Third world States should use laws for commercial value

The phrase “Hakuna Matata” is today the intellectual property of an American company, Disney World. It was first registered as a trademark in the United States in 1994. Disney World have turned a common phrase into a piece of property that has value. The instrument they used to achieve this is the law. Specifically, intellectual property law.

Intellectual property is the currency of our time. There was a time the global economy was driven by the production of goods. Over time, production was replaced by the supply of services. Today, the engine of the global economy is powered by the provision of information.

We live in the age of satellite and cable transmission, broadcast, interactive media, social media, computers and the internet, the smartphone, data creation and transfer, entertainment and education, fact and fancy. All these are intellectual property. Virtually everyone owns some intellectual property. Our feet may be planted on the ground, but our heads are in cyberspace.

It is not just human beings that invent. The weaver bird weaves a nest of great intricacy. The ants construct anthills, gigantic for beings their size. The bees construct honeycombs. The spider weaves its web. Human beings have taken it one step further by inventing the use of law to protect their inventions from replication without compensation. 

Keep it in one’s head

Intellectual property is a product of the intellect. The fruits of human intellect would exist even if they enjoyed no legal protection. In the same way a piece of land would exist even if no one claims the legal right to own or possess it. The easiest way to protect intellectual property is to keep it in one’s head. If a person possesses in his head a good idea, he runs no risk that anyone else will see or find it, and thereby appropriate it.

If it is preferable to enjoy an enforceable legal right to one’s property rather than to put a fence of barbed wire around it, the purpose of intellectual property law is to ensure that the holder of it benefits from it. The primary purpose of intellectual property law is therefore to create and preserve value in man’s intellectual endeavours. 

Where land is purchased, the owner gains value over time, whether or not he develops the land or sells it. In contrast, a person who acquires an intellectual property right can only derive financial benefit from it by using it commercially. It is the law that enables commercial exploitation of intellectual property. Disney World were authorised to register “Hakuna Matata” as a trademark in the United States because they were able to prove that the phrase was associated with its business and goods and services it provided.

Disney World was able to prove that the phrase held commercial value for its business and the goods and services it provided. Law, like intellectual property itself, is a social construct. It is man-made. Law itself is an invention. The developed world has for centuries used law, not just as a rules book, but as an instrument to create and preserve value. Intellectual property is intangible. So are companies, governments and political parties.

Though physically non-existent, intellectual property, companies, governments and political parties find life in written statutes, human imagination and human interaction.

They derive value and authority from paper. The challenge for governments and the legal fraternity in the third world is to find ways to use laws in the same way. Not just as rule books, but as instruments of creating and preserving value as well. 

- The writer is an Advocate of the High Court of Kenya. [email protected]