Aloïs Troller, ‘Intellectual Property and Justice’, 3 Industrial Property: Monthly Review of the United International Bureaux of Intellectual Property 119-124 (1964)
Troller – Intellectual Property and Justice
Background
Switzerland was not an easy place to develop patent and copyright law, alongside the protection of trademarks − the practical importance of which was readily recognized. Patent protection was controversial and excluded important areas for many years. Copyright protection remained weak for a long time in a country that imported cultural products and services mainly from abroad. Protection of the performing artists, so-called “neighbouring rights”, did not yet exist in the country. The Rome Convention for the Protection of Performers, Producers of Phonograms and Broadcasting Organizations was adopted three years before, in 1961. The patent system was challenged not only by communist thought during the Cold War but also by economists stressing the importance of free markets. The system at that time was still characterized by a clear distinction between industrial property and copyright protection.
In 1964, Alois Troller, the leading Swiss academic and practitioner of intellectual property law, gave a talk at the 75th Anniversary of the Swiss Intellectual Property Office which raised fundamental questions but also depicted the mood and the challenges faced at that juncture. He expounded on why the words and term “intellectual property” included in the name of the corresponding Swiss office since 1889 are more than a perfunctory description, expressing instead the fundamental underpinnings of respect for human creativity. The term ‘intellectual property’, as opposed to its variants of industrial property and copyright, was uniquely in use in Switzerland and Liechtenstein at that time and expressed the overarching philosophical idea and theoretical underpinning of the respecting of property as a human attribute in recognition of human work and creativity. He examines the extent to which the idea of a fundamental right of property is still valid, anticipating the debate on intellectual property and human rights in tension with today’s prevailing concept of intellectual property derived from Anglo-American utilitarianism (David Hume). For Troller, the human dimension is central to the concept of intellectual property, somewhat in contrast to Penrose’s insights on political economy discussed above. His may be a typically European point of view, rooted in idealism. He refers to reason and logic as the main ingredients for bringing about justice in this field, which remains central in further developing intellectual property, including particularly the potential future recognition of traditional knowledge. In this paper, he mentions international law only in passing. The paper focuses on Swiss law and the philosophy of law. But it is obvious that the membership of Switzerland to the Paris and the Berne Conventions and its role in hosting the International Bureau before the creation of WIPO in Geneva form a crucial backbone of domestic law for the quest for recognition and justice in the field of intellectual property.
Summary
The paper sets out by noting the unique naming of the Swiss Intellectual Property Office as opposed to the more common designation of “patent office”. Observing that industrial property and copyright have been widely recognized for many years, the notions come under threat both by Cold War Communism and by economists advocating free markets and who challenge the usefulness of the patent system. Taking recourse to reason and logic, and the idea of property as a fundamental right, he defends the protection of property of the mind as a fundamental right which essentially contributes to human happiness. He concludes by raising the question of what can be done for those who henceforth fail to enjoy the benefits of their intellectual labours. “It is, therefore, our duty always to try and see that, side by side with ‘intellectual property’ at civil law, official legal measures for granting moral and material reward to scientific work and to innovators in the artistic field, are developed more fully and granted more generous financial resources.”