The Logic of International Intellectual Property Protection

Abstract

As Intellectual Property becomes increasingly vital to our nation’s wealth and prosperity, the need to ensure its protection on a global basis increases correspondingly. The American economy suffers staggering losses each year to international IP theft. According to the IP Theft Commission (2013), these losses likely exceed $300 billion annually. IP theft is an injustice to the IP owners, diminishes economic prosperity, and undermines job opportunities. Indeed, this is a reason why it is so important to conclude international trade agreements, such as the recently-negotiated Trans-Pacific Partnership, that contain meaningful intellectual property protections. The Constitution expressly makes protection of intellectual property rights an imperative of the federal government. The Intellectual Property Clause contained in Article I, Section 8, provides that Congress has the power “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The IP Clause is premised on the understanding that copyrights and patent rights are property rights grounded in the intellectual and physical labors of authors and inventors. There is strong constitutional foundation for international protection of Americans’ copyrights and patent rights. The IP Clause permits protection of foreign intellectual property under federal law – or at the very least, permits it as a means of securing American IP rights abroad. Federal legal recognition of foreign IP constitutes fair play. As a matter of common sense and experience, doing justice, and providing comparable treatment to rights of foreigners facilitates foreign cooperation to protect American IP rights. Treaty-making with foreign nations constitutes another critical constitutional mechanism for securing international protections for Americans’ IP rights.