What is Intellectual Property?
Intellectual property (IP) refers to creations of the mind: inventions, literary and artistic works,
and symbols, names, images, and designs used in commerce.
IP is divided into two categories: Industrial property, which includes inventions (patents),
trademarks, industrial designs, and geographic indications of source; and Copyright, which
includes literary and artistic works such as novels, poems and plays, films, musical works,
artistic works such as drawings, paintings, photographs and sculptures, and architectural
designs. Rights related to copyright include those of performing artists in their performances,
producers of phonograms in their recordings, and those of broadcasters in their radio and
television programs.
Intellectual property (IP) is a term referring to a number of distinct types of creations of the
mind for which a set of exclusive rights are recognizedand 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 rights 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 majority of the world.[2]
The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins
of copyright 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 whose constitution granted legislative power over
the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation.[4]
When the administrative secretariats established by the Paris Convention (1883) and the Berne
Convention (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. 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.[5]
"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."[6]
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."[7] 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."[8] In Europe, French author A. Nion mentioned proprit 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.[9] The Talmud contains the prohibitions against certain mental
crimes (further elaborated in the Shulchan Aruch), notably Geneivat da'at ( , literally
"mind theft"), which some have interpreted[10] as prohibiting theft of ideas, though the doctrine is
principally concerned with fraud and deception, not property.
[edit] Objectives
[edit] 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 costs.[11] Some
commentators, such as David Levine and Michele Boldrin, dispute this justification.[12]
[edit] Economic growth
Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to
intangible assets.[13] "IP-intensive industries" are estimated to generate 72 percent more value
added (price minus material cost) per employee than "non-IP-intensive industries".[14][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."[15]
[edit] Morality
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.[16]
[edit] Criticism
The term itself
Free Software Foundation founder 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" and that it creates a "bias" by confusing these monopolies with
ownership of limited physical things, likening them to "property rights".[17] Stallman advocates
referring to copyrights, patents and trademarks in the singular and warns against abstracting
disparate laws into a collective term.
Lawrence Lessig, along with many other copyleft 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).[18]
[edit] Limitations
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,[19][20] and argue that the public interest is harmed by ever
expansive monopolies in the form of copyright extensions, software patents and business method
patents.
Some libertarian 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 uses the following scenario to argue this point:
[I]magine the time when men lived in caves. One bright guylet'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.[21]
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[22] (raising fears that it may some day be eternal).[18][23][24][25] 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,[26] (and in the US, certain
living organisms have been patentable for over a century)[27] and colors have been trademarked.
[28]
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[29] and Thomas Alured Faunce[30] have written.
Thomas Jefferson 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."[31]
In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy
statement to frame how governments should make balanced intellectual property law
