intellectual property

n.
A product of the intellect that has commercial value, including copyrighted property such as literary or artistic works, and ideational property, such as patents, appellations of origin, business methods, and industrial processes.

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intellectual property

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Property that derives from the work of an individual's mind or intellect. Early copyright law aimed to protect the economic interests of book publishers rather than the intellectual rights of authors. Modern copyright law protects the labour of elaborating an idea, but not the idea itself. The concept of discovery also plays a role in intellectual property rights: a patent is awarded to one who can demonstrate that he or she has invented something not previously known. The World Trade Organization requires members to establish and enforce minimum levels of copyright, patent, and trademark protection within their jurisdictions. The World Intellectual Property Organization, which began operations in 1970, promotes the worldwide protection of both industrial property (inventions, trademarks, and designs) and copyrighted materials (literary, musical, photographic, and other artistic works).

For more information on intellectual property, visit Britannica.com.

Barron's Business Dictionary:

intellectual property

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Any concept, idea, literary creation, computer program, or other artistic or creative work that is definable, measurable, and proprietary in nature.

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Gale Encyclopedia of Small Business:

Intellectual Property

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Intellectual property is an intangible creation of the human mind, usually expressed or translated into a tangible form, that is assigned certain rights of property. Examples of intellectual property include an author's copyright on a book or article, a distinctive logo design representing a soft drink company and its products, unique design elements of a web site, or a patent on the process to manufacture chewing gum. Intellectual property law covers the protection of copyrights, patents, trademarks, and trade secrets, as well as other legal areas, such as unfair competition. In effect, intellectual property laws give the creator of a new and unique product or idea a temporary monopoly on its use. The value of intellectual property to an individual or company is not based on physical properties, such as size and structure. Instead, intellectual property is valuable because it represents ownership and an exclusive right to use, manufacture, reproduce, or promote a unique creation or idea. In this way, it is perhaps the most valuable asset a person or small business can own.

Development of Intellectual Property Laws

The laws protecting intellectual property in the United States exist at both the state and federal levels. State laws cover a broad spectrum of intellectual property fields, from trade secrets to the right of publicity. The laws differ somewhat from state to state. At the federal level, the Constitution and legislation authorized under the Constitution deal exclusively with patents and copyrights, and partially with trademarks and related areas of unfair competition.

Intellectual property protection first became an important issue at an international level during trade and tariff negotiations in the nineteenth century, and has remained so ever since. One of the first international treaties relating to intellectual property in the broadest sense was the International Convention for the Protection of Industrial Property, or the Paris Convention. Written in 1883, the treaty created under the Paris Convention provided protection for such properties as patents, industrial models and designs, trademarks, and trade names. Over 100 countries have signed the Paris Convention treaty, and it has been modified several times. Two of the most important provisions of the treaty relate to the rights of national treatment and priority.

The right of national treatment ensures that those individuals seeking a patent or trademark in a foreign country will not be discriminated against and will receive the same rights as a citizen of that country. The right of priority provides an inventor one year from the date of filing a patent application in his or her home country (six months for a trademark or design application) to file an application in a foreign country. The legal, effective date of application in the foreign country is then retroactively the legal, effective filing date in the home country, provided the application is made within the protection period. If the invention is made public prior to filing the home country application, however, the right of priority in a foreign country is no longer applicable.

Enforcement and protection of intellectual property at the international level has historically been extremely complex. Laws have varied significantly from country to country, and the political climate within each country has influenced the extent of protection available. Separate legislation and treaties specifically addressed relevant procedures, conventions, and standards for each area within the scope of intellectual property, such as copyright or trade secrets.

Many U.S. and international laws relating to intellectual property were significantly altered with the 1994 passage of the General Agreement on Tariffs and Trade (GATT). In fact, the member nations that signed the GATT committed themselves to a higher degree of intellectual property protection than had been provided under any earlier multinational treaties. Under the guidance of the World Trade Organization (WTO), all member nations were required to adopt specific provisions for the enforcement of rights and settlement of disputes relating to intellectual property. Under these provisions, trademark counterfeiting and commercial copyright piracy are subject to criminal penalties.

Today, the strong protections of intellectual property are recognized as one of the cornerstones of the formation and growth of small businesses in the United States, especially since the advent of the Internet and other new technologies have placed a premium on new ideas and innovations. Intellectual property allows individuals who come up with a new idea to enjoy the exclusive use of that idea for a certain period of time, which can be a significant monetary incentive for entrepreneurs. But intellectual property law is extraordinarily complex, so small business owners interested in IP issues should consult a legal expert in order to protect themselves to the full extent of the law. "The law on intellectual property … is everywhere both comparatively new and in flux, " observed The Economist (US). It is also important for would-be entrepreneurs to be aware of the legal rights of others as they prepare to engage in business activities. After all, few small companies can withstand the rigors of defending themselves from patent infringement lawsuits (especially if the charge is legitimate).

Intellectual and technological property

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A patent is a capitalist device that like many great ideas works on a paradoxical principle: The way to spread the benefits of an invention is to restrict the number of people who can exploit it.

Other forms of intellectual property are protected in different ways. A scientific discovery, which is intended to be shared by everyone, is covered by informal agreement in the scientific community granting "ownership" with priority. No legal rights are deemed possible. A trademark or trade name can be registered and protected, but that is solely for the protection of the owner. Copyright is closer in concept to patent, but is much more concerned with protecting structure and substance of thought than it is with providing a monopoly on an idea or a structure. Indeed, ideas are not copyrightable; only their expression and arrangement can be copyrighted. Ideas for inventions, however, are the basis of monopoly; and monopoly is the original purpose of the patent.

Capitalism and the middle class were babies of the Renaissance, but they did not become adult ideas until the Industrial Revolution. Patents have the same history, starting in Italy in the 15th and 16th centuries. Queen Elizabeth I may have been the first British monarch to issue monopolies, which included but were not limited to patents. By the time of James I, the business of royal monopolies had gotten out of hand, and a succession of efforts to control monopolies, which treated inventions differently from other monopolies, had the somewhat inadvertent effect of creating the first English Patent Law, although it was not codified as such until late in the 19th century, after the example of the Patent Law in the United States.

By the time the U.S. Constitution was being written, the Founding Fathers had a good philosophical grasp of intellectual property, and provisions regarding it were included: Article I, Section 8 gave Congress the power "To promote the progress of Science and Useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Almost as soon as the Constitution was ratified, Congress proceeded to set up a patent law to protect monopolies on inventions. By 1836 the U.S. Patent Office was functioning effectively, and it soon became apparent that invention fared better under the U.S. system than under any other. A monopoly for a limited time on a specific invention encouraged people to invent, knowing they could be protected, and enabled them to sell rights to others who had the capital or existing trade to manufacture and promote an invention.

In 1883 Great Britain consolidated its patent laws along U.S. lines and the International Convention in Paris worked out a way to handle patents in its many signatory nations. The European Patent Organization of 1953 was among several agreements that were precursors to the European Community. Today there are effective ways for an inventor to file a patent once in one country and, with suitable payments and searches, have it accepted in nations around the world.

Gale Encyclopedia of US History:

Intellectual Property

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Intellectual Property describes the interests protected by the laws of patents, copyrights, trademarks, and trade secrets. It is a phrase of convenience rather than a term of art; its precise boundaries are not agreed upon, or crucial. Patents, copyrights, and trademarks all predate the term "intellectual property," which, though known in the nineteenth century, was not widely used until the 1960s. Historically, property was divided into two classes, real and personal. Real property consisted of interests in land; personal property consisted of everything else. Personal property included not only tangibles, such as goods, but intangibles such as shares of stock, rights to receive payment, and copyrights and patents. It was understood by the eighteenth century that patents and copyrights were socially desirable because potential inventors and authors, unless rewarded, would underinvest in inventing and writing. Patents and copyrights provide rewards proportional to the value of the work. By exploiting monopolies over patentable and copyrightable subject matter, creators can charge amounts sufficient to recapture their capital investment plus make a profit; this is comparable to granting farmers the exclusive rights to harvest crops that have required labor to plant and tend.

Patents are granted after examination by the Patent Office and confer twenty (previously seventeen) years of monopoly rights in works that have the characteristics of utility, novelty, and nonobviousness. Copyrights arise upon embodiment of works of authorship in a tangible medium and now last for much longer than previously; today, in most cases, they endure for the life of the author plus seventy years. Registration, though desirable, is not essential.

Trademarks are usually counted as intellectual property but have quite a different rationale and arise differently from either patents or copyrights. The reason for protecting trademarks is not to promote investment in their creation but to protect consumers from being deceived as to the origin of goods bearing them. Trademark rights develop as consumers associate the marks on the goods with a single source. Courts have often said trademark rights are not property rights but are part of tort law (though recent developments arguably render trademarks more property like).Whatever the theory, the practice persists of calling trademarks a species of intellectual property, if only because the same lawyers who do patent and copyright work also advise on trademark questions.

Trade secret law confers on those who manage to keep valuable information to themselves the competitive advantage of exclusive access to that information. It is arguably tort law, rather than property law, but since the subject matter of the secret is often identical to the subject matter of the patent or copyright, its designation as intellectual property is not surprising.

Bibliography

Chisum, Donald S., and Michael A. Jacobs. Understanding Intellectual Property Law. New York: Matthew Bender, 1992.

Halpern, Sheldon W., Craig Allen Nard, and Kenneth L. Port. Fundamentals of United States Intellectual Property Law: Copyright, Patent, and Trademark. The Hague, Netherlands: Kluwer Law International, 1999.

West's Encyclopedia of American Law:

Intellectual Property

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This entry contains information applicable to United States law only.

Intellectual property describes a wide variety of property created by musicians, authors, artists, and inventors. The law of intellectual property typically encompasses the areas of copyright, patent, and trademark law. It is designed to encourage the development of art, science, and information by granting certainproperty rights to all artists, which include inventors in both the arts and the sciences. These rights allow artists to protect themselves from infringement, or the unauthorized use and misuse of their creations.

Copyright laws have roots in eighteenth-century English law. Comprehensive patent laws can be traced to seventeenth-century England, and they have been a part of U.S. law since the colonial period. The copyright and patent concepts were both included in the U.S. Constitution. Under Article I, Section 8, Clause 8, of the Constitution, "The Congress shall have Power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." The first trademark laws were passed by Congress in the late nineteenth century.

The bulk of intellectual property law is contained in federal statutes. Copyrights are protected by the Copyright Act (17 U.S.C.A. § 101 et seq. [1994]), patents are covered in the Patent Act (35 U.S.C.A. § 101 et seq. [1994]), and trademark protection is provided by the Lanham Act (also known as the Trademark Act) (15 U.S.C.A. § 1501 et seq. [1994]).

Intellectual property laws give artists the exclusive right to profit from their work for a particular limited period. For copyrighted material, the exclusive right lasts for fifty years beyond the death of the author. The length of the right can vary forpatents, but in most cases it lasts for twenty years. Trademark rights are exclusive for ten years, and can be continually renewed for subsequent ten-year periods.

Intellectual property laws do not fall in the category of criminal law. Some copyright laws authorize criminal penalties, but by and large, the body of intellectual property law is concerned with prevention and compensation, both of which are civil matters. This means that the artist, not the government, is responsible for enforcement.

Intellectual property laws provide artists with the power to enforce their property rights in civil court. They provide for damages when unauthorized use or misuse has occurred. They also provide forinjunctions, or court orders, to prevent unauthorized use or misuse.

The property protected by intellectual property laws must be in a tangible form. For example, a musician cannot claim copyright protection for a melody unless it has been written down or somehow actualized and affixed with a recognizable abbreviation. A formula or device cannot receive patent protection unless it has been presented in whole to the Patent and Trademark Office. A symbol cannot receive trademark protection unless it has been placed on goods or used in connection with services.

Copyright laws grant to authors, artists, composers, and publishers the exclusive right to produce and distribute expressive and original work. Only expressive pieces, or writings, may receive copyright protection. A writing need not be words on paper: in copyright law, it can be a painting, sculpture, or other work of art. The writing element merely requires that a work of art, before receiving copyright protection, must be reduced to some tangible form. This may be on paper, on film, on audiotape, or on any other tangible instrument that can be reproduced.

The writing requirement ensures that copyrighted material is capable of being reproduced. Without this requirement artists could not be expected to know whether they were infringing on the original work of another person. The writing requirement also enforces the copyright rule that ideas cannot be copyrighted: only the expression of ideas can be protected.

Copyrighted material also must be original. This means that there must be something new about the work that sets it apart from previous similar works. If the variation is more than trivial, the work will receive copyright protection.

Functionality can be a factor in copyright law. The copyrights to architectural design, for example, are generally reserved for architectural works that are not functional. If the only purpose or function of a particular design is utilitarian, the work cannot be copyrighted. For instance, a person may not copyright a simple design for a water spigot. If, however, a person creates a fancy water spigot, the design is copyrightable.

Copyrighted material can receive varying degrees of protection. The scope of protection is generally limited to the original work that is in the writing. For example, assume that an artist has created a sculpture of the moon. The sculptor may not prevent others from making sculptures of the moon. However, the sculptor may prevent others from making sculptures of the moon that are exact replicas of his own sculpture.

Copyright protection gives the copyright holder the exclusive right to (1) reproduce the copyrighted work, (2) create derivative works from the work, (3) distribute the work, (4) perform the work, and (5) display the work. The first two rights are infringed whether they are violated in public or in private. The last three rights may be infringed only if they are violated in public. Public is defined under the Copyright Act as a performance or display to a "substantial number of persons" outside of friends and family (17 U.S.C.A. § 101).

Infringement of copyright occurs whenever someone exercises the exclusive rights of the copyright owner without the owner's permission. The infringement need not be intentional. Copyright owners usually prove infringement in court by showing that copying occurred, and that the copying amounted to impermissible appropriation. These showings require an analysis and comparison of the copyrighted work and the disputed work. Many general rules also relate to infringement of certain works. For example, a character created in a copyrighted work may not receive copyright protection unless the character is developed in great detail and a character in the disputed work closely resembles that character.

The most important exception to the exclusive rights of the copyright holder is the "fair use" doctrine. This doctrine allows the general public to use copyrighted material without permission in certain situations. These situations include educational activities, literary and social criticism, parody, and news reporting. Whether a particular use is fair depends on a number of factors, including whether the use is for profit, what proportion of the copyrighted material is used, and what economic effect the use has on the copyright owner.

Patent

Patent laws encourage private investment in new technologies by granting to artists the right to forbid all others to produce and distribute technological information that is new, useful, and nonobvious. The statutory requirements for patent protection are more stringent than those for copyright protection. Furthermore, because patent protection for commercial products or processes can give a tremendous market advantage to businesses, those seeking patents often find opposition to their applications. Patent protection can be obtained only through the U.S. Patent Office. Generally, only new, useful, and nonobvious processes or products will be approved for patent protection.

The novelty requirement focuses on events that occur prior to the invention. Under section 102 of the Patent Act, an invention is not novel if it is publicly used, sold, or patented by another inventor within twelve months of the patent application. This definition implements the public policy that favors quick disclosure of technological progress.

Often, two inventors apply for a patent for the same product or process within the same twelve-month period. Three factors determine who wins the patent: the date and time that the product or process was conceived, the date and time that the product or process was reduced to practice, and the diligence used to pursue patent protection and perfect the discovery. Generally, the first inventor to conceive the product or process has priority in the application process. However, if the second inventor is the first to reduce the product or process to practice, and the first inventor does not use diligence to obtain patent protection, the second inventor is given priority in the application process.

The utility requirement ensures that the product or process receiving patent protection will have some beneficial use. The inventor must specify in the application a specific utility for the invention. If the application is for a process, the process must be useful with respect to a product. A process that is new and nonobvious but useless does not increase knowledge or confer any benefit on society.

Nonobviousness is not the same as novelty. Not everything novel is nonobvious. However, anything that is nonobvious is novel, unless it has already been patented. The nonobvious requirement focuses on existing technology, or prior art. In determining whether an invention is nonobvious, the Patent Office analyzes the prior art, examines the differences between the invention and the prior art, and determines the level of ordinary skill in the art. Generally, if an invention is obvious to a person of ordinary skill in the relevant art, it is not patentable.

When an inventor claims that his or her patent has been infringed, the court generally engages in a two-step process. First, the court analyzes all the relevant patent documents. Then, the court reads the patent documents and compares them with the device or process that is accused of infringement. If each element of the accused device or process substantially duplicates an element in the patented device or process, the court may declare that the patent has been infringed. Infringement can occur only if another person uses, makes, or sells the patented device or process without the permission of the person who has received the patent, or the patentee.

When a patented device or process is infringed, the patent holder may recover in damages an amount equal to a reasonable royalty. If the infringement was willful, the infringing party may be forced to pay three times the reasonable royalty. If successful in court, the patent holder may also recover court costs and attorneys' fees. If the patent holder anticipates infringement, she or he may apply for an injunction, or court order. An injunction in such a case would prohibit a certain party from infringing the patent. An injunction may also issue after a finding of infringement, to prevent repeat infringement.

Trademark

Trademark laws allow businesses to protect the symbolic information that relates to their goods and services, by preventing the use of such information by competitors. To receive trademark protection, a mark must be distinctive. Distinctive generally applies to any coined or fanciful word or term that does not closely resemble an existing mark. No mark will receive trademark protection if it is a common or descriptive term used in the marketplace.

To receive trademark protection, a mark must be used in the marketplace. If two or more marketers claim ownership of a certain mark, the first user of the mark will usually receive the protection. However, if the mark is known only in a limited geographic area, it may not receive protection in areas where it is unknown to consumers.

Infringement occurs if a mark is likely to cause confusion among consumers. In determining whether confusion is likely, the court examines a number of factors, including the similarity between the two marks in appearance, sound, connotation, and impression; the similarity of the goods or services that the respective marks represent; the similarity of the markets; whether the sale of the goods or services is inspired by impulse or only after careful consideration by the buyer; the level of public awareness of the mark; whether shoppers are actually confused; the number and nature of similar marks on similar goods or services; the length of time of concurrent use without actual confusion on the part of shoppers; and the variety of goods or services that the mark represents (In re E. I. duPont de Nemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563 [1973]).

Defenses to infringement include fair use and collateral use. Fair use occurs when the second user, or repossessor, uses a protected mark in a nonconspicuous way to identify a component of a good or service. For example, a restaurant can use a protected mark to advertise that it serves a particular brand of soft drink without infringing the mark. The restaurant cannot, however, identify itself by the mark without infringing the mark.

Collateral use is use of the same mark in a different market. For example, assume that a tree surgeon has received trademark protection for the mark Tree Huggers. This protection may not prevent a business that sells logging boots from obtaining the same mark. However, if the mark for the boots is written or otherwise appears with the same defining characteristics as the mark for the tree surgeon, it risks being denied trademark protection, depending on whether it can be confused by consumers.

Remedies for infringement of a protected trademark consist of damages for the profits lost owing to the infringement, recovery of the profits realized by the infringer owing to the infringement, and attorneys' fees. A trademark holder may also obtain injunctive relief to prevent infringement.

Other Forms of Intellectual Property The body of intellectual property law also includes laws relating totrade secrets, unfair competition, and the right of publicity. Trade secret laws protect any formula, pattern, device, or compilation of information that provides a business advantage over competitors who do not use or know of the formula, pattern, device, or compilation of information. A strategy to increase worker productivity, for example, is a trade secret. Trade secrets do not receive patent protection because they are not inventive. Trade secret laws are included in intellectual property laws because, like other intellectual property laws, they prevent the unauthorized use of certain information.

Unfair competition laws cover the misuse and misappropriation of a product for financial gain, by protecting valuable information of a business that does not qualify for copyright or trademark protection. For example, assume that a business has developed a popular cologne with distinctive packaging. Now assume that another business has begun to manufacture the same product with virtually identical packaging in an attempt to capitalize on the success of the original cologne. Even though the knockoff is not an exact copy of the original and does not infringe trademark protection, the first business may protect itself through unfair competition laws. The test to determine whether a business is liable for unfair competition is whether the two products could be confused by a reasonable shopper.

The right of publicity is the right of a person to control the commercial value and exploitation of his or her name and likeness. Because right-of-publicity laws promote artistic pursuits, they are included in intellectual property law. These laws are usually reserved for celebrities and other public figures whose name and image are important to their career. By allowing celebrities the right to control the commercial use of their name and image, right-of-publicity laws protect the commercial potential of entertainers.

Recent Developments

One big problem that artists face is protecting their property in other countries. Not all countries subscribe to international agreements regarding intellectual property, and this has led to widespread unauthorized copying. In the 1990s China and Mexico were identified as serious offenders. In both countries music and films were copied and sold openly without compensation to the creators. The United States threatened to impose trade sanctions against China if it did not observe international copyright treaties. Such threats illustrate that the United States places a high priority on protecting the right of artists to profit from their work.

See: Art Law; Copyright, International; Entertainment Law; Literary Property; Music Publishing.

Investopedia Financial Dictionary:

Intellectual Property

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A broad categorical description for the set of intangibles owned and legally protected by a company from outside use or implementation without consent. Intellectual property can consist of patents, trade secrets, copyrights and trademarks, or simply ideas.

The concept of intellectual property relates to the fact that certain products of human intellect should be afforded the same protective rights that apply to physical property. Most developed economies have legal measures in place to protect both forms of property.

Investopedia Says:
Companies are diligent when it comes to identifying and protecting intellectual property because it holds such high value in today's increasingly knowledge-based economy. Extracting value from intellectual property and preventing others from deriving value from it is an important responsibility for any company.

Many forms of IP cannot be listed on the balance sheet as assets, but the value of such property tends to be reflected in the price of the stock. Management's ability to manage these effectively and turn a profit is just one example.

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categories related to 'intellectual property'

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Random House Word Menu by Stephen Glazier

For a list of words related to intellectual property, see:

Customs, Formalities, and Practices - intellectual property: individual’s creative or artistic work, protectable under copyright or patent law

Wikipedia on Answers.com:

Intellectual property

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

Intellectual property law
Primary rights
Copyright · authors' rights · related rights · moral rights · patent · utility model · trademark · geographical indication · trade secret
Sui generis rights
Database right · indigenous intellectual property · industrial design right · mask work · plant breeders' rights · supplementary protection certificate
Related topics
Societal views · orphan works · public domain · outline of intellectual property
v d e

Intellectual property (IP) is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized, and the corresponding fields of law.^[1] Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions. The term intellectual property is used to describe many very different, unrelated legal concepts.

Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term intellectual property began to be used, and not until the late 20th century that it became commonplace in the majority of the world.^[2] The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins of copyright and patent law respectively.^[3]

Contents

1 History
2 Objectives
3 Criticism
4 See also
5 Notes
6 References
7 External links

History

Main articles: History of patent law and History of copyright law

Modern usage of the term intellectual property goes back at least as far as 1867 with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation.^[4] When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),^[2] and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.^[5]

"The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."^[6]

In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently introduced idea of "property which has been called intellectual."^[7] The term intellectual property can be found used in 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 are 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."^[8] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

Until recently, the purpose of intellectual property law was to give as little protection possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.^[9]

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 – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.^[10]

Objectives

Currently, particularly in the United States, the objective of intellectual property legislators and those who support its implementation is "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions." ^[11] This absolute protection or full value view treats intellectual property as another type of 'real' property, typically adopting its law and rhetoric.

Financial incentive

These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs.^[12] Some commentators, such as David Levine and Michele Boldrin, dispute this justification.^[13]

Economic growth

The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights are essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.^[14]

The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".^[15]

Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets.^[16] "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".^[17]^{[dubious – discuss]}

A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."^[18]

Economists have also shown that IP can be a disincentive to innovation when that innovation is drastic. IP makes excludable non-rival intellectual products that were previously non-excludable. This creates economic inefficiency as long as the monopoly is held. A disincentive to direct resources toward innovation can occur when monopoly profits are less than the overall welfare improvement to society. This situation can be seen as a market failure, and an issue of appropriability.^[19]

Morality

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".^[20] Although the relationship between intellectual property and human rights is a complex one,^[21] there are moral arguments for intellectual property.

Various moral justifications for private property can also be used to argue in favor of the morality of intellectual property, such as:

Natural Rights/Justice Argument: this argument is based on Locke’s idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind^[22], it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas^[23].
Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been said to be attributed to the development of the patent system.^[24] By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximize social utility.^[25] The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works".^[26]
"Personality” Argument: this argument is based on a quote from Hegel: “Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own”.^[27] European intellectual property law is shaped by this notion that ideas are an “extension of oneself and of one’s personality”.^[28]

Writer Ayn Rand has argued that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.^[29]

Criticism

Main article: Criticism of intellectual property

The term itself

Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He claims that 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" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights".^[30] Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term.

Lawrence Lessig, along with many other copyleft and free software activists, have criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).^[31]

Limitations

Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses,^[32]^[33] and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions, software patents and business method patents.

The Committee on Economic, Social and Cultural Rights recognizes that "conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights".^[34] It argues that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits.^[35]

Some libertarian critics of intellectual property have argued that allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Stephan Kinsella uses the following scenario to argue this point:

[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.^[36]

Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection^[37] (raising fears that it may some day be eternal).^[31]^[38]^[39]^[40] In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms,^[41] (and in the US, certain living organisms have been patentable for over a century)^[42] and colors have been trademarked.^[43] Because they are systems of government-granted monopolies copyrights, patents, and trademarks are called intellectual monopoly privileges, (IMP) a topic on which several academics, including Birgitte Andersen^[44] and Thomas Alured Faunce^[45] have written.

Thomas Jefferson once said in a letter to Isaac McPherson on August 13, 1813:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."^[46]

In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.

Another limitation of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.^[47] This definition excludes any works that are the result of community creativity, for example Native American songs and stories; current legislation does not recognize the uniqueness of indigenous cultural 'property' and its ever-changing nature. Simply asking native cultures to 'write down' their cultural artifacts on tangible mediums ignores their necessary orality and enforces a Western bias of the written form as more authoritative.

Ethics

The ethical problems brought up by intellectual property rights are most pertinent when it is socially valuable goods like life-saving medicines and genetically modified seeds that are given intellectual property protection. For example, pharmaceutical companies that produce, apply^{[clarification needed]} intellectual property rights in order to prevent other companies from manufacturing their product without the additional cost of research and development. The application of intellectual property rights allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development.^[48] However, this immediately excludes from the market anyone who cannot afford the cost of the product, in this case a life saving drug.

“

The availability problem is a consequence of the fact that the incentivizing mechanism for innovation constituted by IPRs establishes a direct link between the incentive to innovate and the price of the innovative product. Under an IPR driven regime, profits are generated exclusively from sales. This means that the higher a price a product can command on the market, the higher is the incentive to invest resources into the R&D process of it. An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations...^[49]

”

Notes

^ Intellectual Property Licensing: Forms and Analysis, by Richard Raysman, Edward A. Pisacreta and Kenneth A. Adler. Law Journal Press, 1998-2008. ISBN 973-58852-086-9^{[verification needed]}
^ ^a ^b " property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations." in Mark A. Lemley, Property, Intellectual Property, and Free Riding, Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.
^ Brad, Sherman; Lionel Bently (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. pp. 207. ISBN 9780521563635. http://www.google.com/books?id=u2aMRA-eF1gC&dq=statute+of+anne+copyright&lr=&as_brr=3&source=gbs_navlinks_s.
^ 'Article 4 No. 6 of the Constitution of 1867 (German)' Hastings Law Journal, Vol. 52, p. 1255, 2001
^ Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4-5.
^ Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550-1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001
^ (French) Benjamin de Constant de Rebecque, Collection complète des ouvrages publiés sur le gouvernement représentatif et la constitution actuelle de la France: formant une espèce de cours de politique constitutionnelle, P. Plancher, 1818, p. 296.
^ A Brief History of the Patent Law of the United States
^ "Property, Intellectual Property, and Free Riding", Mark A. Lemley, Texas Law Review 2007
^ Jewish Law and Copyright
^ http://heinonline.org/HOL/Page?handle=hein.journals/tlr83&div=30&g_sent=1&collection=journals
^ Prudential Reasons for IPR Reform, University of Melbourne, Doris Schroeder and Peter Singer, May 2009
^ Levine, David; Michele Boldrin (2008-09-07). Against intellectual monopoly. Cambridge University Press. ISBN 978-0521879286. http://www.dklevine.com/papers/imbookfinalall.pdf.
^ http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf p. 3.
^ http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/acta-crc_apr15-2011_eng.pdf
^ Sonecon.com
^ Economic Effects of Intellectual Property-Intensive Manufacturing in the United States, Robert Shapiro and Nam Pham, July 2007 (archived on archive.org).
^ Measuring the Economic Impact of IP Systems, WIPO, 2007.
^ Greenhalgh, C. & Rogers M., (2010). The Nature and Role of Intellectual Property. Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press. (p. 32-34).
^ United Nations. "The Universal Declaration of Human Rights". http://www.un.org/en/documents/udhr/index.shtml. Retrieved October 25, 2011.
^ WIPO - The World Intellectual Property Organization. "Human Rights and Intellectual Property: An Overview". http://www.wipo.int/tk/en/hr/. Retrieved October 25, 2011.
^ Ronald V. Bettig. "Critical Perspectives on the History and Philosophy of Copyright" in Copyrighting Culture: The Political Economy of Intellectual Property, by Ronald V. Bettig. (Boulder, CO: Westview Press, 1996), 19-20
^ Richard T. De George, “14. Intellectual Property Rights,” in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 415–416.
^ Richard T. De George, “14. Intellectual Property Rights,” in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 416.
^ Spinello, Richard A. (January 2007). "Intellectual property rights". Library Hi Tech 25 (1): 12–22. doi:10.1108/07378130710735821.
^ Spinello, Richard A. (January 2007). "Intellectual property rights". Library Hi Tech 25 (1): 12–22. doi:10.1108/07378830710735821.
^ Richard T. De George, “14. Intellectual Property Rights,” in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 417.
^ Richard T. De George, “14. Intellectual Property Rights,” in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 418.
^ Capitalism: The Unknown Ideal, Chapter 11 "Patents and Copyrights" - Ayn Rand
^ Richard M. Stallman. "Did You Say "Intellectual Property"? It's a Seductive Mirage". Free Software Foundation, Inc. http://www.gnu.org/philosophy/not-ipr.xhtml. Retrieved 2008-03-28.
^ ^a ^b "Against perpetual copyright". http://wiki.lessig.org/index.php/Against_perpetual_copyright.
^ On patents - Daniel B. Ravicher (August 6, 2008). "Protecting Freedom In The Patent System: The Public Patent Foundation's Mission and Activities". http://www.youtube.com/watch?v=d0chez_Jf5A.
^ Joseph Stiglitz (October 13, 2006). "Authors@Google: Joseph Stiglitz - Making Globalization Work.". http://www.youtube.com/watch?v=UzhD7KVs-R4#t=16m05s.
^ WIPO - World Intellectual Property Organization. "Human Rights and Intellectual Property: An Overview". http://www.wipo.int/tk/en/hr/. Retrieved October 25, 2011.
^ Chapman, Audrey R. (December 2002). "The Human Rights Implications of Intellectual Property Protection". Journal of International Economic Law 5 (4): 861–882. doi:10.1093/jiel/5.4.861. http://resolver.scholarsportal.info.myaccess.library.utoronto.ca/resolve/13693034/v05i0004/861_thrioipp. Retrieved October 25, 2011.
^ N. Stephan Kinsella, Against Intellectual property (2008), p. 44.
^ E.g., the U.S. Copyright Term Extension Act, Pub.L. 105-298.
^ Mark Helprin, Op-ed: A Great Idea Lives Forever. Shouldn't Its Copyright? The New York Times, May 20, 2007.
^ Eldred v. Ashcroft Eldred v. Ashcroft, 537 U. S. 186 (2003)
^ Mike Masnick (May 21, 2007). "Arguing For Infinite Copyright... Using Copied Ideas And A Near Total Misunderstanding Of Property". techdirt. http://www.techdirt.com/articles/20070521/015928.shtml.
^ Council for Responsible Genetics, DNA Patents Create Monopolies on Living Organisms. Accessed 2008.12.18.
^ Plant Patents USPTO.gov
^ For example, AstraZeneca holds a registered trademark to the color purple, as used in pill capsules. AstraZeneca, Nexium: Legal. Accessed 2008.12.18.
^ Birgitte Andersen. Intellectual Property Right' Or 'IntellectualMonopoly Privilege': Which One Should PatentAnalysts Focus On? CONFERÊNCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO • NOV. 2003
^ Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4. "Balancing the need to protect the intellectual property rights (IPRs) ("which the third author considers are more accurately described as intellectual monopoly privileges (IMPs)) of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today.")
^ Thomas Jefferson, Letter to Isaac McPherson (August 13, 1813)
^ Philip Bennet, 'Native Americans and Intellectual Property: the Necessity of Implementing Collective Ideals into Current United States Intellectual Property Laws", 2009 [1]
^ Jorn Sonderholm, 'Ethical Issues Surrounding Intellectual Property Rights', Philosophy Compass (2010).
^ Jorn Sonderholm, 'Ethical Issues Surrounding Intellectual Property Rights', Philosophy Compass (2010), p. 1108-9

References

Arai, Hisamitsu. "Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation", WIPO Publication Number 834 (E). 2000. wipo.int
Bettig, R. V. (1996). Critical Perspectives on the History and Philosophy of Copyright. In R. V. Bettig, Copyrighting Culture: The Political Economy of Intellectual Property. (pp. 9-32). Boulder, CO: Westview Press.
Boldrin, Michele and David K. Levine. "Against Intellectual Monopoly", 2008. dkleving.com
Hahn, Robert W., Intellectual Property Rights in Frontier Industries: Software and Biotechnology, AEI Press, March 2005.
Branstetter, Lee, Raymond Fishman and C. Fritz Foley. "Do Stronger Intellectual Property Rights Increase International Technology Transfer? Empirical Evidence from US Firm-Level Data". NBER Working Paper 11516. July 2005. weblog.ipcentral.info
Connell, Shaun. "Intellectual Ownership". October 2007. rebithofffreedom.org
De George, Richard T. “14. Intellectual Property Rights.” In The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, 1:408-439. 1st ed. Oxford, England: Oxford University Press, n.d.
Farah, Paolo and Cima, Elena. "China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues" in Aurelio Lopez-Tarruella Martinez (ed.), El comercio con China. Oportunidades empresariales, incertidumbres jurídicas, Tirant lo Blanch, Valencia (Spain) 2010, pp. 85–121. ISBN 978-84-8456-981-7. Available at SSRN.com
Gowers, Andrew. "Gowers Review of Intellectual Property". Her Majesty's Treasury, November 2006. hm-treasury.gov.uk ISBN 9-780118-4083-9.
Greenhalgh, C. & Rogers M., (2010). Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press.
Kinsella, Stephan. "Against Intellectual Property". Journal of Libertarian Studies 15.2 (Spring 2001): 1-53. mises.org
Lai, Edwin. "The Economics of Intellectual Property Protection in the Global Economy". Princeton University. April 2001. dklevine.com
Lee, Richmond. Scope and Interplay of IP Rights Accralaw offices.
Lessig, Lawrence. "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity". New York: Penguin Press, 2004. free-culture.cc.
Lindberg, Van. Intellectual Property and Open Source: A Practical Guide to Protecting Code. O'Reilly Books, 2008. ISBN 0-596-51796-3 | ISBN 9780596517960
Maskus, Keith E. "Intellectual Property Rights and Economic Development". Case Western Reserve Journal of International Law, Vol. 32, 471. journals/jil/32-3/maskusarticle.pdf law.case.edu
Mazzone, Jason. "Copyfraud". Brooklyn Law School, Legal Studies Paper No. 40. New York University Law Review 81 (2006): 1027. (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.
Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550-1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001
Rozanski, Felix. "Developing Countries and Pharmaceutical Intellectual Property Rights: Myths and Reality" stockholm-network.org
Perelman, Michael. Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity. Palgrave Macmillan, 2004.
Rand, Ayn. "Patents and Copyrights" in Ayn Rand, ed. 'Capitalism: The Unknown Ideal,' New York: New American Library, 1966, pp. 126–128
Reisman, George. 'Capitalism: A Complete & Integrated Understanding of the Nature & Value of Human Economic Life,'] Ottawa, Illinois: 1996, pp. 388–389
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.
Schneider, Patricia H. "International Trade, Economic Growth and Intellectual Property Rights: A Panel Data Study of Developed and Developing Countries". July 2004. mtholyoke.edu
Shapiro, Robert and Nam Pham. "Economic Effects of Intellectual Property-Intensive Manufacturing in the United States". July 2007. the-value-of.ip.org
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.
Burk, Dan L. and Mark A. Lemley (2009). The Patent Crisis and How the Courts Can Solve It. University of Chicago Press. ISBN 9780226080611.

External links

Intellectual property entry in the Stanford Encyclopedia of Philosophy

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Issues and debates	Copyright infringement Societal views on intellectual property Criticism of patents Digital rights management Gripe site History of music piracy Mashup videos and music Public domain Software patent debate

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categories related to 'intellectual property'

Intellectual property

History

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Morality

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The term itself

Limitations

Ethics

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