The Battle for the Right of Intellectual Property

Gustavo Bahuscheskyj Corrêa

Lawyer – Leão Intellectual Property

Rudolf Von Jhering in its most important work “Battle for Right” from 1872 stated that the finality of the Law is the peace and the way to reach it is the battle. According to the author, the titular of a violated right finds himself in front of a question: “should defend its right, resist to the oppressor, or in the other words, should battle or should abandon the right to escape the battle? The decision about it belongs to him. However, any decision involves a sacrifice: in one case the right is sacrificed on behalf of the peace; in the other case the peace that is sacrificed on behalf of the right”.. Analyzing the ideas of the German professor, we should consider that the right it is not applicable only as a way to satisfy personal interest, although if there is not individual applicability of its prerogatives it can actuate against the rule of law. According to the professor, concerning the inertia of the titular of the right it is “inoffensive when it is practiced by one person; however it would be the chaos of the law if it is adopted as a general rule”.

In such a manner, according to the author, the decision about battling or not influence not just the person, but the whole collectivity, because its inertia would make the law weak and it would also damage the rights of other people. Now if we reflect about the lessons of Jhering, one the most brilliant jurists of the 19th century, and interpret it in the intellectual property context, we will realize that the acceptance of piracy and violation of trademarks and patents, for instance, even if in a few cases, it depreciates the rule of law and fortify those who commit illegal acts. It will culminate in the moment where the real titular of the rights will not have power to claim for justice because the tacit acceptance of the society will turn that acts as acceptable. Concerning the piracy, nowadays the situation is extremely worrying; however there is still time to revert the situation. The preservation of this and the others rights of intellectual property is an aim to be established.

The battle for the preservation of the Law belongs to everybody and those who has legitimacy to actuate should exercise its rights and take active part on behalf of the society.