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Intellectual property

Intellectual property or IP refers to certain kinds of exclusive rights to intellectual capital. Intellectual property rights are generally divided into two categories: those that prevent one person from copying/reproducing the item or act protected (e.g. copyright) and those that grant an absolute monopoly for a period of time (e.g. patents). The difference between these is that a copyright would prevent someone from copying the design of something, but could not stop them from making that design if they had no knowledge of the original held by the copyright holder. A patent, as total monopoly, could be used to prevent that second person from making the same design even if they had never heard of or seen the original. These monopoly rights are therefore more powerful, and generally harder to obtain and maintain.

The most common forms of intellectual property are copyright, patents, trademarks (or "trade marks"), and trade secrets. These rights, conferred by law, can be given, sold, rented (called "licensing") and in some countries, even mortgaged, in much the same way as physical property. Unlike physical property rights, however, IP protections typically have limitations, including term limits and other exceptions (such as fair use for copyrighted works.)

There are also more specialized varieties of so-called sui generis intellectual property rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Community Law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeder rights, plant variety rights, design rights">industrial design rights, supplimentary protection certificates for pharmaceutical products and database rights (in European law).

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Types and Scope of Intellectual Property

Intellectual property may be analysed in terms of its subject matter, the actions it regulates in respect of the subject matter, the duration of particular rights, and the limitations on these rights. Intellectual property law is conventionally categorized according to subject matter: inventions, artistic expression, secrets, semiconductor designs, and so on. Intellectual property law regulates what people may legally do with these inventions, expressions and so on. The regulations regarding each subject matter area tend to form distinct bodies of law; the rules permitting reproduction without license of patented inventions and copyrighted expression are entirely independent of one another.

Generally, the action regulated by intellectual property is unauthorized reproduction. However, as indicated above, some rights go beyond this to grant full monopolies on a particular idea or product. Generally, it is true to say that intellectual property rights grant the holder the ability to stop others doing something, but not necessarily a right to do it themselves. For example, the holder of a patent on a pharmaceutical product may be able to prevent otherssellingit, but (in most countries) cannot sell it themselves without a separate licence from a regulatory authority.

Most intellectual property rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightholder for permission to perform the acts which are subject to the rightholder's authorization by virtue of intellectual property law. The granting of this permission is termed licensing, and IP licenses may be used to impose conditions on the licensee, generally the payment of a fee or an undertaking not to engage in particular forms of conduct. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the European Union, for example, competition law has a strong influence on how licences are granted by large companies.

A license is 'permission' to do something, in contract form. Therefore it is only required for activities which fall under the protection for the right in question. Intellectual property law provides for certain activities which do not require any license, such as reproduction of small amounts of texts in quotations, termed fair use, or the non-commercial experimental use of inventions. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.

Intellectual property is inherently a monopoly given government sanction for a limited period of time. This monopoly may be justified as a reward for creating intellectual works. Economic theory typically suggests that a free market with no intellectual property rights will lead to too little production of intellectual works relative to an efficient outcome. Thus by increasing rewards for authors, inventors and other producers of intellectual capital, overall efficiency might be improved. On the other hand, intellectual property law could in some circumstances lead to increased transaction costs that outweigh these gains (see Coase's Penguin). Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented.

Arguments against the term Intellectual Property

The term intellectual property is problematic because the rights conferred by IP laws are limited, in contrast with the legal rights associated with property interests in physical goods or land. Not entirely coincidentally, the presence of the word property in the term favours the position of proponents of the expansion of intellectual property rights, who may thereby more readily draw on the rhetoric of property itself to remove the many restrictions built into intellectual property law which would be inappropriate if applied to physical goods. For instance, most nations grant copyrights for only limited terms, and allow copyright holders to control only the duplication, and not the sale or modification of physical copies of a work.

A common argument against the term Intellectual Property is that information is fundamentally different from physical property in that a "stolen" idea or copy does not affect the original possession. Another, more specific objection to the term, held by Richard Stallman, is that it implies a non-existent similarity between copyrights, patents, trademarks, and other forms of intellectual property which makes clear thinking and discussion about various forms difficult. Furthermore, some legal systems, including that of the United States, clearly define the nature of intellectual rights as a limited monopoly offered by the government, rather than a right held by citizens.

Though it is convenient for beneficiaries to regard intellectual rights as akin to "property", most items protected by IP law are not physical objects "ownable" in the traditional sense. For example, the holder of the copyright in a book has the legal right to make and sell copies of the book, and the right to forbid others from making andsellingcopies of the same book. By analogy, then, he can be said to "own" the words in a similar way to which he might own the press on which they were printed, because ownership of a physical object also confers the right to forbid others from using the object.

Opponents of the term also point out that the law itself treats these rights differently than those involving physical property. To give three examples, copyright infringement is not punishable by laws against theft, but rather by an entirely different set of laws with different penalities. Patent infringement is not a criminal offense although it may subject the infringer to civil liability. Possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not.

Others would argue that the law is simply recognising the reality of a situation. In some jurisdictions a lease of land (e.g. a flat or appartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen - if someone moves into the flat and prevents you from living there they are not regarded as 'theives of the lease' but as 'squatters' and the law provides different remedies.

History

It is not exactly clear where the concept of intellectual property originated.

The first patent in England was granted by Henry VI in 1449 to a Flemish man a 20 year monopoly (co-incidentally, the current length of UK/EU patents is still 20 years) on the manufacture of stained glass (destined for Eton College). This was the start of a long tradition by the English Crown of the granting of "letters patent" (meaning 'open letter', as opposed to a letter under seal) which granted monopolies to favoured persons (or people who were prepared to pay for them). This became increasingly open to abuse as the Crown granted patents in respect of all sorts of known goods (salt, for example). After public outcry, James I was forced to revoke all existing monopolies and declare that they were only to be used for 'projects of new invention'. This was incorporated into the Statute of Monopolies 1623. In the reign of Queen Anne the rules were changed again so that a written description of the article was given.

Outside of England, patent law was the subject of legislative protection in the Venetian Statute of 1474.

Copyright was not invented until after the advent of the printing press and wider public literacy. In England the King was concerned by the unfair copying of books and used the royal prerogative to pass the Licencing Act 1662 which established a register of licenced books and required a copy to be deposited with the Stationers Company. The Statute of Anne was the first real act of copyright, and gave the author rights for a fixed period. Internationally, the Berne Convention in the late 1800's set out the scope of copyright protection and is still in force to this day.

Design rights started in England in 1787 with the Designing & Printing of Linen Act and have expanded from there.

The term intellectual property appears to have originated in Europe during the 19th century. French author A. Nion mentions "propriete intellectuelle" in his Droit civils des auteurs, artistes et inventeurs, published in 1846, and there may well have been earlier uses of the term.

During the period in question, there was some controversy over the nature of copyright and patent protections in Europe; those who supported unlimited copyrights frequently used the term property to advance that agenda, while others who supported a more limited system sometimes used the term intellectual rights (droits intellectuels).

The system currently used by much of the Western world is more in line with the second view, with limited copyrights that eventually expire. Regardless, the term intellectual property has gained prominence throughout the world, as evidenced by the United Nations World Intellectual Property Organization (WIPO), formed in 1967.

Trends

Recently the general trend in intellectual property law has been expansion: to cover new types of subject matter such as databases, to regulate new categories of activity in respect of the subject matter already protected, to increase the duration of individual rights, and to remove restrictions and limitations on these rights.

Another effect of this trend is an increase in the term of the government-granted monopoly, and an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hire has had the effect of treating a corporation or business owner as the legal author of works created by people while employed.

Another trend is to increase the number and type of what is claimed as intellectual property. This has resulted in increasingly broad patents and trademarks: for instance, Microsoft attempting to trademark the phrase, "Where do you want to go today?". Trade marks in EU law can now encompass smells (e.g. of cut grass for tennis balls), shapes (e.g. of a soft drinks bottle), colors (e.g. red for fizzy drinks), words (e.g. COCA-COLA) and sounds (Intel, has registered four notes). The granting of patents for life forms, software algorithms and business models stretches the initial concept of giving the inventor a limited monopoly of the use if his invention.

Some argue that these expansions harm an essential "bargain" driven between public and copyright holders: as most "new" ideas borrow from other ideas, it is thought that too many intellectual property laws will lead to a reduction the overall creative output of a society. The expansion of monopolies has also led to the emergence of organizations whose business model is to frivolously sue other companies.

The electronic age has seen an increase in the attempt to use software based digital rights management tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use provisions of copyright law and even make the first sale doctrine (known in EU law as 'exhaustion of rights') moot. This would allow, in essence the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act, which uses criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, the Copyright Directive.

At the same time, the growth of the Internet, and particularly peer-to-peer file-sharing networks like Kazaa and Gnutella represents a challenge to intellectual property laws. The Recording Industry Association of America, in particular, has been on the front lines of the fight against what it terms "piracy". Though the industry has had some victories against services, including a highly publicized case against the file-sharing company Napster, the increasingly decentralized nature of these networks is making legal action more difficult.

Non-government systems of IP protection

The notion of protecting intellectual capital is much older than copyright or patent law. There have long existed socially-enforced systems for protecting intellectual capital. These include the ancient scholarly taboo against plagiarism, along with other informal systems such as the one used by clowns to protect their unique style of makeup.

On a more modern topic, intellectual property law has been brought to bear on domain names where trademark holders (in particular) have objected to third parties registering domain names which they believe should be theirs. The domain name registries, many of whom are not governmental organisations, have had to find a solution to this and therefore have dispute resolution systems which operate in paralell with national laws. The majority of the generic top level domain names (.com, .net etc.) use the ICANN model known as the Uniform Dispute Resolution Policy (UDRP). Other registries, such as the .uk registry Nominet UK have their own different systems. For example, Nominet's sytem is called the Dispute Resolution Service.

Related entries: property, real property, personal property, fair use, reverse engineering, Software patent.

Types of intellectual property: copyright, patent, trade dress, trademark, trade secret, personality rights, design rights">industrial design rights.

See also: idea, The Doha Declaration, intellectual rights

External links

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