Intellectual Property

I

Introduction

Intellectual Property, creative works that have economic value and are protected by law. Intellectual property laws reward the creators of most types of intellectual property by preventing others from copying, performing, or distributing those works without permission. The main purpose of this protection is to provide incentives for people to produce scientific and creative works that benefit society at large. Some types of intellectual property are automatically protected by law from the moment of their creation. Other types require the creator to request a specific grant of rights from a government agency before they can be protected by law. Nearly all nations have laws protecting intellectual property. However, some nations do not vigorously enforce intellectual property laws, making illegal copying, or piracy, a major problem in these areas.

II

Forms of Intellectual Property

The principal types of intellectual property are patents, copyrights, and trademarks. Patent law protects inventions that demonstrate technological progress. Copyright law protects a variety of literary and artistic works, including paintings, sculpture, prose, poetry, plays, musical compositions, dances, photographs, motion pictures, radio and television programs, sound recordings, and computer software programs. Trademark law protects words, slogans, and symbols that serve to identify different brands of goods and services in the marketplace.

Intellectual property also includes certain related fields of law, such as trade secrets and the right of publicity. Trade secret law protects confidential information that belongs to a business and gives that business a competitive advantage. For example, the formula for making the soft drink Coca-Cola is a trade secret protected by intellectual property laws. Right of publicity law protects the right to use one’s own name or likeness for commercial purposes. For example, a famous athlete may profit by using his or her name to endorse a given product. Using a person’s name to endorse a product without their permission is a violation of right of publicity law.

Intellectual property differs from other forms of property because it is intangible—that is, it is a product of the human imagination. Because intellectual property is intangible, many people may use it simultaneously without conflict. For example, only one person can drive a car at a time, but if an author publishes a book, many people can read the work at the same time. Intellectual property is also much easier to copy than it is to create. It may take many months of work to write a novel or computer program, but with a photocopy machine or a computer others could copy the work in a matter of seconds. Without intellectual property laws, it would be easy to duplicate original works and sell them for very low prices, leaving the original creators without any chance to secure economic rewards for their efforts. The legal system avoids this problem by making it against the law to reproduce various forms of intellectual property without the permission of the creator.

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Most intellectual property rights expire after a specified period. This permits the rest of society to benefit from the work after the creator has had an opportunity to earn a fair reward. For example, after the inventor of a patented telecommunications device has profited from the work for a specified period, anyone may manufacture that same device without paying the inventor royalties, thereby encouraging competition that allows others to benefit from the invention as well. The one exception to limited periods of intellectual property rights is in the field of trademark law. Trademark rights never expire, so long as a merchant continues to use the trademark to identify a given product.

III

Legal Issues

Intellectual property was not always recognized as a single field of law. Historically, the fields of patent, copyright, and trademark developed independently. In the late 20th century, however, legal experts began to recognize that these various fields of law had a great deal in common because they all pertained to intangible products of the mind. Nevertheless, an attorney will often specialize in only one area of intellectual property, such as patent law, and the legal rules for the different branches of intellectual property law vary greatly.

In all branches of intellectual property, the legal system seeks to balance two competing concerns. On the one hand, protection must be strong enough to encourage authors and inventors to invest the necessary effort in innovation. On the other hand, the law must also allow people some freedom to use the intellectual property of others. This is because artistic, technological, and commercial progress always requires building on the work of others. To strike this balance, all branches of intellectual property law confer general rights on creators but also limit those rights with a variety of exceptions. For example, in patent law, a scientist may use someone else’s invention to conduct experiments. Similarly, copyright law allows a literary critic to quote passages of a novel in a review. Under trademark law, a company may use a competitor’s brand name in a comparative advertisement. In all these ways, intellectual property law tries to be flexible enough to protect the property rights of the creator while also allowing the public to benefit from the protected work.

In the United States and other countries, intellectual property has gained increased protection with advances in technology and international trade. However, some countries still tolerate the widespread sale of counterfeit versions of intellectual property products, such as software, movies on videotape, brand-name athletic goods, and even patented medicines. Violations of intellectual property rights cost the owners of the rights billions of dollars each year. These costs stem from lost royalties and sales in markets dominated by counterfeit products. In an attempt to reverse this situation, most nations of the world signed the Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) in 1994. Administered by the World Trade Organization (WTO), TRIPS strengthened legal protection for intellectual property around the world. The United States has also attempted to negotiate direct agreements with countries such as China, where counterfeiting has been particularly extensive.

In the last years of the 20th century, the growth of the Internet and related digital technologies began to pose new problems for intellectual property owners. Unauthorized parties began using trademarks as domain names for Web sites, which made it difficult for consumers to find the trademark owner’s official Web site. Copyright owners found that their works, particularly music and movies, could be perfectly duplicated by parties using file-sharing software. New devices were sold that made it possible to defeat copy-control features, such as those designed to prevent duplication of digital video discs (DVDs). The U.S. government attempted to respond to these developments by adopting several complex new laws protecting intellectual property. These laws became controversial. On the one hand, intellectual property owners claimed that the laws failed to provide full protection against unauthorized use of their property. On the other hand, various consumer groups argued that the laws interfered with the public’s rights to engage in free speech and may also invade privacy.

IV

History of Intellectual Property Law

Some forms of intellectual property, such as trademarks, date to ancient times. But comprehensive legal protection for intellectual property did not become common until the 18th century. The American colonies had laws granting patents long before the outbreak of the American Revolution in 1775. Soon after the revolution, all but one of the 13 original colonies adopted copyright laws.

When the Constitution of the United States was ratified in 1789, it granted the U.S. Congress the authority 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.” Under this power, Congress adopted both patent and copyright laws in 1790, one of its first acts. Protection for trademarks was originally left to the states but eventually, in 1870, Congress adopted the first federal trademark law. Congress has amended the intellectual property statutes frequently since then in response to changes in technology and economics. There are committees in both houses of Congress that have the responsibility of keeping intellectual property laws up to date.

International protection of intellectual property rights was first addressed in treaties beginning in the late 19th century. For example, the Paris Convention of 1883 dealt with patents and trademarks, and the Berne Convention of 1886 protected artistic and literary works among member countries. Since then, many additional international treaties have addressed intellectual property rights. The World Intellectual Property Organization (WIPO), based in Geneva, Switzerland, administers some of these treaties.

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