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Intellectual property law

Primary rights

Copyright  ·  Patent  ·  Trademark Industrial design rights Utility model Geographical indication Trade secret · Related rights

Sui generis rights

Database right · Mask work Plant breeders' right Supplementary protection certificate Indigenous intellectual property

Related topics

Criticism · more

v • d • e

Intellectual property (IP) is a number of distinct types of legal monopolies over creations of the mind, both artistic and commercial, 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 include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions.

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 United States.^[2]

[edit] Objectives

[edit] Financial incentive

These exclusive rights allow owners of intellectual property to reap monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and pay associated research and development costs.^{[citation needed]} Some commentators, such as David Levine and Michele Boldrin, dispute this justification.^[3]

[edit] Economic growth

The legal monopoly granted by IP laws are credited with significant contributions toward economic growth.^{[citation needed]} Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets.^{[citation needed]} Industries which rely on IP protections are estimated to produce 72 percent more value added per employee than non-IP industries.^{[4][dead link][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." ^[5]

However, correlation does not necessarily mean causation: given that the patent holders can freely relocate, the Nash equilibrium predicts they will obviously prefer operating in countries with strong IP laws.^{[neutrality disputed]} In some of the cases, the economic growth that comes with a stronger IP system^{[neutrality disputed]} is due to increase in stock capital from direct foreign investment.

[edit] Economics

Intellectual property rights are temporary monopolies enforced by the state regarding use of expressions and ideas.

Intellectual property rights are usually limited to non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously—the use by one person does not exclude use by another. This is compared to rival goods, such as clothing, which may only be used by one person at a time. For example, any number of people may make use of a mathematical formula simultaneously. Some objections to the term intellectual property are based on the argument that property can only properly be applied to rival goods (or that one cannot "own" property of this sort).

Since a non-rival good may be used (copied, for example) by many simultaneously (produced with minimal marginal cost), producers would need incentives other than money to create such works. Monopolies, by contrast, also have inefficiencies (producers will charge more and produce less than would be socially desirable).

The establishment of intellectual property rights, therefore, represents a trade-off, to balance the interest of society in the creation of non-rival goods (by encouraging their production) with the problems of monopoly power. Since the trade-off and the relevant benefits and costs to society will depend on many factors that may be specific to each product and society, the optimum period of time during which the temporary monopoly rights should exist is unclear.^[6]

[edit] History

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Modern usage of the term intellectual property goes back at least as far as 1888 with the founding in Berne of the Swiss Federal Office for Intellectual Property (the Bureau fédéral de la propriété intellectuelle). When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they also 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.^[7]

The concept appears to have made its first appearance after the French revolution. 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." ^[8] 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."^[9] In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

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] The Talmud contains the prohibitions against certain mental crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at (גניבת דעת, literally "mind theft"), which some have interpreted^[11] as prohibiting theft of ideas, though the doctrine is principally concerned with fraud and deception, not property.

Thomas Jefferson and James Madison, drafters of the Copyright Clause, were both quite skeptical to the monopolies of copyright, and monopolies of patents, and wrote extensively on the subject.^[12][13]

Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property. 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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.

—Thomas Jefferson, to Isaac McPherson 13 Aug. 1813 Writings 13:333--35^[14]

[edit] Criticism

[edit] The term itself

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."^[15] Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term.

[edit] The laws

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,^[16][17] and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions, software patents and business method patents.

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^[18] (raising fears that it may some day be eternal^{[19][20][21][22]}). 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,^[23] and colors have been trademarked^[24]. 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^[25] and Thomas Alured Faunce^[26] have written.

[edit] See also

Wikiquote has a collection of quotations related to: Intellectual property

• List of intellectual property-related topics

[edit] References

[edit] Further reading

• Krattiger et al 2007 "Intellectual Property Management in Health and Agricultural Innovation: A Handbook of Best Practices", Managing Innovation for a Better World
• Arai, Hisamitsu. "Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation", WIPO Publication Number 834 (E). 2000. [2]
• Boldrin, Michele and David K. Levine. "Against Intellectual Monopoly", 2008. [3]
• 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. [4]
• Connell, Shaun. "Intellectual Ownership". October 2007. [5]
• Gowers, Andrew. "Gowers Review of Intellectual Property". Her Majesty's Treasury, November 2006. [6] ISBN 9-780118-4083-9.
• Kinsella, Stephan. "Against Intellectual Property". Journal of Libertarian Studies 15.2 (Spring 2001): 1-53. [7]
• Lai, Edwin. "The Economics of Intellectual Property Protection in the Global Economy". Princeton University. April 2001. [8]
• 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. [9].
• 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
• 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.
• Rozanski, Felix. "Developing Countries and Pharmaceutical Intellectual Property Rights: Myths and Reality" [10]
• 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. [11]
• Shapiro, Robert and Nam Pham. "Economic Effects of Intellectual Property-Intensive Manufacturing in the United States". July 2007. [12]
• 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. 

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