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Yves Reboul
Director - CEIPI, Strasbourg
If one wants to draw the outlines of Intellectual Property as it will be by 2025, one has to take the Declaration of the Council of the European Union made in Lisbon in the year 2000 as a starting point.
According to the Declaration, Europe must progressively enter in the Economy of knowledge, which means that intellectual activity and IP products are to become the nearly exclusive source of the creation of riches. As we can see it, this movement is progressively extending to all countries.
The entry into this new economic era, by the year 2025, will involve social, political and inevitably legal upheavals, because there is no social life, no production of wealth without an economic order, that is to say without a whole set of structures and rules which frames them and ensures their promotion.
Since we are considering the « IP LANDSCAPE IN 2025 », it appears to me that the legal aspects of intellectual property, precisely, are going to play a major part.
Indeed, as the economic activity, and consequently Humanity’s living conditions at that future time will be based on immaterial goods, the legal security attached to these intangible values, will be the determining factor in ensuring the implementation and development of Intellectual Property.
In this respect, I for one strongly believe that two main guidelines should be followed by the « actors » of intellectual property law, that is to say legislators, experts and judges, at national, international or transnational levels, namely : . to establish the legitimacy of intellectual property rights,
. to reinforce the monitoring of the exploitation of intellectual property rights
I- TO ESTABLISH THE LEGITIMACY OF THE INTELLECTUAL PROPERTY RIGHTS
Whereas entitling the author to the benefit of his intellectual creation has always been considered as the most sacred property right, nowadays we can see that it is being questioned in some countries or some groups of countries.
This is the case in particular in the field of patents (biology or biotechnology patents; drugs patents) or in the field of copyright (free software, free copying of works…)
At the same time, one notes that the field of protection of the fruits of intellectual activity is widening, that new titles are appearing (authors’ rights and rights akin to those, data base rights, patents on business methods…) and that the rights of intellectual property are very little respected, if at all in most countries.
But the legitimacy of intellectual property rights, of patents in particular, depends on the search for a balance between on the one hand the concerns of free competition, which must remain the rule of principle, and on the other hand intellectual property rights which are the exception.
In order to attain this balance, particularly for patent law, we need a new, more restrictive definition of the patentable invention.
The legitimacy of intellectual property rights implies, too, that they are subject to a reliable and objective financial evaluation; this double requirement supposes that the titles issued – patents in particular – cannot be weakened by a reconsideration of their validity and that any attacks against these titles – namely counterfeiting – are efficiently sanctioned in all countries.
The legitimacy of intellectual property rights supposes, lastly, that there are some rules and structures making it possible to determine their actual value in the goodwill/assets of companies and their market price, under conditions similar to those which already exist for tangible goods.
II- TO REINFORCE THE MONITORING OF THE EXPLOITATION OF INTELLECTUAL PROPERTY RIGHTS
Since immaterial goods generate almost the whole economic activity, the exercise of the prerogatives they confer to their holders has to be monitored, regulated, so that they will not be diverted from their proper use.
More precisely, if the patent right – the operating monopoly – for the benefit of its holder is founded on the reward granted to the inventor for the invention he carried out, this exclusive right can’t be diverted from its aim, which is to share its use and to benefit society.
The same reasoning applies to all intellectual property rights.
The « raison d’être » of the exclusive right is not to be an instrument, wielded by its holder to get rid of competitors, to prevent their rise and their development, to charge excessive prices, to organize a shortage of the products resulting from the invention or any other goods covered by an intellectual property right.
Like property rights on tangible goods, property rights on intangible property must be limited, by law or by courts, to their function beyond whose borders there is misuse, in this case the violation of the rights of intellectual…property.