Intellectual property

This article is about the legal concept. For the 2006 film, see Intellectual Property (film).

Intellectual property (IP) is a legal field that refers to creations of the mind such as musical, literary, and artistic works; inventions; and symbols, names, images, and designs used in commerce, including copyrights, trademarks, patents, and related rights. Under intellectual property law, the holder of one of these abstract "properties" has certain exclusive rights to the creative work, commercial symbol, or invention which is covered by it.

The laws of some governments have recognized forms of intellectual property for a few centuries, but other governments have done so only recently, and some scholars question the legitimacy and philosophical basis of such laws. Several international treaties since the late 19th century have standardized many aspects of the law, but the laws and enforcement still vary widely from one jurisdiction to another. Furthermore, the understanding and observance of intellectual property laws by individuals are also widely varied.

Overview

Intellectual property confers a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves (see idea-expression divide). The term "intellectual property" denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself.

Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap.

• Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time (historically a period of between 10 to 30 years depending on jurisdiction, but more recently the life of the author plus several decades). Throughout the EU and EEA, under the Duration Directive (or the Term Directive), the copyright term for literacy, artistic and other works is life of the creator plus 70 years.

• A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practising the invention without a license from the inventor for a certain period of time (typically 20 years from the filing date of a patent application).

• A trademark is a distinctive sign which is used to distinguish the products or services of different businesses.

• An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).

• A trade secret (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business. Public disclosure of trade secrets may sometimes be illegal.

Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.

Purpose

IP rights give creators economic rights to their creations, thereby providing an incentive for the author to share the information rather than keep it secret. The legal protections granted by IP laws are credited with siginificant contributions toward economic growth.

Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets. Likewise, industries whose reliance on IP protections are estimated to produce 72 percent more value per added employee than non-IP industries.

Additionally, a joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries and found that "a positive correlation between the strengthening of the IP system and subsequent economic growth."

History

See also: History of patent law and History of copyright law

The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown. in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates, or the flocks he rears." (1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years".

In Europe, French author A. Nion mentioned "propriété intellectuelle" in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization (WIPO), which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh-Dole Act in 1980.

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as "property" does not seem to exist. The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, which is further discussed in the Shulchan Aruch.

However, the legal system of most of the Western world does not have provisions for intellectual property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes, except in certain footnotes citing the titles of certain Bills. The term used in the statutes and in the Constitution is "exclusive rights".

Criticism

Main article: Criticism of intellectual property

Some critics of intellectual property, such as those in the free culture movement, characterize it as intellectual protectionism or intellectual monopoly, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. Some critics reject the term "intellectual property" altogether. Richard Stallman argues that it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He suggests the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." These critics advocate referring to copyrights, patents and trademarks in the singular, and warn against abstracting disparate laws into a collective term.

Academic courses

The study of intellectual property has grown in to a distinct academic discipline, most notably in law schools from higher education institutions in developed countries such as the UK, Germany, USA and Canada. Postgraduate courses (often referred to as an LLM or Master of Laws) are available for those looking to further their academic exposure and gain internationally recognised qualifications for intellectual property.

See also

• List of intellectual property related topics

Further reading

• Connell, Shaun (October 2007). "Intellectual Ownership". Retrieved 2007-12-13.
• Templeton, Brad (October 2004). "10 Big Myths about copyright explained". Retrieved 2007-09-08.
• "Law/copyright/FAQ Index". Internet FAQ Archives, Advameg, Inc. 1994-01-06. Retrieved 2007-09-08. {{cite web}}: Check date values in: |date= (help)

Bibliography

• Kinsella, Stephan. "Against Intellectual Property." Journal of Libertarian Studies 15.2 (Spring 2001): 1-53. (Available in .PDF format from Ludwig Von Mises Institute.)
• Mazzone, Jason. Copyfraud. Brooklyn Law School, Legal Studies Paper No. 40. New York University Law Review 81 (2006): 1026. (Abstract.)
• Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright. 3rd ed. New York: West/Wadsworth, 2000. ISBN 0-314-23519-1. (Textbook focusing particularly on copyright and patent law.)
• Moore, Adam D., Intellectual Property and Information Control: Philosophic Foundations and Contemporary Issues. New Brunswick NJ: Transaction Publishing/Rutgers University, Fall 2004 paperback, Fall 2001 hardback, 252 pages.
• Perelman, Michael. Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity. New York: Palgrave Macmillan, 2002. ISBN 0-312-29408-5. (A critical discussion of some of the social, scientific and cultural impacts of recent intellectual property developments.)
• Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. New York: West/Wadsworth, 2003, ISBN 0-314-06599-7. (Textbook.)
• Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. New York: Basic Books, 2004.
• –––. Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. New York: NYU Press, 2001.
• Andrew Gowers. "Gowers Review of Intellectual Property." Her Majesty's Treasury, December 2006. [1] ISBN-13: 9-780118-4083-9.