some entity that stands united by a common and unified interest in a product of intellect that can be said to be the creation of the entity as a whole. In such cases, individual values encompass themselves in the value of an entity that contains more than one human unit.
Now the situation arises whether the individual values of an entity constituted of more than a single individual be termed as social values is a debatable question.
The social values are those values that are not individual in the sense that the former relates to a larger section of society or to the common interest of the society. It is always the case where no two individuals have the same interests.
The reason for this is the fact that resources are limited and when two individuals compete for the same resource there cannot be an identity of interests. In this essay, we are not concerned with the value judgment as to whether those social values do any good to the society or not. We are limited to the basic character of the social values in the sense that they are the values of the society as a whole. However, it would be pertinent to submit that social values are generally considered to be good for the mankind as a whole.
Distinction Between Individual and Social Values
There is a strong possibility that individual interests are conflicting in nature. Rather, in almost all cases, it is because of scarcity of resources and also due to the common consumption market in the commercial context. It implies that interests of the manufacturers can never be in coherence with each other because of the fact that they try to struggle to have the biggest possible share of the limited market in relation to a product which is the subject matter of IPR. Therefore, IP law can be said to be applied to guard the individual interests of the manufacturers qua each other. This is a peculiar feature of individual values. Individual values are most of the times in conflict with each other.
Whereas in the case of social values, there is no conflict at all. By definition social values encompass individual values and therefore, they are not against. It implies that social values are comprehensive in nature. There are cases where question arises as to the evaluation of the social values against the individual values. Balancing of the individual and social values can never happen. The only thing that is possible is to balance conflicting individual values of a social group to give a direction or a particular shape to the social value.
Social values and individual values do not have a specified periphery or shape. They are always fluid in the sense that they keep on evolving to cope up with the change in the circumstances.
Choice of values that would be reflected by a specific law is also a matter of priority. The basis of this point lies in the very process of law making. Law making is the prerogative of the state. State comes into existence because of its constituent citizens. Citizen is a collective group when we see it in the light of the existence of a state and therefore, it supersede the very existence of the individual. It implies that when the laws are made by the state in relation to a subject matter, howsoever that subject matter pertains to the rights of an individual; the social dynamics of the same cannot be ignored by the state.
Therefore, whenever a law is made, the focus could be ‘individual’ but the basis is always ‘social’. In the light of this, it could be said that the theory or the foundations that characterize the law making process itself give the law a social color. Hence, IP law reflects the social values like any other law. The mere fact that law is made by the state gives it a social dimension which might have a bearing on the law even when it is intended to give private rights to the individuals.
IP Law in Commercial Context
This section might not be conducive to the comments in the aforementioned paragraphs, it is but relevant to put forth this picture as well for the wholesomeness of the discussion. It is often said that IPRs are in the interest of the society because they lead to innovation and ultimately make mankind comfortable in all senses. For example, it is often contended that IPR make the drug companies to invest more and more in the research and development of medicines that might be very helpful in curing and preventing the deadly diseases. If we adopt this line of approach then we can conclude that IP system is a mean to achieve social interest vide satisfaction of the individual interests. Therefore, according to this perspective, IP law should reflect social values.
IP, in commercial context, excludes the other from of the use of the IPRs. It means that use has specific meaning here which can be justified more in a commercial context. There could be many issues in which a creator or author would want to control its creation to the exclusions of other. But, this not a “use” specific issue; rather, this more about controlling the very existence of your IPR of which use could be a part.
In such cases, IP law specifically might be said to reflect the individual values. In these situations moral considerations crop up and the theories of the personality also play a major role but the extension of the theory of personality to commercialize what flows from a personality is not what is covered under this specific case. This is only limited to those cases in which the creator or the author of a particular subject matter is inherently linked to his creation in a manner that the said creation has a very strong manifestation of his being in all intellectual terms. This kind of situation never reaches the commercialization aspect of that creation because of its very nature.
IP protects individual’s property and his interest for the protection of the overall social interests. IP law should reflect social values that encompass in themselves individual values.
In the end, it can be concluded that IP law as such has been made to reflect the individual values of an entity composed of a single individual or a groups of individuals sharing the coming and unified values but as we go ahead to the application of the IP law, various other aspects come into the picture by virtue of the fact that the dispute involving IP is not the dispute only characterized by the IP issues but have several other subject matters involved therein.
In such a situation, IP-related specific issues could be of the concern of an individual but other subject matters may be matter of social concern. For instance, tobacco plain packaging legislation of Australia introduced some changes in the IP law, specifically trademark law, of Australia to make sure that impact of plain packaging bill on IPR could well be accommodated within the IP law statute. This implies that IP law was made to take into account an aspect that was introduced on the pretext of public health grounds. Protection of public health is a social value. Therefore, IP law was amended to reflect the social values or at least to make way for the social values to be achieved without any interference of the IP law which in turn amounts to reflection of the social value ultimately.
Furthermore, the presumption that individual interests are encompassed in the social interests renders the question of the topic of this essay redundant. Therefore, the application of IP law as such reflects the social values. IP protects individual’s property and his interest for the protection of the overall social interests. IP law should reflect social values that encompass in themselves individual values.
Paramjeet Singh is a lawyer practicing before the Supreme Court of India.
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