Intellectual property (IP) is a legal term that refers to creations of the mind. Examples of intellectual property include music, literature, and other artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Under intellectual property laws, owners of intellectual property are granted certain exclusive rights. Some common types of intellectual property rights (IPR) are copyright, patents, and industrial design rights; and the rights that protect trademarks, trade dress, and in some jurisdictions trade secrets. Intellectual property rights are themselves a form of property, called intangible property. Although many of the legal principles governing IP and IPR 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.[1] The Statute of Monopolies (1624) and the British Statute of Anne (1710) are now seen as the origins of patent law and copyright respectively,[2] firmly establishing the concept of intellectual property. Intellectual property rights[edit] Intellectual property rights include patents, copyright, industrial design rights, trademarks, trade dress, and in some jurisdictions trade secrets. There are also more specialized varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in U.S. law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Union law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law). Patents[edit] Main article: Patent A patent grants an inventor the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.[11]:17 Copyright[edit] Main article: Copyright A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or works.[12][13] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[14] Industrial design rights[edit] Main article: Industrial design right An industrial design right protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. Trademarks[edit] Main article: Trademark A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.[15][16][17] Trade dress[edit] Main article: Trade dress Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[18] Trade secrets[edit] Main article: Trade secret A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors or customers. In the United States, trade secret law is primarily handled at the state level under the Uniform Trade Secrets Act, which most states have adopted, and a federal law, the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) Trade secret law varies from country to country. Objectives of intellectual property law[edit] The stated objective of most intellectual property law (with the exception of trademarks) is to Promote progress.[19] By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be 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.[20] This absolute protection or full value view treats intellectual property as another type of real property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the America Invents Act, stress international harmonization. Financial incentive[edit] 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.[21] Some commentators, such as David Levine and Michele Boldrin, dispute this justification.[22] In 2013 the United States Patent & Trademark Office approximated that the worth of intellectual property to the U.S. economy is more than US$5 trillion and creates employment for an estimated 18 million American people. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union.[23] In the UK, IP has become a recognised asset class for use in pension-led funding and other types of business finance. However, in 2013, the UK Intellectual Property Office stated: There are millions of intangible business assets whose value is either not being leveraged at all, or only being leveraged inadvertently.[24] Economic growth[edit] The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights is 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.[25] 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.[26] Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets.[27] IP-intensive industries are estimated to generate 72 percent more value added (price minus material cost) per employee than non-IP-intensive industries.[28][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.[29] 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.[30] Morality[edit] 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.[31] Although the relationship between intellectual property and human rights is a complex one,[32] there are moral arguments for intellectual property. The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work.[citation needed] Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as: Natural Rights/Justice Argument: this argument is based on Lockes 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,[33] it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse anothers ideas.[34] Lockes argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property ensures this right when it comes to production. 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.[35] 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.[36] The presumption is that they promote public welfare by encouraging the creation, production, and distribution of intellectual works.[36] Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility. 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.[37] European intellectual property law is shaped by this notion that ideas are an extension of oneself and of ones personality.[38] Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality. Lysander Spooner (1855) argues that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.[39] Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal 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
Posted on: Tue, 27 Jan 2015 10:01:54 +0000
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