Paula Rojas Blog

Intellectual property, often referred to as IP, is an umbrella term for various legal exclusive rights or entitlements that attach to certain types of commercially viable intangible products of the human mind. Intellectual property laws, conferred by jurisdictions and countries, enable owners, inventors, and creators to protect their intellectual property from unauthorized uses.

Intellectual property laws encompass a variety of traditional legal fields: patents, design patents, utility patents, copyrights, moral rights, trademarks, trade dress, trade secrets, and rights of publicity.

• Patents are exclusive rights that protect, for a limited time, devices, methods, processes, or inventions that are novel and useful and that prevent anyone else from making, using, selling, or importing what is patented.
• Design patents specifically refer to the appearance of designed objects, specifically ornamental configuration and surface decoration that are new, original to the inventor, and not obvious.
• Utility patents apply to an apparatus, process, product, or a composition of matter.
• Copyrights protect original works of authorship such as literature, movies, art, choreographic works, software, and musical compositions.
• Moral rights, or droit moral, either exists as a separate law or as part of copyright law, depending on the country. Moral rights grant authors the right of attribution, the right to share in the profit if the work increases in value, and the right to prevent the work from being altered or destroyed.
• A trademark is a distinctive word, name, symbol, device, or other designation that identifies and distinguishes a company’s goods or services.
• Trade dress refers to the total image of a company’s goods or services and consists of distinctive, nonfunctional features such as the color or design of the packaging.
• Trade secrets protect a business or company’s confidential information and can include formulas, practices, processes, designs, instruments, or patterns that are generally not known to the public and confer an economic benefit.

Protecting property of the mind is not new. The Romans used a form of trademarks and patents were first protected in the Middle Ages with the Venetian Patent Act of 1474. However, the modern and widespread use of the phrase “intellectual property” can be traced to 1967 when the United Nations World Intellectual Property Organization (WIPO) was formed and WIPO began actively promoting the phrase.

Intellectual property laws in general are based on the legal concept that a person can own real property and tangible objects and that property is an asset to be bought, sold, licensed, or even given away at no cost. Intellectual property laws confer those same rights onto intangible products of the mind. The move from owning real property to owning property of the mind is philosophically complex and continually controversial.

The common-law rationale owes its origin to John Locke’s notion in Two Treatises on Government (1690) that the labor from a person’s hands belongs to him or her. These economically based intellectual property systems assume that if creators cannot own what they create, they will have no economic incentive to work, and that once an intellectual property right is sold, the creator forfeits ongoing interest.

Civil law systems draw from Georg Wilhelm Friedrich Hegel’s concepts in Philosophy of Right that human beings imbue objects with their soul and will. These types of intellectual property systems provide both economic protection and inalienable droit moral laws that give creators some ongoing control over the work they create and the right to profit when the work increases in value regardless of who owns the actual object.

Attempts to harmonize intellectual property laws date to the late 1800s, but no comprehensive international agreement existed until 1994 when the World Trade Organization (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS) was signed. TRIPS established minimum standards of protection for several forms of intellectual property with mandated enforcement provisions and an enforceable mechanism for dispute settlement.

In the past forty years, in response to the rise of the Internet and technological innovations that allow instantaneous communication and perfect copies, intellectual property protection has been continually extended in duration and expanded to cover new products not previously protected such as biotechnology, databases, new plant varieties, computer chips, and boat hull designs. These changes generate strong support and serious criticism. The debate over IP protection is more contentious today than ever before.

Proponents of expanded protection insist that most advances in communications, agriculture, transportation, and health care would not exist without strong intellectual property laws. They maintain that intellectual property rights boost cultural development and standards of living, as well as promote public health and safety. They point to the role that intellectual property laws have played in the rising standards of living in developing countries such as China and India. For example, in 1999 India passed its first intellectual property specific law to protect the intellectual creations of its computer scientists. Proponents insist that this law supports the now burgeoning hightech industry in India, which would otherwise not have developed.

Criticism of the idea of “intellectual” property is almost as old as the protection itself. Thomas Jefferson questioned whether copyright was a natural right and did not believe that inventions could be property. Modern critics consider the phrase misleading. They suggest that the word “property” implies scarcity and ideas and inventions are not scarce.

They argue that using analogies to real property is flawed and that intellectual property protection is a form of government subsidy, that is, a legally enforceable monopoly power protecting the creator while preventing all others from using a valuable cultural resource. As more cultural property is controlled by a few people or a few corporations, the general public suffers because strong IP control hinders the free exchange of ideas and products vital to a strong economy and culture.