IP, regulation and the enabling state

In one corner there are those who see intellectual property (“IP”) as the basic foundation of innovation: who consider that without it, there would be no encouragement to innovate, and no incentive to invest in innovation. In the other corner are those opposed to IP, who see it as unduly hindering the innovative process; dominating and homogenizing industries; directing efforts towards the fashionable and the profitable; and allowing information and developments, which should be available for all, to be harboured by a small number of IP owners.

From those in the middle, there is some recognition that IP can be seen as reducing competition, to the detriment of the consumer and wider market development;5 and also as producing negative, if not wholly objectionable, social and moral consequences - for example in respect of access to medicines, information and education.

Competition law and human rights law, together with the limits and exceptions contained within IP law, have been prayed in aid to address, or mitigate, the problems and concerns considered. Ongoing research is considering the extent to which these avenues, particularly when combined, could be used as a restraining influence on IP producing a more acceptable balance of interests.