Intellectual property

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The term intellectual property refers to certain kinds of exclusive rights that are treated by law more or less like "property" though they 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 and selling copies 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. These rights, conferred by law, can be given, sold, or rented (called "licensing") in much the same way as physical property.

Many people reject the term 'intellectual property', which is of relatively recent origin, and substitute the term 'government-granted monopoly'. Copyrights and patents are a monopoly given government sanction for a limited period of time; thus people did not originally consider them property. While it is true that copyright and patents have something in common with more traditional forms of property, many people argue that this commonality is insufficient to justify the use of the term 'property'.

The most common forms of 'intellectual property' are copyright, patent, trademark and service mark, and trade secret. There are also more specialized varieties of intellectual property, such as circuit design rights, plant breeder rights and plant variety rights.

Copyrights

A copyright is an exclusive right to copy, sell, or perform a creative work such as a book or play. These are granted to artists for a limited time so that they can profit from the work, thereby encouraging artists to create such work. For example, if you buy a videotape recording of a movie, you own the tape, and may view it, sell it, destroy it, or exercise any of the other traditional rights of physical property; but you are forbidden to sell (or even give away) copies of the tape, or to play the tape in public, because the movie's producers still "own" those rights exclusively. Copyrights also cover derivative works. For example, the author of a book also owns the exclusive right to make audiotapes of the book, or movies using the book's dialog or characters. On paper, copyrights have a finite term (in most countries, they expire 70 years after the last surviving author dies); however, some argue that recent developments, such as the Sonny Bono Copyright Term Extension Act, have made this term effectively perpetual in practice.

Patents

A patent is an exclusive right to exclude others from making and selling useful devices based on your patented invention. These are granted to inventors for the same reasons as copyrights to artists: to encourage inventions by enhancing the inventor's ability to profit from them. For example, you might own a lamp, but the patent holder could exclude you from selling a similar lamp (or any other device) built from scratch if it uses the claimed functional design features covered by the patent holder's patent. The right to exclude must be enforced in private actions, e.g. lawsuits, by the patent holder. Even if you independently invent something, the patent holder still has some grounds to sue you, but the judge could use the independent invention as evidence that the invention was too obvious to merit a patent. A patent is the only form of intellectual property whose term typically expires within the useful lifetime of the invention, in most jurisdictions 20 years. Pharmaceutical manufacturers take this into account when setting their release cycles.

Trademarks and Service Marks

A trademark is a name, design, or other distinguishing mark by which a business or organization identifies itself to the public. Trademarks are established by use and are designed to prevent others from adopting a deceptively similar name or image such that it would confuse the public. For example, if a company other than the Atlanta-based Coca-Cola Corporation sold a soft drink called "Coke" in red and white cans with similar logos, the Coca-Cola Corporation could sue for trademark (and possibly also tradedress) infringement arguing that consumers might think that the product came from Coca-Cola Corporation. Trademarks last for as long as they are defended. Ineffectively defended trademarks can be found void by the courts.

A service mark is a word, phrase, logo, symbol, color, sound, or smell used by a business to identify a service and distinguish it from those of its competitors. If the business uses the name or logo to identify a product, such as a camera, it is called a trademark. In practice, the legal protections for trademarks and service marks are identical.


Trade secrets

A trade secret is a private piece of information used by a company to give it a competitive advantage over companies without the information. Trade secrets are not themselves protected by law, but the status of a piece of information as a trade secret can be used in contract negotiation and civil litigation. For example, the Coca-Cola company might hold its formula (which is no longer patentable) as a trade secret, revealing it only to a few persons it hires to make the drink. The fact that the formula is listed in a contract as a trade secret gives the company the specific right to sue parties to the contract who reveal it. Trade secrets tend to be controlled throught the use of licensing and restrictions on unauthorized disclosure; however, in most cases, it is not inherently unlawful for those not party to any non-disclosure agreement (NDA) to "reverse engineer" a legitimately obtained product to reveal the secrets unless the product comes with an end user license agreement (EULA). Trade secrets last as long as they are defended.

The general trend in intellectual property law has been to increase the term of the government-granted monopoly and to treat corporations as the legitimate "authors" 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 all 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 the trademark the phrase, "Where do you want to go today?". 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] 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.

Related entries: property, real property, personal property, fair use.

Types of intellectual property: copyright, patent, trade dress, trademark, trade secret.

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