We should adapt our laws to new realities so that they can serve their intended purpose better
Prince Rogers Nelson was arguably the finest musician of his generation. More widely known by just his first name, he was a singer-songwriter who was effortlessly proficient in a wide range of musical instruments than should have been possible. He died on 21 April 2016 and was mourned by all—from US President Barack Obama to the cast of Hamilton—and buildings around the world coloured themselves purple for a night.
Within a year of his death, the Pantone Colour Institute created a brand new shade of purple called Love Symbol #2 in his memory. His estate immediately tried to secure the rights to it, so that no one else could use that specific shade of purple at concerts. In doing so, it looked to join a long line of entities that have done what was previously believed to be impossible—claim exclusive rights over the use of a colour.
We may not know it, but a number of companies already have exclusive rights over colours closely identified with their brands. UPS has a trademark over the shade of brown its delivery vans are coloured with, 3M for the unmistakeable Post-It yellow, Fiskars for the orange of its scissor handles and T-Mobile for the magenta of its logo. And they vigorously prosecute violations of their trademarks. Mattel sued MCA Records for the use of its trademarked pink colour on the music video artwork for Barbie Girl by Aqua. Christian Louboutin sued rival Yves Saint Laurent to prevent the latter from infringing its trademark red shoe soles.
You don’t need to be an intellectual property lawyer to realize just how self-destructive this can become. There are only so many colours and we will run out of shades long before we run out of companies that want them. But even before that, brands will lay claim to shades so similar to each other that no one will be able to tell them apart.
To me, this is just another example of how the boundaries of intellectual property protection are being stretched beyond their tolerance limits.
Take a look at what is happening in copyright law. Successive extensions of copyright terms have allowed royalties to be collected on the use of Mickey Mouse well beyond the period of 56 years that was the original entitlement based on when the character was first created. Mickey Mouse will finally come into the public domain on 1 January 2024—unless copyright law is further amended before that. Even the rights to Happy Birthday lie in corporate hands, earning them approximately $2 million a year in royalties each time the song was used in a movie, TV show or advertisement. Until, that was, a federal judge in the US invalidated its claim on the grounds that copyright to the song’s lyrics had never been validly transferred in the first place.
Patents were originally conceptualized as a way to offer inventors an incentive to invest in research and development—particularly in areas with a historically low strike rate of success. Unfortunately, instead of encouraging research into new molecules, it made pharmaceutical companies divert considerable resources into finding ways to extend the validity of existing blockbuster drugs—long beyond the original term of their patents over it. What’s worse, thanks to the one-size-fits-all nature of patent protection, all inventions are entitled to the same duration of protection—whether they took a lifetime to invent or are simple software innovations that are rolled out every six months or so with very little effort.
Intellectual property laws were supposed to encourage creativity, promote innovation and protect brand value. They did this by creating artificial monopolies that allowed holders of exclusive rights to monetize their artistic creations and inventions and ensure that no one else profits unfairly by passing their products off under brands other than what they themselves have built their reputations on for decades. Monopolies, however, are inherently unfair, and if we are not careful, what was intended to protect artists and inventors will enable aggregators, publishers and large corporate entities to preserve their entrenched positions.
Thankfully, India has for the most part refrained from going down the path taken by the US. You cannot, for instance, claim trademark rights over a colour in India, unless it is associated with a registered mark. And while it is true that the term of copyright law has been extended from time to time in India, this has largely been in order to stay in conformity with what other countries have been doing. While more than a few software patents have been granted in India, our patent office sets standards far higher than those applied in the US. To its credit, it has held firm against attempts to ‘evergreen’ existing patents, despite strong pressure brought to bear by Big Pharma.
The time has come to re-evaluate how intangible property should be protected today. We should not be afraid to discard laws and legal frameworks that are no longer relevant in the light of modern technologies and commercial realities, even if they might have made sense when they were first enacted. Where necessary, we should not shy away from creating new classes of intellectual property designed to protect software and digital technologies, instead of trying to force-fit them into pigeonholes that were never intended to accommodate their contours. Above all, we need to ensure that temporary protections introduced to offer an incentive for artistic, intellectual and commercial endeavours are not, whether by oversight or design, made permanent.
Rahul Matthan is a partner at Trilegal and also has a podcast by the name Ex Machina.
Source: Mintepaper, 3/08/22
