With this collaboration on the IP Consultores blog, I take on the role of leading this team of experts. I want to express my gratitude for the vote of confidence my colleagues have given me in leading this project. Undoubtedly, I am pleased to be part of a team working to ensure that more and more people enjoy the benefits of Intellectual Property in the Americas and the Caribbean.
This project began with the diagnosis that Intellectual Property rights have been undervalued in Mexico. While the causes of this problem are multifaceted, we can outline some hypotheses that shed light on it. It’s worth noting that this issue has widened the gaps in innovation, entrepreneurship, and creativity ecosystems, leading to more significant social inequalities.
From my professional experience, I can affirm that this problem is simply another consequence of the weakness of the Rule of Law in Mexico. The lack of a political culture that reinforces the Rule of Law among critical sectors of society has been crucial in preventing the goal of limiting the arbitrary exercise of political power.
Furthermore, another factor has been the lack of technological, innovation, and entrepreneurial capabilities among a significant portion of the population. It has occurred because the development of these capabilities has stagnated within only a few societal sectors. While this problem isn’t unique to Mexico, it can be pointed out that, in our case, effective public policies addressing this social and economic issue have not been developed.
In this context, at IP Consultores, we believe that we can contribute to solving this problem by involving more and more people in innovation, entrepreneurship, and creativity ecosystems equitably and autonomously. To achieve this objective, our initial contribution should include fostering a culture of Intellectual Property rights among most of the population.
From the Rule of Law to the State of Rights
Mexico is a country where (unfortunately) the constitutional legal culture hasn’t permeated equally across all social sectors. Constitutional legal culture is rooted primarily in the principles of modern constitutionalism, namely the control of public power and the recognition of human rights. The Rule of Law is a political-legal principle that emerged to constrain the exercise of public authority in the Modern Age.
Essentially, this idea arose from the need to limit state power to guarantee a set of fundamental rights for individuals. Although today the understanding of this idea has become widespread, it doesn’t mean its objective has been fully achieved. Societies still exist where discretionary – and, at times, authoritarian – exercise of state power can be observed.
The Rule of Law is a concept built on a fundamental legal principle: legality. This principle means that authorities can only do what the Law orders, while citizens can do anything the Law doesn’t prohibit. This principle of modern constitutionalism encapsulates much of the concept of the Rule of Law.
For a society to have a democratic and constitutional political system, state powers must strictly adhere to the principle of legality. However, respect for human rights must also be ensured for public power’s exercise to have political legitimacy. Only when this stage is reached in a society’s political culture can the transition from the Rule of Law to the State of Rights be said to have occurred.
Towards a Culture of Intellectual Property
At IP Consultores, we have consistently discussed the significance that Intellectual Property rights should hold in the legal system of any society. Thus, we believe it’s essential to advocate for the flourishing of a culture of Intellectual Property rights in the Americas and the Caribbean.
To fully comprehend this goal, it’s essential to understand that Intellectual Property rights are a kind of interdisciplinary subjective rights. We consider them “interdisciplinary” because the scope of these rights goes beyond the legal system. As an Intellectual Property lawyer, I can assert that broadly speaking, the objective of this field is to protect human intellectual creations, regardless of their origin. [i]
Intellectual Property is a concept that encompasses not only the field of Law but also Economics, Technology, Science, Trade, Art, and Culture. Anyone wishing to understand the significance of Intellectual Property must first comprehend the structural framework that underpins this legal area.
Regarding this, it’s worth noting that Property is the archetypal subjective right. From the earliest developments of Roman Law, we can find the social interest in protecting private Property. However, it wasn’t until the transition period between the Middle Ages and the early Modern Age that we see the first attempts to protect inventions, following the trajectory laid out by modern Intellectual Property.[ii]
The Context of Intellectual Property
The thesis about the importance of context in understanding an idea was a contribution made by the Cambridge School – from the field of Intellectual History – during the 20th century. Historian Quentin SKINNER – Emeritus Professor of Humanities at Queen Mary University of London – has taught us that comprehending any idea requires knowledge of the corresponding linguistic and social contexts.[iii]
In this regard, to fully understand Intellectual Property, we must not only grasp the meaning of the different concepts and norms that constitute this legal field, but it’s also crucial to understand the context of the concept itself.
There are three areas of human activity directly impacted by Intellectual Property: Culture, Technology, and Trade. While we won’t delve into whether technology and trade can be considered subfields of culture, for now, our focus is on understanding the domains affected by Intellectual Property. In this sense, we believe the context of Intellectual Property is found within innovation, entrepreneurship, and creativity ecosystems.
Economic Ecosystems and Intellectual Property
In the innovation ecosystem, it’s relatively straightforward to understand how Intellectual Property operates. For example, any invention can be protected by a patent. A patent essentially grants exclusive rights to the inventor over their invention for a specified period. In this case, we can see how Intellectual Property aims to protect the fruits of imagination and labor.
In the entrepreneurship ecosystem, trademarks are the quintessential Intellectual Property rights. Anyone can design a product or service to offer in the market. The entrepreneur should secure an Intellectual Property right by registering a trademark for commercial exploitation of the product or service.
We can also see how Intellectual Property affects the creativity ecosystem. The prime example here is copyright, which anyone who creates a work of any kind recognizes. While copyright holders don’t need official recognition from the state to claim authorship of their work, it’s necessary for commercial use.
At IP Consultores, we work to ensure that no creator, inventor, or entrepreneur jeopardizes their Intellectual Property rights due to a lack of specialized legal advice. Additionally, our mission is to contribute to the comprehension of this field, nurturing a culture of Intellectual Property rights in the Americas and the Caribbean.
The economic, social, cultural, and political challenges of the 21st century drive us to make everyday contributions toward improving the living conditions of millions. Innovation, entrepreneurship, and creativity ecosystems are economic and social spaces where sustainable and equitable global transformations can be catalyzed, benefiting all individuals.
Finally, I would like to express my heartfelt gratitude to all individuals, institutions, and organizations that have contributed to making IP Consultores a reality in Mexico and the Americas. As for me, I commit wholeheartedly to fulfilling the mission our team has undertaken. Because, without a doubt, this journey has already begun!
[i] An excellent discussion of the meaning of Intellectual Property Law can be found at EPSTEIN, Richard A., “The Basic Structure of Intellectual Property Law,” in DREYFUSS, Rochelle and PILA, Justine (eds.), The Oxford Handbook of Intellectual Property Law, Oxford University Press, 2018, pp. 26-56.
[ii] SEVILLE, Catherine, “The Emergence and Development of Intellectual Property Law in Western Europe,” in DREYFUSS, Rochelle and PILA, Justine (eds.), The Oxford Handbook of Intellectual Property Law, Oxford University Press, 2018, p. 173.
[iii] SKINNER, Quentin, Visions of Politics. Volume I: Regarding Method, Cambridge University Press, 2002, pp. 86-87, McMAHON, Darrin, “The Return of the History of Ideas?”, in McMAHON, Darrin & MOYN, Samuel (eds.), Rethinking Modern European Intellectual History, New York, Oxford University Press, 2014, p. 20.
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