Intellectual Property

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Contents

Definition

Intellectual property is a term used to refer to legal protections given to certain people regarding ideas. The most common forms of intellectual property include:

History

Historically, creators of ideas were given legal protection, at common law and by statute, in an effort to encourage the production of ideas and reward the people who created those ideas.

The rise of Information Technology such as computers, the Internet, telecommunications, and the like, particularly as music, photographs and video are recorded digitally, rather than through an analog process closely tied to a particular medium like film or tapes or records, has prompted a reexamination of the policies underlying intellectual property.

Another major driving force behind the reconsideration of policies related to intellectual property is Globalization. Historically, foreign markets for intellectual property were relatively unimportant. People who did not reside in nations that had strong intellectual property laws rarely sought to undertake activities that would violate intellectual property laws, in part because doing so was burdensome, in part because much of the entertainment content required laborious translation, and in part because their own economies were ill suited to use the ideas patented elsewhere within the terms of the patents. Likewise, foreign trademarks had little value abroad. Also, owners of intellectual property were not concerned about violations abroad since they represented revenues that the owners were unlikely to be able to exploit even if their right were honored abroad, so it didn't cost intellectual property owners very much.

Now, this is no longer the case. Multinational companies operate worldwide and as a result, their trademarks have meaning worldwide. Books, movies and photographs are instantly transmitted across the world via the Internet and other modern forms of communication and transportation. Translation resources are more widely available. The ability to distribute works once they are translated is great. Most of the world has the economic means to use modern patents. Owners of intellectual property seek to gain revenues away from their home countries. And, many modern forms of entertainment (like American movies) translate far better to varied cultures than less visual forms of culture which were more economically important in the past.

The Response

Governments have responded to the increasing importance of intellectual property in the economy by giving greater protection to it. Copyrights are far longer than they were when the United States government first authorized them. The scope of intellectual property rights is greater than it once was. Patents are far more numerous, and the area of business processes, once almost never patented, has now seen an explosion of often dubious patents.

Major players in the intellectual property area, such as the Recording Industry Association of America (RIAA) which provides a common front for the handful of companies which own the rights to almost all music published in the United States, have aggressively sought stronger copyright protections, greater foreign enforcement of copyrights, and greater enforcement against casual customers who copy their music.

Critique

Stronger intellectual property rights, by definition, mean a smaller "public domain". For example, when copyrights are extended from a historical 28 years to a current term of life plus 70 years (or nearly a century for anonymous or corporate works), the result is that large numbers of older works can no longer be used freely without violating the law. Likewise, the 1976 change in copyright law, which caused it to protect all works, rather than merely all published works, dramatically narrowed the scope of the public domain.

While the main purpose of intellectual property is to protect the economic rights of the author, intellectual property rights often provide protection that far exceeds the economic value of a work, and can be used to discourage dissent or the free exchange of ideas.

References

Neil Winstock Netanel, "Copyright and a Democratic Civil Society", 106 Yale L.J. 283 (Nov. 1996). This article makes the case for limiting the scope of copyright law to encourage creative production in the marketplace and improve our national political discourse.

Stephen L. Carter, "The Trouble With Trademark", 99 Yale L. J. 759 (January 1990). This article suggests that the old system in which trademark protection was acquired solely through use was preferable to the current system where a simple paper filing allows one to get national trademark protection with only a minimal economic investment in the trademark.


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