Intellectual property

Intellectual property

Overview
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

s are recognized—and the corresponding fields of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible asset
Intangible asset
Intangible assets are defined as identifiable non-monetary assets that cannot be seen, touched or physically measured, which are created through time and/or effort and that are identifiable as a separate asset...

s, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

s, trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...

s, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

s, industrial design rights and trade secret
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...

s 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 majority of the world.
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Quotations

When you xerox a page of something the original doesn't disappear, and in the same way information isn't really lost when it's "stolen". — Masamune Shirow, Ghost in the Shell Footnote 02, (1991) ISBN 4-7700-2919-5

Encyclopedia
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive right
Exclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...

s are recognized—and the corresponding fields of law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...

. Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible asset
Intangible asset
Intangible assets are defined as identifiable non-monetary assets that cannot be seen, touched or physically measured, which are created through time and/or effort and that are identifiable as a separate asset...

s, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

s, trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...

s, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

s, industrial design rights and trade secret
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...

s 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 majority of the world. The British Statute of Anne
Statute of Anne
The Statute of Anne was the first copyright law in the Kingdom of Great Britain , enacted in 1709 and entering into force on 10 April 1710...

 1710 and the Statute of Monopolies 1623
Statute of Monopolies 1623
The Statute of Monopolies was an Act of the Parliament of England notable as the first statutory expression of English patent law. Patents evolved from letters patent, issued by the monarch to grant monopolies over particular industries to skilled individuals with new techniques...

 are now seen as the origins of copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...

 and patent law respectively.

History



Modern usage of the term intellectual property goes back at least as far as 1867 with the founding of the North German Confederation
North German Confederation
The North German Confederation 1866–71, was a federation of 22 independent states of northern Germany. It was formed by a constitution accepted by the member states in 1867 and controlled military and foreign policy. It included the new Reichstag, a parliament elected by universal manhood...

 whose constitution
Constitution
A constitution is a set of fundamental principles or established precedents according to which a state or other organization is governed. These rules together make up, i.e. constitute, what the entity is...

 granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation. When the administrative secretariats established by the Paris Convention
Paris Convention for the Protection of Industrial Property
The Paris Convention for the Protection of Industrial Property, signed in Paris, France, on March 20, 1883, was one of the first intellectual property treaties. It established a Union for the protection of industrial property...

 (1883) and the Berne Convention
Berne Convention for the Protection of Literary and Artistic Works
The Berne Convention for the Protection of Literary and Artistic Works, usually known as the Berne Convention, is an international agreement governing copyright, which was first accepted in Berne, Switzerland in 1886.- Content :...

 (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
United International Bureaux for the Protection of Intellectual Property
The United International Bureaux for the Protection of Intellectual Property was an international organization. It was set up in 1893 to administer the Berne Convention for the Protection of Literary and Artistic Works and the Paris Convention for the Protection of Industrial Property...

. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization
World Intellectual Property Organization
The World Intellectual Property Organization is one of the 17 specialized agencies of the United Nations. WIPO was created in 1967 "to encourage creative activity, to promote the protection of intellectual property throughout the world"....

 (WIPO) by treaty
Convention Establishing the World Intellectual Property Organization
The Convention Establishing the World Intellectual Property Organization, or WIPO Convention, was signed at Stockholm, Sweden, on July 14, 1967 and entered into force on April 26, 1970. As its name suggests, it established the World Intellectual Property Organization . WIPO Convention has 184...

 as an agency of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...

. 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), and it did not enter popular usage until passage of the Bayh-Dole Act
Bayh-Dole Act
The Bayh–Dole Act or Patent and Trademark Law Amendments Act is United States legislation dealing with intellectual property arising from federal government-funded research. Adopted in 1980, Bayh-Dole is codified in -212, and implemented by 37 C.F.R. 401. Among other things, it gave U.S...

 in 1980.

"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."

In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant
Benjamin Constant
Henri-Benjamin Constant de Rebecque was a Swiss-born French nobleman, thinker, writer and politician.-Biography:...

, argued against the recently introduced idea of "property which has been called intellectual." 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." In Europe, French
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...

 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.

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.

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." 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 and investment in intellectual property, and, in case of patents, pay associated research and development
Research and development
The phrase research and development , according to the Organization for Economic Co-operation and Development, refers to "creative work undertaken on a systematic basis in order to increase the stock of knowledge, including knowledge of man, culture and society, and the use of this stock of...

 costs. Some commentators, such as David Levine
David K. Levine
David Knudsen Levine is the John H. Biggs Distinguished Professor of Economics at Washington University in St. Louis. His research includes the study of intellectual property and endogenous growth in dynamic general equilibrium models, the endogenous formation of preferences, social norms and...

 and Michele Boldrin
Michele Boldrin
Michele Boldrin is an Italian American economist, expert in economic growth, business cycles, technological progress and intellectual property. He is currently the Joseph Gibson Hoyt Distinguished University Professor in Arts and Sciences and chair of the Department of Economics at Washington...

, dispute this justification.

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.


The Anti-Counterfeiting Trade Agreement
Anti-Counterfeiting Trade Agreement
The Anti-Counterfeiting Trade Agreement is a proposed plurilateral agreement for the purpose of establishing international standards on intellectual property rights enforcement...

 (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".

Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets. "IP-intensive industries" are estimated to generate 72 percent more value added
Value added
In economics, the difference between the sale price and the production cost of a product is the value added per unit. Summing value added per unit over all units sold is total value added. Total value added is equivalent to Revenue less Outside Purchases...

 (price minus material cost) per employee than "non-IP-intensive industries".

A joint research project of the WIPO and the United Nations University
United Nations University
The United Nations University is an academic arm of the United Nations established in 1973, which serves purposes and principles of the Charter of the United Nations. The UNU undertakes research into the pressing global problems of human survival, development and welfare that are the concern of...

 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."

Economists have also shown that IP can be a disincentive to innovation when that innovation is drastic. IP makes excludable non-rival
Rivalry (economics)
In economics, rivalry is a characteristic of a good. A good can be placed along a continuum ranging from rivalrous to non-rival. The same characteristic is sometimes referred to as subtractable or non-subtractable . A rival good is a good whose consumption by one consumer prevents simultaneous...

 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
Welfare economics
Welfare economics is a branch of economics that uses microeconomic techniques to evaluate economic well-being, especially relative to competitive general equilibrium within an economy as to economic efficiency and the resulting income distribution associated with it...

 improvement to society. This situation can be seen as a market failure, and an issue of appropriability.

Morality


According to Article 27 of the Universal Declaration of Human Rights
Universal Declaration of Human Rights
The Universal Declaration of Human Rights is a declaration adopted by the United Nations General Assembly . The Declaration arose directly from the experience of the Second World War and represents the first global expression of rights to which all human beings are inherently entitled...

, "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". Although the relationship between intellectual property and human rights
Human rights
Human rights are "commonly understood as inalienable fundamental rights to which a person is inherently entitled simply because she or he is a human being." Human rights are thus conceived as universal and egalitarian . These rights may exist as natural rights or as legal rights, in both national...

 is a complex one, 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:
  1. 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, it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.
  2. 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
    Patent
    A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....

     system. 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. The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works".
  3. "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”. European intellectual property law is shaped by this notion that ideas are an “extension of oneself and of one’s personality”.


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.

The term itself


Free Software Foundation
Free Software Foundation
The Free Software Foundation is a non-profit corporation founded by Richard Stallman on 4 October 1985 to support the free software movement, a copyleft-based movement which aims to promote the universal freedom to create, distribute and modify computer software...

 founder Richard Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...

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

Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...

, along with many other copyleft
Copyleft
Copyleft is a play on the word copyright to describe the practice of using copyright law to offer the right to distribute copies and modified versions of a work and requiring that the same rights be preserved in modified versions of the work...

 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).

Limitations


Some critics of intellectual property, such as those in the free culture movement
Free Culture movement
The free culture movement is a social movement that promotes the freedom to distribute and modify creative works in the form of free content by using the Internet and other forms of media....

, point at intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses, 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
Committee on Economic, Social and Cultural Rights
The Committee on Economic, Social and Cultural Rights is a United Nations body of 18 experts that meets three times a year to consider the five-yearly reports submitted by UN member states on their compliance with the International Covenant 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". 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.

Some libertarian
Libertarianism
Libertarianism, in the strictest sense, is the political philosophy that holds individual liberty as the basic moral principle of society. In the broadest sense, it is any political philosophy which approximates this view...

 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
Stephan Kinsella
frame|right|Stephan KinsellaNorman Stephan Kinsella is an American intellectual property lawyer and libertarian legal theorist. His electronically published works are primarily published on his blog and websites associated with the Ludwig von Mises Institute and anarcho-capitalist...

 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.


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 (raising fears that it may some day be eternal). 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, (and in the US, certain living organisms
Plant breeders' rights
Plant breeders' rights , also known as plant variety rights , are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material and harvested material of a new variety for a number of years.With these rights, the breeder can choose...

 have been patentable for over a century) and colors have been trademarked. 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 and Thomas Alured Faunce
Thomas Alured Faunce
Thomas Alured Faunce is an Associate Professor jointly in the College of Law and Medical School at the Australian National University at Canberra Australia...

 have written.

Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

 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."


In 2005 the RSA launched the Adelphi Charter
Adelphi Charter
The Adelphi Charter on Creativity, Innovation and Intellectual Property is the result of a project commissioned by the Royal Society for the encouragement of Arts, Manufactures & Commerce, London, UK, and is intended as a positive statement of what good intellectual property policy is...

, 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. 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 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. However, this immediately excludes from the market anyone who cannot afford the cost of the product, in this case a life saving drug.

External links

  • Intellectual Property entry in the Stanford Encyclopedia of Philosophy
    Stanford Encyclopedia of Philosophy
    The Stanford Encyclopedia of Philosophy is a freely-accessible online encyclopedia of philosophy maintained by Stanford University. Each entry is written and maintained by an expert in the field, including professors from over 65 academic institutions worldwide...