Difference between revisions of "Intellectual property" - New World Encyclopedia

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'''Intellectual property''' ('''IP''') refers to the intangible creations of the human [[intellect]]. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are [[copyright]]s, [[patent]]s, [[trademark]]s, and [[trade secret]]s.
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The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods, which benefits society as a whole, or the "public good," while still assigning rights to their creators. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. However, the [[Intangible property|intangible]] nature of intellectual property presents difficulties when compared with traditional property like land or goods. Balancing rights so that they are strong enough to encourage the creation of intellectual goods, but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.
  
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In [[law]], particularly in [[common law]] jurisdictions, '''intellectual property''' or ''IP'' refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other [[intangible asset|intangible]] subject matter. In general terms this legal entitlement sometimes enables its holder to exercise exclusive control over the use of the IP. The term ''intellectual property'' reflects the idea that the subject matter of IP is the product of the mind or the intellect, and that once established, such entitlements are generally treated as equivalent to tangible property, and may be enforced as such by the [[court]]s.
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==Definition==
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According to the World Intellectual Property Organization (WIPO): <blockquote>Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.<ref>[https://www.wipo.int/about-ip/en/ What is Intellectual Property?] ''World Intellectual Property Organization''. Retrieved January 19, 2021.</ref></blockquote>
  
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The most well known forms of intellectual property include [[copyright]]s, [[patent]]s, [[trademark]]s, and [[trade secret]]s. Patents and trademarks fall into a particular subset of intellectual property known as [[industrial property]].
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The World Trade Organization (WTO) defines intellectual property as follows:
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<blockquote>Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.<ref name=WTO>[https://www.wto.org/english/tratop_e/trips_e/intel1_e.htm What are intellectual property rights?] ''World Trade Organization''. Retrieved January 19, 2021.</ref></blockquote>
  
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==Overview==
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==History==
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[[File:Statute of anne.jpg|thumb|200px|The [[Statute of Anne]] came into force in 1710]]
  
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The purposes of laws dealing with exclusive rights have varied, but they all share in common the appearance of granting the "owner" of the exclusive rights a monopoly on copying or distribution of a protected form of "property". This was originally done to grant a boon to a king's favourite (with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). The United States Constitution accords Congress the power to promote the progress of science and the useful arts by granting exclusive rights to authors and inventors for limited times.
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The [[Statute of Monopolies]] (1624) and the British [[Statute of Anne]] (1710) are seen as the origins of [[patent law]] and [[copyright]] respectively, firmly establishing the concept of intellectual property.<ref>Brad Sherman and Lionel Bently, ''The Making of Modern Intellectual Property Law'' (Cambridge University Press, 1999, ISBN 978-0521563635). </ref>
  
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The use of the term "intellectual property" is often predicated on considerations such as the "[[free rider problem]]" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works.  Proponents of the term tend to address exclusive rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analyses associated with the term tend to overlook or even to attempt to defeat the fact, noted by Thomas Jefferson when he took part in wording the exclusive rights clause, that published information is intrinsically free and that in fact this is the whole point of exclusive rights — to publish, to provide information to the public.
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"Literary property" was the term predominantly used in the British legal debates of the 1760s and 1770s over the extent to which authors and publishers of works also had rights deriving from the common law of property (''[[Millar v Taylor]]'' (1769), ''[[Hinton v Donaldson]]'' (1773), ''[[Donaldson v Becket]]'' (1774)). The first known use of the term "intellectual property" dates to this time, when a piece published in the ''[[Monthly Review (London)|Monthly Review]]'' in 1769 used the phrase: "What a niggard this Doctor is of his own, and how profuse he is of other people's intellectual property." <ref> Ralph Griffiths, ''The Monthly Review, Or, Literary Journal; Volume 61'' (Wentworth Press, 2019, ISBN 978-1012313951).</ref> The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays: "New-England Association in favour of Inventors and Discoverers, and particularly for the Protection of intellectual Property."<ref>Samuel Latham Mitchell and Edward Miller, [https://books.google.com/books?id=Ij9JAAAAYAAJ&pg=PA303#v=onepage&q&f=false ''Medical Repository Of Original Essays And Intelligence''] (1808), 303. Retrieved January 19, 2021. </ref>
  
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By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup her or his investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his or her invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.
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The term 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." 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."<ref>[https://ladas.com/education-center/a-brief-history-of-the-patent-law-of-the-united-states-2/ A Brief History of the Patent Law of the United States] ''Ladas & Parry'', May 7, 2014. Retrieved January 20, 2021. </ref> In Europe, [[France|French]] author Alfred Nion mentioned ''propriété intellectuelle'' in his ''Droits civils des auteurs, artistes et inventeurs'', published in 1846.<ref>Alfred Nion, ''Droits civils des auteurs, artistes et inventeurs'' (Civil rights of authors, artists and inventors) (HardPress Publishing, 2019, ISBN 978-0371209462).</ref>
  
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In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rightsholder, even to the detriment of society at large; and this development has attracted some opponents.
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When the administrative secretariats established by the [[Paris Convention for the Protection of Industrial Property|Paris Convention]] (1883) and the [[Berne Convention for the Protection of Literary and Artistic Works|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]].
  
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In some fields, patent law has had an unintended consequence: treating abstract rules and mental products like concrete ones has stifled innovation in those fields, rather than aiding it.  
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The organization subsequently relocated to Geneva in 1960 and was succeeded in 1967 with the establishment of the [[World Intellectual Property Organization]] (WIPO) by [[Convention Establishing the World Intellectual Property Organization|treaty]] as an agency of the [[United Nations]]. According to legal scholar [[Mark 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 there until passage of the [[Bayh-Dole Act]] in 1980.<ref name=Lemley>Mark Lemley, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602 Property, Intellectual Property, and Free Riding] ''Texas Law Review'' 83 (2005). Retrieved January 20, 2021.</ref>
  
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The four main types of non-physical things considered by this point of view are copyrights, patents, trademarks and trade secrets. Common types of intellectual property rights include conflicting areas of law:
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<blockquote>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.<ref>Adam Mossoff, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=863925 Rethinking the Development of Patents: An Intellectual History, 1550–1800] ''Hastings Law Journal'' 52 (2001). Retrieved January 20, 2021.</ref></blockquote>
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*[[Copyright]]s, which give the holder some exclusive rights to control some reproduction of works of authorship, such as books and music, for a certain period of time.
 
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*[[Patent]]s give the holder an [[exclusive right]] to prevent third parties from commercially exploiting an invention for a certain period, typically 20 years from the filing date of a patent application.
 
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*[[Trademark]]s are distinctive names, phrases or marks used to identify products to consumers.
 
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*[[Trade secret]]s, where a company keeps information secret, perhaps by enforcing a contract under which those given access to information are not permitted to disclose it to others.
 
  
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These rights, conferred by law, can be given, sold, rented (called "[[licensing]]") and, in some countries, even [[mortgage]]d, in much the same way as physical [[property]] (especially [[real property]]).  However, the rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified provisions for [[fair use]] for copyrighted works). Some analogize these considerations to public [[easement]]s, since they grant the public certain rights which are considered essential.
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Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage [[innovation]]. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.<ref name=Lemley/> This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.<ref>[https://www.economist.com/special-report/2005/10/22/the-liquidity-of-innovation The Liquidity of Innovation] ''The Economist'', October 22, 2005. Retrieved January 20, 2021.</ref>
  
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It is important to understand that authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term ''intellectual property'' to be misleading. Some use the term "intellectual monopoly" instead, because such so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a [[natural rights]] notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition.  Others object to the negative connotation of the term "[[monopoly]]" and cite the wide availability of [[substitute good]]s.  Still others prefer not to use a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.
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According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift."<ref name=Morin>Jean-Frédéric Morin, [http://www.chaire-epi.ulaval.ca/sites/chaire-epi.ulaval.ca/files/publications/morin_2014_paradigm_shift_agency_of_academics.pdf Paradigm shift in the global IP regime: The agency of academics] ''Review of International Political Economy'' 21(2) (2014): 275–309. Retrieved January 20, 2021.</ref> Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO's activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles. However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.<ref name=Morin/>
  
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==Legal status==
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==Rights==
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There are many types of intellectual property. The WTO notes two main areas: (1) Copyright and rights related to copyright; and (2) Industrial property.<ref name=WTO/>
  
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Exclusive rights are generally divided into two categories: those that grant [[exclusive rights]] only on copying/reproduction of the item or act protected (e.g. [[copyright]]) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the design of something, but could not stop them from making that design if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.
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The [[European Union]] (EU) characterizes intellectual property into two types as follows:
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<blockquote>Intellectual property includes all exclusive rights to intellectual creations. It encompasses two types of rights: industrial property, which includes inventions (patents), trademarks, industrial designs and models and designations of origin, and copyright, which includes artistic and literary property.<ref>[https://www.europarl.europa.eu/factsheets/en/sheet/36/intellectual-industrial-and-commercial-property Intellectual, industrial and commercial property] ''European Parliament''. Retrieved January 19, 2021.</ref></blockquote>
  
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There are also more specialized varieties of so-called [[sui generis]] exclusive rights, such as circuit design rights (called [[mask work]] rights in USA law, protected under the [[Integrated Circuit Topography Act]] in Canadian law, and in [[EC Law|European Community Law]] by Directive 87/54/EEC of [[16 December]] [[1986]] on the legal protection of topographies of semiconductor products), [[plant breeders' rights]], [[plant variety rights]], [[industrial design rights]], [[supplementary protection certificates]] for pharmaceutical products and [[database rights]] (in [[EC Law|European law]]).
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===Patents===
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{{Main|Patent}}
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A [[patent]] is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an [[invention]] for a limited period of time, in exchange for the public disclosure of the invention:
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<blockquote>A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.<ref>[https://www.wipo.int/patents/en/ What is a patent?] ''WIPO''. Retrieved January 21, 2021.</ref></blockquote>
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An invention is a solution to a specific technological problem, which may be a product or a process, and generally has to fulfill these requirements: it has to be [[novelty (patent)|new]], [[inventive step and non-obviousness|not obvious]], there needs to be an [[industrial applicability]], its subject matter must be accepted as “patentable” under law, and the invention must be disclosed in an application such that it can be replicated by a person with an ordinary level of skill in the relevant technical field.<ref>[https://www.wipo.int/patents/en/faq_patents.html Applying for patent protection] ''WIPO''. Retrieved January 21, 2021.</ref>
  
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==Types and scope of intellectual property==
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===Copyright===
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{{Main|Copyright}}
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A [[copyright]] gives the creator of an original work [[exclusive right]]s to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works."<ref>Peter K. Yu, ''Intellectual Property and Information Wealth'' (Praeger, 2006, ISBN 978-0275988821).</ref> Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.<ref>Simon Stokes, ''Art and Copyright'' (Hart Publishing, 2001, ISBN 978-1841132259).</ref>
  
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Exclusive rights may be analyzed in terms of their subject matter, the actions they regulate in respect of the subject matter, the duration of particular rights, and the limitations on these rights. Exclusive rights policies are conventionally categorized according to subject matter: inventions, artistic expression, secrets, semiconductor designs, and so on.
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===Industrial design rights===
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{{Main|Industrial design right}}
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An [[industrial design right]] (sometimes called "design right" or "design patent") protects the visual design of objects that are not purely utilitarian: An industrial design constitutes the ornamental aspect of an article.<ref>https://www.wipo.int/designs/en/ What is an industrial design?] ''WIPO''. Retrieved January 21, 2021.</ref>
  
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Generally, the action regulated by exclusive rights is unauthorized reproduction.  However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (I.e., a negative right.), but not necessarily a right to do it themselves (I.e., a positive right.).  For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.
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An industrial design consists of the creation of a shape, configuration, or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity, or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.
  
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Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right.  The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles.  In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the [[European Union]], for example, [[competition law]] has a strong influence on how licences are granted by large companies.
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===Plant varieties===
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{{Main|Plant breeders' rights}}
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[[Plant breeders' rights]] or '''plant variety rights''' (PVR) are a form of intellectual property used to protect unique plant varieties. Plant varieties awarded PVR status are freely available to others for use in future breeding programs, and plant breeders collect royalties on the production and sale of seed of their protected varieties. In this way, the PVR system both delivers protection and stimulates further innovation in plant breeding.
  
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Copyright licenses grant permission to do something. They are not contracts, since contracts require mutual consent.  A patent license is a declaration not to do some things, under certain conditions.  Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed [[fair use]].  Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of [[patent]] law.
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To qualify for Plant Variety Rights, a new variety must undergo official tests to determine whether it is distinct (clearly distinguishable from any other existing variety by one or more characteristics), uniform (individual plants must be sufficiently uniform in a range of key characteristics), and stable (the plant variety reproduces true to type from one generation to the next).<ref>[https://plantvarietyrights.org/plant-variety-rights.html Plant Variety Rights]   Retrieved January 21, 2021.</ref>
  
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Most exclusive rights are awarded by a government for a limited period of time.  Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an [[pareto efficiency|efficient]] outcome.  Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved.  On the other hand, "intellectual property" law could in some circumstances lead to increased [[transaction costs]] that outweigh these gains (see [[Coase's Penguin]]).  Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented.
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===Trademarks===
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{{Main|Trademark}}
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A [[trademark]] is a recognizable word, phrase, [[symbol]], and/or [[design]] that distinguishes [[Good (economics)|products]] or [[Service (economics)|services]] of a particular trader from similar products or services of other traders.<ref>[https://www.uspto.gov/trademarks/basics/trademark-patent-or-copyright Trademark, Patent, or Copyright?] ''US Trademark and Patent Office''. Retrieved January 21, 2021.</ref>
  
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==History==
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<blockquote>A trade mark is a sign which can distinguish your goods and services from those of your competitors (you may refer to your trade mark as your “brand”). ... In other words they can be recognised as signs that differentiates your goods or service as different from someone else’s.<ref>[https://www.gov.uk/guidance/unacceptable-trade-marks Unacceptable trade marks] ''Intellectual Property Office'', May 16, 2014. Retrieved January 21, 2021.</ref></blockquote>
  
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===History of the individual rights===
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===Trade dress===
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{{Main|Trade dress}}
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[[Trade dress]] is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.<ref>Peter S. Menell, Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh, ''Intellectual Property in the New Technological Age'' (Clause 8 Publishing, 2020, ISBN 978-1945555152).</ref>
  
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The [[Patent#Early_history_of_patents|early history of patents]] dates from the 15th century in England and Venice.
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===Trade secrets===
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{{Main|Trade secret}}
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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 and customers. Two of the most famous trade secrets in the United States, for example, are the recipe for [[Coca Cola]] and Colonel Harland Sanders' handwritten Original Recipe(R) for [[Kentucky Fried Chicken]].
  
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Copyright was not invented until after the advent of the printing press and wider public literacy. In [[England]] the King was concerned by the unfair copying of books and used the [[royal prerogative]] to pass the Licensing Act [[1662]] which established a register of licensed books and required a copy to be deposited with the Stationers Company. The [[Statute of Anne]] was the first real act of copyright, and gave the author rights for a fixed period. Internationally, the [[Berne Convention]] in the late [[1800s]] set out the scope of copyright protection and is still in force to this day.
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There is no formal government protection granted; each business must take measures to guard its own trade secrets. A company can protect its confidential information through Non-disclosure agreements (NDA) and non-compete clauses for employees, and confidentiality agreements for vendors or third parties in business negotiations. The protection of a trade secret is perpetual and does not expire after a specific length of time, as a [[patent]] does. The lack of formal protection, however, means that a third party is not prevented from independently duplicating and using the secret information once it is discovered.
  
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Design rights started in England in [[1787]] with the Designing & Printing of Linen Act and have expanded from there.
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==Motivation and justification==
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The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.<ref name=Goldstein/>
  
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===History of the term===
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The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers.<ref name=Goldstein>Paul Goldstein and R. Anthony Reese, ''Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property'' (Foundation Press, 2010, ISBN 978-1599417899).</ref> To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation.<ref name=Goldstein/> By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work.
  
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The term ''intellectual property'' appears to have originated in Europe during the [[19th century]]. [[France|French]] author A. Nion mentions "''propriété intellectuelle''" in his ''Droits civils des auteurs, artistes et inventeurs'', published in [[1846]], and there may well have been earlier uses of the term.
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Other developments in intellectual property law, such as the [[Leahy–Smith America Invents Act|America Invents Act]], stress international harmonization. There has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of [[commodification]] derived from this possibility.<ref>Paolo Davide Farah and Ricardo Tremolada, [https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2472339 Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights] ''Transnational Dispute Management'' 11(2) (March 2014). Retrieved January 21, 2021.</ref>
  
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In 1847, a U.S. circuit court defined intellectual property as
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===Financial incentive===
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"the labors of the mind, productions and interests as much a man's own...as the wheat he cultivates." Woodbury & Minot, ''Rep. Cases Circuit Court of U.S.'', I. 56.
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Exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property. The United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads: <blockquote>The Congress shall have power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."<ref>[https://fairuse.stanford.edu/law/us-constitution/ U.S. Constitution Article I Section 8 Clause 8] ''Stanford University Libraries''. Retrieved January 22, 2021. </ref></blockquote>
  
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Worldwide, however, use of the term was uncommon until its use in the [[Geneva, Switzerland|Geneva]]-based [[World Intellectual Property Organization]] (WIPO), which was established in 1967.
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===Economic growth===
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These economic incentives are expected to stimulate innovation and contribute to technological progress, leading to economic growth.<ref>Rod Falvey, Neil Foster, and David Greenaway, [https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1467-9361.2006.00343.x Intellectual Property Rights and Economic Growth] ''Review of Development Economics'' 10(4) (November 2006): 700-719. Retrieved January 21, 2021. </ref>
  
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With the [[French Revolution]], which followed the [[American Revolution]], there was controversy over the nature of copyright and patent protections in Europe; those who supported unlimited copyrights frequently used the term ''property'' to advance that agenda, while others who supported a more limited system sometimes used the term ''[[intellectual rights]]'' (''droits intellectuels'').
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The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The [[Anti-Counterfeiting Trade Agreement]] (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally."<ref>[https://www.international.gc.ca/trade-agreements-accords-commerciaux/topics-domaines/ip-pi/acta-text-acrc.aspx?lang=eng Anti-Counterfeiting Trade Agreement] ''Global Affairs Canada''. Retrieved January 22, 2021. </ref>
  
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The system currently used by much of the Western world is more in line with the second view, with limited copyrights that eventually expire.  However, the French Civil Code notion of "moral rights" has connotations similar to natural rights that are inconsistent with the American tradition.
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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."<ref>[https://www.wipo.int/wipo_magazine/en/2007/04/article_0006.html Measuring the Economic Impact of Intellectual Property Systems] ''WIPO'', July, 2007. Retrieved January 22, 2021. </ref>
  
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==Critique==
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===Morality===
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In the nineteenth century, [[Lysander Spooner]] argued:
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<blockquote>that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.<ref>Lysander Spooner, ''The Law of Intellectual Property'' Anodos Books, 2018, ISBN 978-1725719620).</ref></blockquote>
  
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===Controversy over term===
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If one believes that intellectual property is no different from material property, then it follows that the same moral rights that govern material property apply to intellectual property. For example, [[Ayn Rand]] argued 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.<ref>Ayn Rand, ''Capitalism: The Unknown Ideal'' (Signet, 1986, ISBN 978-0451147950).</ref>
  
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In [[civil law (legal system)|civil law]] jurisdictions, intellectual property has often been referred to as [[intellectual rights]], traditionally a somewhat broader concept that has included [[moral rights]] and other personal protections that cannot be bought or sold. Use of the term ''intellectual rights'' has declined since the early [[1980]]'s, as use of the term ''intellectual property'' has increased.
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According to Article 27 of the [[Universal Declaration of Human Rights]], "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."<ref> The Universal Declaration of Human Rights ''United Nations''.</ref> Although the relationship between intellectual property and [[human rights]] is a complex one, there are moral arguments for intellectual property.
  
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An alternate term '''monopolies on information''' has emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably [[Richard Stallman]] - ''see below''.
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The arguments that justify intellectual property rights fall into three major categories: Lockeans argue that intellectual property is justified based on deservedness and hard work; Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation; and personality theorists regard intellectual property as an extension of an individual.<ref>[https://plato.stanford.edu/entries/intellectual-property/ Intellectual Property] ''Stanford Encyclopedia of Philosophy'', October 10, 2018. Retrieved January 22, 2021.</ref>
  
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Another issue is that if intellectual property exists there must be a parallel concept of [[intellectual capital]] - [[capital (economics)]] being the property that permits more property to be created. This is a controversial notion that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual [[capital asset]]. ''See more in the'' economic view ''section below, and the term [[instructional capital]] that avoids the controversy but applies only to [[patent]]s and non-fiction [[copyright]], so is not a full substitute.''
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# ''Natural Rights/Justice Argument'': This argument is based on [[John Locke]]'s idea that a person has a natural right over the labor and products which are produced by their body. Appropriating these products is viewed as unjust. Although Locke never explicitly stated that this natural right applied to products of the mind,<ref>Ronald V. Bettig, "Critical Perspectives on the History and Philosophy of Copyright" in ''Copyrighting Culture: The Political Economy of Intellectual Property'' by Ronald V. Bettig (Routledge, 1996. ISBN 978-0813333045), 19–20.</ref> it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.<ref name=DeGeorge>Richard T. De George, "Intellectual Property Rights," in ''The Oxford Handbook of Business Ethics'', by George G. Brenkert and Tom L. Beauchamp (eds.) (Oxford, England: Oxford University Press, 2012, ISBN 978-0199916221), 415–418.</ref>
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# ''Utilitarian-Pragmatic Argument'': According to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Innovation and invention in nineteenth century America has been attributed to the development of the [[patent]] system.<ref name=DeGeorge/> By providing innovators with "durable and tangible return on their investment of time, labor, and other resources," intellectual property rights promote public welfare by encouraging the "creation, production, and distribution of intellectual works."<ref>Richard A. Spinello and Maria Bottis, ''A Defense of Intellectual Property Rights'' (Edward Elgar Pub, 2009, ISBN 978-1847203953). </ref>
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# ''"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," which leads to the understanding that ideas are an "extension of oneself and of one's personality."<ref name=DeGeorge/> Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered.
  
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Trademarks, trade secrets, regional declaration do not have a time limit while copyrights and patents are of limited time (patents: 20 years).
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==Infringement, misappropriation, and enforcement==
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Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of [[civil law]] or [[criminal law]], depending on the type of intellectual property involved, jurisdiction, and the nature of the action.
  
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===Arguments against the term===
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===Patent infringement===
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[[Patent]] infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection is defined in the [[claim (patent)|claims]] of the granted patent. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention.
  
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The term ''intellectual property'' is often explained as being problematic by some because the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods ([[chattel]]) or land ([[real property]]).  The presence of the word ''property'' in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, who may thereby more readily draw on the rhetoric of property itself to remove the many natural and legal restrictions on exclusive rights which would be inappropriate if applied to physical goods.  For instance, most nations grant copyrights for only limited terms. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. This would severely differ from physical property laws, which rarely restrict the sale or modification of physical copies of a work (something which many copyright laws do restrict).
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There is [[safe harbor (law)|safe harbor]] in many jurisdictions to use a patented invention for research. However, safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.<ref>Alicia A. Russo and Jason Johnson, [http://perspectivesinmedicine.cshlp.org/content/5/2/a020933.full Research Use Exemptions to Patent Infringement for Drug Discovery and Development in the United States] ''Cold Spring Harbor Perspectives in Medicine'' 5(2) (February 2015). Retrieved January 22, 2021. </ref>
  
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A common argument against the term ''intellectual property'' is that information is fundamentally different from physical property in that a "stolen" idea or copy does not affect the original possession (see the [[tragedy of the commons]]). Another, more specific objection to the term, held by [[Richard Stallman]], is that the term is ''[http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty confusing]''. Stallman argues that the term implies a non-existent similarity between [[copyright]]s, [[patent]]s, [[trademark]]s, and other forms of exclusive rights which makes clear thinking and discussion about various forms difficult.[http://www.gnu.org/philosophy/not-ipr.xhtml]  Furthermore, most legal systems, including that of the [[United States]], hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
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Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling, or importing the patented item, while people in other countries may be free to exploit the patented invention in their country.
  
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Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "[[legal property|property]]", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
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In general, patent infringement cases are handled under civil law in the United States, but infringement in criminal law may be included in some jurisdictions.
  
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Stephan Kinsella, in his ''Journal of Libertarian Studies'' article "Against Intellectual Property" details his objection to [[Intellectual Property]] on the grounds that the term "property" implies scarcity, which may not be applicable to ideas.  
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===Copyright infringement===
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[[Copyright]] infringement (colloquially referred to as "piracy") is the unlawful use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display, or perform the protected work, or to make derivative works.<ref>Darrell Panethiere, [https://wayback.archive-it.org/all/20080816063513/http://portal.unesco.org/culture/en/files/28696/11513329261panethiere_en.pdf/panethiere_en.pdf The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development] ''e-Copyright Bulletin'' (April-June, 2005). Retrieved January 22, 2021.</ref> The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned.  
  
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Others point out that the law itself treats these rights differently than those involving physical property.  To give three examples from US law, [[copyright infringement]] is not punishable by laws against [[theft]] or [[trespass]], but rather by an entirely different set of laws with different penalties. [[patent infringement|Patent infringement]] is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is in the main measure federal.
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Enforcement of copyright is generally the responsibility of the copyright holder.<ref> Xuan Li and Carlos M. Correa (eds.), ''Intellectual Property Enforcement: International Perspectives'' (Edward Elgar Pub, 2009, ISBN 978-1848446526).</ref>
  
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Some proponents of the term argue that the law is simply recognising the reality of a situation. In some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is.  In these cases too the law accepts that the property cannot be stolen - if someone moves into the flat and prevents you from living there they are not regarded as 'thieves of the lease' but as '[[squatter|squatters]]' and the law provides different remedies.  [[Identity theft]] is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some.
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There are [[limitations and exceptions to copyright]], allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the [[fair use]] and [[fair dealing]] doctrine.
  
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==Trends==
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===Trademark infringement===
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[[Trademark]] infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer," uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark.
  
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Recently the general trend in exclusive rights law has been expansion: to cover new types of subject matter such as databases, to regulate new categories of activity in respect of the subject matter already protected, to increase the duration of individual rights, and to remove restrictions and limitations on these rights.
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In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in [[counterfeit]] goods and services.
  
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Another effect of this trend is an increase in the term of the government-granted rights, and an expansion of the definition of "author" to include corporations as the legitimate creators 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 works created by people while employed.  
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===Trade secret misappropriation===
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[[Trade secret]] misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while [[patent]]s and registered [[copyright]]s and [[trademark]]s are publicly available. Acts of [[industrial espionage]] are generally illegal in their own right under the relevant governing laws, and penalties can be harsh.
  
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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 to trademark the phrase, "Where do you want to go today?". Trademarks in [[EU]] and [[United States of America|US]] law can now encompass smells (e.g. of cut grass for tennis balls), shapes (e.g. of a soft drinks bottle), colors (e.g. red for fizzy drinks), words (e.g. COCA-COLA) and sounds (Intel has [http://tarr.uspto.gov/servlet/tarr?regser=serial&entry=75332744 registered a five-note melody with the USPTO]). The granting of patents for life forms, [[computer software|software]] algorithms and business models stretches the initial concept of giving the inventor limited rights to exclude the use of his invention.
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In the United States, trade secrets are protected under state law, and states have nearly universally adopted the [[Uniform Trade Secrets Act]]. The United States also has federal law in the form of the [[Economic Espionage Act of 1996]] ({{usc|18|1831|1839}}), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, {{uscsub|18|1831|a}}, criminalizes the theft of trade secrets to benefit foreign powers. The second, {{usc|18|1832}}, criminalizes their theft for commercial or economic purposes.
  
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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 of the overall creative output of a society.  The expansion of exclusive rights is also alleged to have led to the emergence of organizations whose business model is to frivolously sue other companies.
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==Criticisms==
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A major issue with regard to intellectual property is the question of whether it can be treated as "property" at all. The words of [[Thomas Jefferson]] written in a letter to Isaac McPherson on August 13, 1813, are pertinent:
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<blockquote>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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.<ref>[https://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html Thomas Jefferson to Isaac McPherson] August 13, 1813. Retrieved January 23, 20201</ref></blockquote>
  
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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]] (known in [[EU]] law as 'exhaustion of rights') 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.  Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC).
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Such distinctions between physical (tangible) and intellectual property are undeniable, and recognized by the framers of intellectual property law, whose purpose was to promote advances in science and the arts, while protecting the inventors and creators of their work from piracy. Thus, intellectual property protection includes term limits:
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<blockquote>After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.<ref name=Lessig>Lawrence Lessig, [https://wiki.lessig.org/Against_perpetual_copyright Against perpetual copyright] ''The Lessig Wiki''. Retrieved January 23, 2021.</ref></blockquote>
  
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At the same time, the growth of the [[Internet]], and particularly distributed search engines like [[Kazaa]] and [[Gnutella]], represents a challenge for exclusive rights policy.  The [[Recording Industry Association of America]], in particular, has been on the front lines of the fight against what it terms "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company [[Napster]], and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.
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Term limits notwithstanding, critics continue to reject the implied close connection with tangible property that intellectual property law guarantees. Their primary complaint lies with the term itself.
  
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==Non-government systems to protect intellectual products==
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===The term "intellectual property"===
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Criticism of the term "intellectual property" ranges from discussing its vagueness and abstract overreach to direct contention concerning the semantic validity of using words like "property" and "rights" which lead to "the idea that it's just like regular property."<ref name=Masnick>Mike Masnick, [https://www.techdirt.com/articles/20080306/003240458/if-intellectual-property-is-neither-intellectual-property-what-is-it.shtml If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?] ''Tech Dirt'', March 6, 2008. Retrieved January 23, 2021.</ref>
  
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The notion of protecting intellectual works is much older than copyright or patent law.  There have long existed socially-enforced systems for protecting intellectual works.  These include the ancient scholarly taboo against [[plagiarism]], along with other informal systems such as the [[code of non-infringement]], used by [[clown]]s to recognise each clown's exclusive rights to their unique style of makeup, costume and persona.  In the case of [['The Code']] of the clowns, the universality of the custom lends credence to the clown's belief that this protection is 'stronger' than that provided by trademark and copyright law.  Regardless of this, some clowns do trademark, copyright or patent "clown material", perhaps as protection from infringement by those outside the clown community.
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Law professor, writer and political activist [[Lawrence Lessig]], along with many other [[copyleft]] and free software activists, have criticized this 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).<ref name=Lessig/>
  
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On a more modern topic, "intellectual property" law has been brought to bear on [[DNS|domain names]] where trademark holders (in particular) have objected to third parties registering [[DNS|domain names]] which they believe should be theirs. The domain name registries, many of whom are not governmental organisations, have had to find a solution to this and therefore have dispute resolution systems which operate in parallel with national laws. The majority of the generic top level domain names (.com, .net etc.) use the [[ICANN]] model known as the [[Uniform Dispute Resolution Policy]] (UDRP). Other registries, such as the .uk registry [[Nominet UK]] have their own different systems.  For example, Nominet's sytem is called the Dispute Resolution Service.
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Other arguments along these lines claim that unlike the situation with tangible property, there is [[artificial scarcity|no natural scarcity]] of a particular idea or information: once it exists, it can be re-used and duplicated indefinitely without such re-use diminishing the original: <blockquote>When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be.<ref name=Stallman>Richard Stallman, [https://www.gnu.org/philosophy/words-to-avoid.en.html#IntellectualProperty Words to Avoid (or Use with Care) Because They Are Loaded or Confusing] ''GNU Operating System''. Retrieved January 23, 2021.</ref></blockquote>
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The term "intellectual property," by including the word "property" implies scarcity, which may not be applicable to ideas.<ref>Stephan Kinsella, [https://cdn.mises.org/15_2_1.pdf Against Intellectual Property] ''Journal of Libertarian Studies'' 15(2) (Spring 2001):1–53. Retrieved January 23, 2021.</ref>
  
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== Economic view ==
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====Alternative terms====
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Alternative terms, such as "Intellectual Monopoly," "Intellectual Privilege," "Imaginary Property," and others, have been suggested to replace "Intellectual Property."<ref name=Masnick/> "Imaginary Property" does not solve the problem of the implied connection to real property given that it continues to use the term; and the nature of intellectual property defined as  :creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" is hardly imaginary.
  
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Exclusive rights such as copyrights and patents give the holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly for this reason.
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"Intellectual Privilege" loses the term "property" but adds the term "privilege," for reasons which are not immediately apparent, especially when applied to laws of protection.  
  
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However, it may be the case that there are other items of "intellectual property" that are close substitutes.  For example, the holder of publishing rights for a book may be competing with various other authors to get a book published.  In such cases, economists may find that another [[market form]], such as [[oligopoly]] or [[monopolistic competition]] better describes the workings of the markets for expressive works and inventions. This is one reason to prefer the term ''exclusive rights'' rather than ''monopoly rights''.
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Economists [[Michele Boldrin]] and [[David K. Levine]] support the use of the term "intellectual monopoly" as a more appropriate and clear definition of the concept. They argue that rights to intellectual creations are very dissimilar from property rights, creating market monopolies rather than protecting the rights of the owner.<ref name=Boldrin>Michele Boldrin and David K. Levine, ''Against Intellectual Monopoly'' (Cambridge University Press, 2010, ISBN 978-0521127264).</ref>
  
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The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property.  Consumption of tangible property is rivalrous.  For example, if one person eats an apple, no other person can eat it; if one person uses a plot of land to build a home, that plot is unavailable for use by others.  Without the right to exclude others from tangible resources, a [[tragedy of the commons]] can result.  The subjects of exclusive rights do not share this feature.  For example, an indefinite number of copies can be made of a copyrighted book without interfering with the use of the book by owners of other copies.  A rationale for "intellectual property" therefore rests on incentive effects.  This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship. However, as [[Wikipedia]] and [[Free software]] demonstrate, works of authorship are written without direct financial incentives. Moreover, many important works were created before copyright was invented. One might argue that much more invention occurred after patents came into existence; however, one could also argue that patents were brought into law as the power and influence of industrial interests grew.
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For many, however, given the problems with the term, and the great differences among the areas to which it is applied, the conclusion is that it is better to use the specific terms, "copyright," or "patent," or "trademark," and so forth, rather than employing a general and misleading term.<ref name=Stallman/>
  
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Some hold that the three most common instruments provide "exclusive rights to use" different things: [[copyright]] covers original expressive works, [[patent]] covers solutions or ideas, and [[trademark]] covers means to uniquely identify a producer or other source of reputation.
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===Overbroad intellectual property laws===
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This view asserts that the three instruments have different histories, different intent, and allow three different kinds of incentives.
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In 2001 the [[United Nations]] [[Committee on Economic, Social and Cultural Rights]] concluded that intellectual property (IP) 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.<ref>[https://www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.15HRIntel-property.pdf Human rights and intellectual property] ''UN Committee on Economic Social and Cultural Rights'', Geneva, November 12–30, 2001. retrieved January 23, 2021.</ref>
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Yet, the [[WIPO]], the interest body which introduced the term treats this like a dogma:
 
  
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:"'''Intellectual property''' refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce." (Source: [http://www.wipo.org/about-ip/en/ WIPO])
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Such ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug: "An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations."<ref>Jorn Sonderholm, [https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-9991.2010.00358.x Ethical Issues Surrounding Intellectual Property Rights] ''Philosophy Compass'' 5(12) (2010): 1107–1115. Retrieved January 23, 2021.</ref>
  
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Some critics of the term say that this assertion is [[propaganda]] for a property view of these laws, and suggest terms such as [[individual capital]], [[instructional capital]] and [[social capital]] over the term "[[intellectual capital]]," which has an ambiguous status, even among believers in [[neoclassical economics]].
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In 2004 the General Assembly of the [[World Intellectual Property Organization]] (WIPO) adopted ''The Geneva Declaration on the Future of the World Intellectual Property Organization'' which calls on WIPO to "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself."<ref>[http://www.cptech.org/ip/wipo/genevadeclaration.html Geneva Declaration on the Future of the World Intellectual Property Organization] October 4, 2004. Retrieved January 23, 2021.</ref>
  
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The status of "IP" is disputed in [[India]], [[China]] and other [[developing nation]]s. The United States and the United Kingdom are the only two nations who consistently receive net balance of payments benefits from "IP". These nations are the chief promulgators of "intellectual property" systems.
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Critics have also noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection." The typical argument for broad protection is as follows:
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<blockquote>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.<ref name=Lemley/></blockquote>
  
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A more recent notion, proposing to extend exclusive rights to databases, has been introduced by the EU in 1996.  This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publication finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study has found that the introduction of
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Boldrin and Levine have disputed this justification. Citing problems such as inflated prices of pharmaceuticals to satisfy the patent holders leading to patients being unable to pay for needed medication, as well young people's "pirating" of high priced musical recordings simply to enjoy a wide variety of music, they suggest that rather than encouraging innovation, the protection given by intellectual property laws hinders rather than helps the competitive free market by creating "intellectual monopolies.”<ref name=Boldrin/>
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exclusive rights to databases in the EU did not do any good to the economy.
 
  
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The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits.  Many pool their resources to form organizations that attempt this such as the Business Software Alliance (BSA), which purports to represent the interests of the commercial software industry while the Recording Industry Association of America (RIAA) represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, it tends to reduce the rights of its primary beneficiaries, the general public.
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Historical analysis supports the contention that intellectual property laws may harm innovation:
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<blockquote>Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.<ref>Petra Moser, [https://www.aeaweb.org/articles?id=10.1257/jep.27.1.23 Patents and Innovation: Evidence from Economic History] ''Journal of Economic Perspectives'' 27(1) (2013): 23–44. Retrieved January 23, 2021.</ref></blockquote>
  
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Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions of the rightsholder.  The cost for this to the public is not easy to quantify.  The cost is distributed widely and unequally based on the need for the product.  Ironically the direct incentive beneficiary organizations are a good source for these data. The BSA reports a study that claims "while $80 billion in software was installed on computers worldwide last year, only $51 billion was legally purchased" (Source:[http://www.bsa.org/globalstudy/ BSA]) The BSA says "software pirates" avoided a cost of $29 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial [[opportunity cost]] that is yet uncounted. However, it's questionable if Microsoft would lower their price if it would earn $10 billion more on licensing from countries like Russia, Thailand, India and China where most of this "piracy" happens.
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===Duration and scope===
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The duration and scope of intellectual property rights have also been the subject of discussion and criticism.
  
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But Microsoft is dumping its selling price on competition from [[GNU/Linux]], for example with government clients. Because of this competition, Microsoft will also be forced to release an update to [[Internet Explorer]] to the public for its current product which it originally planned to release with its next operating system.
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Arguments have been advanced that copyright should be renewable, or even have no term limits at all.<ref>Mark Helprin, [https://www.nytimes.com/2007/05/20/opinion/20helprin.html A Great Idea Lives Forever. Shouldn't Its Copyright?] ''The New York Times'', May 20, 2007. Retrieved January 23, 2021.</ref> Changes in copyright law in the United States, such as the 1976 Copyright Act and the Sonny Bono Copyright Term Extension Act of 2008, eliminated the registration and notice requirements, and extended the duration of copyright. These changes increased the likelihood that of [[orphan works]] (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.<ref>Library of Congress Copyright Office [http://www.copyright.gov/fedreg/2012/77fr64555.pdf Docket No. 2012–12 Orphan Works and Mass Digitization] ''Federal Register'' 77(204) (October 22, 2012): 64555–64561. Retrieved January 23, 2021. See page 64555 first column for international efforts and third column for description of the problem.</ref>
  
−
===Valuation of intellectual property===
+
International efforts to harmonize the definition of "trademark" have led to expansion in scope. For example, the [[TRIPS Agreement|Agreement on Trade-Related Aspects of Intellectual Property Rights]] ratified in 1994, formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any [[sign (semiotics)|sign]] which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark.<ref>Katherine Beckman and Christa Pletcher, [http://ipjournal.law.wfu.edu/files/2010/10/article.10.215.pdf Expanding Global Trademark Regulation] ''Wake Forest Intellectual Property Law Journal'' 10(2) (2009): 215–239. Retrieved January 23, 2021.</ref>
  
−
Little argument over intellectual property (IP) would occur if it did not have a value for the owner. The principle of valuing IP is to determine the future income associated with its ownership ([[Special:Booksources/0471362816|Smith&Parr: ''Valuation of Intellectual Property and Intangible Assets'', 3rd Edition, Wiley 2000]]). Note that the value of IP is independent of its cost. The creation of a musical composition, invention, valuable software may have cost little, and can generate a very high income. Profit margins from IP are typically much higher than profit margins from manufacturing of tangible goods.  
+
In terms of scope, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms, usually plants.<ref>Jake Mace, [http://ipwire.com/stories/patentability-living-organisms/ Can a living organism be patented? The quick answer is “sometimes.”] ''IP Wire'', July 31, 2017. Retrieved January 23, 2021. </ref>
  
−
Determination of future income requires estimating the income due to the IP in each of all future years over its life; i.e., the amount sold and the net income per unit after routine sales costs are deducted. If the IP is used internally, then the savings due to owning it can be similarly estimated. The risk that intellectual property becomes obsolete is high, and reduces the current value. Without risk, future income is discounted by using a stable [[discount rate]], in the U.S. by using the Federal [[Treasury Note]] rate for the period. Risks include unexpected competition, unauthorized copying, patent breaches or invalidation, and loss of trade secrets. With such risks, discount rates increase, based on the expected [[Beta coefficient]]. With high discount rates, sales that occur far in the future have little effect, simplifying the determination of the net current value of the included IP.
+
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. Laws such as the [[Digital Millennium Copyright Act]] (DMCA) have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. This can hinder legal uses, affecting [[public domain]] works, [[limitations and exceptions to copyright]], or uses allowed by the copyright holder. Some [[copyleft]] licenses, like [[GNU GPL 3]], are designed to counter that.<ref>Brett Smith, [https://www.gnu.org/licenses/quick-guide-gplv3.en.html A Quick Guide to GPLv3] ''GNU Operating System''. Retrieved January 23, 2021. </ref>
  
−
When the items being valued contain multiple IP components then the proportion and life of each component must be determined. That case exists in the small, as for [[software]] that receives updates throughout the future, and in the large, for [[company (law)|companies]] that vend many products. [[Shareholder]]s of public companies in effect estimate the aggregate IP of a company, providing a [[market capitalization]] through the price they are willing to pay for shares, which is in effect the sum of the [[book value]] and the IP owned by the company.
+
Intellectual property law has also been criticized for not recognizing new forms of art such as remixes, [[Anime music video|anime music videos]] and others, which are derivative works by combining or editing existing materials to produce a new creative work or product. The creation of such works technically constitutes violations of copyright law, or are otherwise subject to unnecessary burdens and limitations which prevent the creators from fully expressing themselves.<ref>Dariusz Jemielniak and Aleksandra Przegalinska, ''Collaborative Society'' (The MIT Press, 2020, ISBN 978-0262537919).</ref>
  
−
[[U.S. generally accepted accounting principles]] (GAAP) do not allow the listing on corporate books of IP, making it hard for investors to be rational about share prices. IP is generated mainly through research, development, and advertising (IP generating expenses or IGE), making it hard to assess the effectiveness of IGE. Companies participating in the [[knowledge economy]] typically have a [[market capitalization]] which is a large factor greater than their [[book value]], the sum of their tangible assets and cash. Only when a company has been purchased will the purchased IP briefly appear on the books as [[goodwill]].
+
== Notes ==
 +
<references/>
  
−
==See also==
+
== References ==
−
*[[Agreement on Trade-Related Aspects of Intellectual Property Rights]] (TRIPS)
 
−
*[[Copynorm]]
 
−
*[[The Disneyland Memorial Orgy|Disneyland Memorial Orgy]]
 
−
*[[Doha Declaration]]
 
−
*[[Directive on the enforcement of intellectual property rights|EU Directive on the enforcement of intellectual property rights]]
 
−
*[[Fair use]]
 
−
*[[Legal aspects of computing]]
 
−
*[[Intellectual capital]]
 
−
*[[Intellectual Freedom Movement]]
 
−
*[[Intellectual property education]]
 
−
*[[Intellectual property in the People's Republic of China]]
 
−
*[[Intellectual property organization]]
 
−
*[[Intellectual Property Owners Association]] (ipo) [http://www.ipo.org/]
 
−
*[[Intellectual rights]]
 
−
*[[International Association for the Protection of Industrial Property]] (AIPPI)
 
−
*[[International Federation of Intellectual Property Attorneys]] (FICPI)
 
−
*[[International Intellectual Property Alliance]] (IIPA)
 
−
*[[International Union for the Protection of New Varieties of Plants]] (UPOV)
 
−
*[[Parallel import]]
 
−
*[[Paris Convention for the Protection of Industrial Property]]
 
−
*[[Personal property]]
 
−
*[[Philosophy of copyright]]
 
−
*[[Real property]]
 
−
*[[Reverse engineering]]
 
−
*[[Software patent]]
 
−
*[[World Intellectual Property Day]] ([[April 26]])
 
  
−
===Types of intellectual property===
+
* Bettig, Ronald V. ''Copyrighting Culture: The Political Economy of Intellectual Property''. Routledge, 1996. ISBN 978-0813333045
−
*[[Copyright]]
+
* Brenkert, George G., and Tom L. Beauchamp (eds.). ''The Oxford Handbook of Business Ethics''. Oxford University Press, 2012. ISBN 978-0199916221
−
*[[Geographical indication]]
+
* Burk, Dan L., and Mark A. Lemley. ''The Patent Crisis and How the Courts Can Solve It''. University of Chicago Press, 2009. ISBN 978-0226080611
−
*[[Industrial design rights]]
+
* Goldstein, Paul, and R. Anthony Reese. ''Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property''. Foundation Press, 2010. ISBN 978-1599417899
−
*[[Integrated circuit layout]]
+
* Greenhalgh, Christine, and Mark Rogers. ''Innovation, Intellectual Property, and Economic Growth.'' New Jersey: Princeton University Press, 2010. ISBN 978-0691137988
−
*[[Moral rights]]
+
* Griffiths, Ralph. ''The Monthly Review, Or, Literary Journal; Volume 61''. Wentworth Press, 2019. ISBN 978-1012313951
−
*[[Patent]]
+
* Hahn, Robert W. ''Intellectual Property Rights in Frontier Industries: Software and Biotechnology''. AEI Press, 2005. ISBN 978-0844771915
−
*[[Personality rights]]
+
* Jemielniak, Dariusz, and Aleksandra Przegalinska. ''Collaborative Society''. The MIT Press, 2020. ISBN 978-0262537919
−
*[[Plant breeders' rights]]
+
* Li, Xuan, and Carlos M. Correa (eds.). ''Intellectual Property Enforcement: International Perspectives''. Edward Elgar Pub, 2009. ISBN 978-1848446526
−
*[[Trade dress]]
+
* Lindberg, Van. ''Intellectual Property and Open Source: A Practical Guide to Protecting Code''. O'Reilly Books, 2008. ISBN 978-0596517960
−
*[[Trademark]]
+
* Menell, Peter S., Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh. ''Intellectual Property in the New Technological Age''. Clause 8 Publishing, 2020. ISBN 978-1945555152
−
*[[Trade secret]]
+
* Miller, Arthur Raphael, and Michael H. Davis. ''Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell''. West Academic Publishing, 2012. ISBN 978-0314278340
−
 
+
* Nion, Alfred. ''Droits civils des auteurs, artistes et inventeurs'' (Civil rights of authors, artists and inventors). HardPress Publishing, 2019. ISBN 978-0371209462
−
==Bibliography==
+
* Perelman, Michael. ''Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity''. Palgrave Macmillan, 2004. ISBN 978-1403967138
−
*Arthur Raphael Miller, Michael H. Davis, ''Intellectual Property: Patents, Trademarks, and Copyright'', West Wadsworth; 3rd edition, [[2000]], ISBN 0314235191 (textbook particularly covering copyright and patent law)
+
* Rand, Ayn. ''Capitalism: The Unknown Ideal''. Signet, 1986. ISBN 978-0451147950
−
*Stephan Kinsella, "Against Intellectual Property", ''Journal of Libertarian Studies'', Vol. 15, No. 1, pp. 1-53, 2001. Available in .PDF [http://www.mises.org/journals/jls/15_2/15_2_1.pdf here] (Note: though the author concludes that "[Intellectual property], at least in the form of patent and copyright, cannot be justified," the paper itself is copyrighted by its publisher.)
+
* Reisman, George. ''Capitalism: A Complete & Integrated Understanding of the Nature & Value of Human Economic Life''. TJS Books, 2020. ISBN 978-1931089654
−
*Michael Perelman, ''Steal This Idea: Intellectual Property Rights and the Corporate Confiscation of Creativity'', Palgrave Macmillan, [[2002]], ISBN 0312294085, (a critical discussion of some of the social, scientific and cultural impacts of recent intellectual property developments)
+
* Schechter, Roger E., and John R. Thomas. ''Intellectual Property: The Law of Copyrights, Patents and Trademarks''. West Academic Publishing, 2003. ISBN 978-0314065995
−
*Roger E. Schechter, John R. Thomas, ''Intellectual Property: The Law of Copyrights, Patents and Trademarks'', West Wadsworth, [[2003]], ISBN 0314065997  (textbook)
+
* Sherman, Brad, and Lionel Bently. ''The Making of Modern Intellectual Property Law''. Cambridge University Press, 1999. ISBN 978-0521563635
 +
* Spinello, Richard A., and Maria Bottis. ''A Defense of Intellectual Property Rights''. Edward Elgar Pub, 2009. ISBN 978-1847203953
 +
* Spooner, Lysander. ''The Law of Intellectual Property''. Anodos Books, 2018. ISBN 978-1725719620
 +
* Stokes, Simon. ''Art and Copyright''. Hart Publishing, 2001. ISBN 978-1841132259
 +
* Vaidhyanathan, Siva. ''The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System''. New York: Basic Books, 2005. ISBN 978-0465089857
 +
* Yu, Peter K. ''Intellectual Property and Information Wealth''. Praeger, 2006. ISBN 978-0275988821
  
 
==External links==
 
==External links==
−
*Articles, Papers, and Interviews
+
All links retrieved January 23, 2021.
−
** [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=582602 Property, Intellectual Property, and Free Riding, August 2004] by Mark A. Lemley Stanford University - School of Law
+
* [https://www.wipo.int/about-ip/en/ What is Intellectual Property?] ''WIPO''
−
** Speech by [[Richard Stallman]]: [http://www.cl.cam.ac.uk/~mgk25/stallman-patents.html Software patents ? Obstacles to software development] - it starts about IP and the problems it causes to talk or think using IP.
+
* [https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf Understanding Copyright and Related Rights] ''WIPO''
−
** [http://www.gnu.org/philosophy/words-to-avoid.html#IntellectualProperty Confusing words to avoid ]. [[FSF]] page that identifies ''intellectual property'' as a confusing term wrt talking about [[free software]].
+
* [https://www.wipo.int/edocs/pubdocs/en/wipo_pub_895_2016.pdf Understanding Industrial Property] ''WIPO''
−
** [http://www.gnu.org/philosophy/not-ipr.xhtml Why the Term 'Intellectual Property' is a seductive mirage] - an essay by [[Richard Stallman]]. Originally published on [[Newsforge]], see [http://www.newsforge.com/article.pl?sid=04/10/27/189204 commentary by Newsforge readers].
+
* [https://www.law.cornell.edu/wex/intellectual_property Intellectual Property] ''Legal Information Institute''
−
** [http://articles.pawlo.com/grep02.html Long Paper: Efficiency, Innovation, and Transparency - The Future of Intellectual Property Rights ]
+
* [https://www.investopedia.com/terms/i/intellectualproperty.asp Intellectual Property] ''Investopedia''
−
** [http://levine.sscnet.ucla.edu/general/intellectual/intellectual.htm ''Economic and Game Theory Intellectual Property Page''] - by Michele Boldrin and David K. Levine
+
* [https://www.legalzoom.com/articles/what-is-intellectual-property What Is Intellectual Property?] ''LegalZoom''
−
** [http://www.eff.org/~barlow/EconomyOfIdeas.html ''The Economy of Ideas: Selling Wine Without Bottles on the Global Net''] by [[John Perry Barlow]]
 
−
** [http://eyeteeth.blogspot.com/2003_04_20_eyeteeth_archive.html#92977561 The Anarchist in the Library: Discussing Cultural Democracy with Siva Vaidhyanathan]
 
−
** [http://www.qmipri.org] ''Queen Mary Intellectual Property Research Institute, University of London''
 
−
** Georg Jakob's short [http://wiki.ael.be/uploads/ipenf_comments.html Paper on the Enforcement of Intellectual Property Rights in Europe]([http://www.rechtsprobleme.at/doks/ipenf_comments-jakob.pdf pdf])
 
−
 
 
−
*Miscellaneous IP sites
 
−
** [http://www.researchoninnovation.org/ Research on Innovation]
 
−
** [http://www.imobissimo.com/ Research on property]
 
−
** [http://tc.eserver.org/dir/Intellectual-Property EServer TC Library: Intellectual Property]
 
−
** [http://www.ipwatchdog.com IP Watch Dog] IP site by Gene Quinn, US patent attorney
 
−
** [http://www.iusmentis.com/news/ Ius Mentis] Updated IP news feed
 
−
 
 
−
*Lobbying organisations (in favour)
 
−
** [http://www.eucommittee.be/IssuesPriorities/ip.htm AmCham EU - American Chamber of Commerce to the European Union] ''"Committed to a Competitive and Sustainable Europe"''
 
−
** [http://www.gbde.org/ipr/ GBDe - Global Business Dialogue on electronic commerce] - The IPR working group is chaired the Chairman and CEO of [[The Walt Disney Company]], and the Chairman and CEO of [[Bertelsmann AG]]. On Technological Protection Measures: ''"However, it is acknowledged that technology alone is not sufficient to protect copyright works for unauthorized reproduction and distribution. Legal safeguards, such as those required by the [[WIPO]] treaties must also be in place."'' -> [[digital rights management|DRM]], [[DMCA]] and so on.
 
−
** [http://www.esmoz.com]
 
−
** http://www.eicta.org/levies/technical_solutions/drm.html (see also: [[EICTA|European Information, Communications and Consumer Electronics Technology Industry Associations]])
 
  
−
*Lobbying organisations (critical of some rights which IP is used to refer to)
 
−
** [http://www.eldis.org/ipr/ ELDIS - gateway to information on development issues]
 
−
** [[Free Software Foundation]], [http://www.edri.org/ EDRi (European Digital Rights)], [http://www.fipr.org FIPR], [[FFII]] (many more)
 
−
** http://ipjustice.org
 
−
** [http://www.nnm-ev.de/ Netzwerk Neue Medien / Network New Media]
 
−
** [http://www.ueapme.org/EN/policy_legal_intellectual.shtml UEAPME]
 
  
−
[[Category:Intellectual property| ]]
+
[[Category:Social sciences]]
 +
[[Category:Law]]
 +
[[Category:Library and information science]]
  
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[[da:IP-rettigheder]]
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{{credits|Intellectual_property|991124155}}
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[[de:Geistiges Eigentum]]
 
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[[eo:Intelekta propra&#309;o]]
 
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[[fr:Propriété intellectuelle]]
 
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[[he:&#1511;&#1504;&#1497;&#1497;&#1503; &#1512;&#1493;&#1495;&#1504;&#1497;]]
 
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[[nl:Intellectueel eigendom]]
 
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[[ja:&#30693;&#30340;&#36001;&#29987;&#27177;]]
 
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[[pl:W&#322;asno&#347;&#263; intelektualna]]
 
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Latest revision as of 22:55, 5 February 2023

Scales of justice
Intellectual property law
 
Rights
Authors' rights · Intellectual property · Copyright
Database right · Indigenous intellectual property
Industrial design rights · Geographical indication
Patent · Related rights · Trademark
Trade secret · Utility model
Related topics
Fair use · Public domain
Trade name


Intellectual property (IP) refers to the intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets.

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods, which benefits society as a whole, or the "public good," while still assigning rights to their creators. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. However, the intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Balancing rights so that they are strong enough to encourage the creation of intellectual goods, but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.

Definition

According to the World Intellectual Property Organization (WIPO):

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.[1]

The World Trade Organization (WTO) defines intellectual property as follows:

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.[2]

History

The Statute of Anne came into force in 1710

The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively, firmly establishing the concept of intellectual property.[3]

"Literary property" was the term predominantly used in the British legal debates of the 1760s and 1770s over the extent to which authors and publishers of works also had rights deriving from the common law of property (Millar v Taylor (1769), Hinton v Donaldson (1773), Donaldson v Becket (1774)). The first known use of the term "intellectual property" dates to this time, when a piece published in the Monthly Review in 1769 used the phrase: "What a niggard this Doctor is of his own, and how profuse he is of other people's intellectual property." [4] The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays: "New-England Association in favour of Inventors and Discoverers, and particularly for the Protection of intellectual Property."[5]

The term 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." 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."[6] In Europe, French author Alfred Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.[7]

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 organization 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 legal scholar Mark 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 there until passage of the Bayh-Dole Act in 1980.[8]

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.[9]

Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.[8] This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.[10]

According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift."[11] Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO's activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles. However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.[11]

Rights

There are many types of intellectual property. The WTO notes two main areas: (1) Copyright and rights related to copyright; and (2) Industrial property.[2]

The European Union (EU) characterizes intellectual property into two types as follows:

Intellectual property includes all exclusive rights to intellectual creations. It encompasses two types of rights: industrial property, which includes inventions (patents), trademarks, industrial designs and models and designations of origin, and copyright, which includes artistic and literary property.[12]

Patents

Main article: Patent

A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention:

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.[13]

An invention is a solution to a specific technological problem, which may be a product or a process, and generally has to fulfill these requirements: it has to be new, not obvious, there needs to be an industrial applicability, its subject matter must be accepted as “patentable” under law, and the invention must be disclosed in an application such that it can be replicated by a person with an ordinary level of skill in the relevant technical field.[14]

Copyright

Main article: Copyright

A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works."[15] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[16]

Industrial design rights

An industrial design right (sometimes called "design right" or "design patent") protects the visual design of objects that are not purely utilitarian: An industrial design constitutes the ornamental aspect of an article.[17]

An industrial design consists of the creation of a shape, configuration, or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity, or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.

Plant varieties

Plant breeders' rights or plant variety rights (PVR) are a form of intellectual property used to protect unique plant varieties. Plant varieties awarded PVR status are freely available to others for use in future breeding programs, and plant breeders collect royalties on the production and sale of seed of their protected varieties. In this way, the PVR system both delivers protection and stimulates further innovation in plant breeding.

To qualify for Plant Variety Rights, a new variety must undergo official tests to determine whether it is distinct (clearly distinguishable from any other existing variety by one or more characteristics), uniform (individual plants must be sufficiently uniform in a range of key characteristics), and stable (the plant variety reproduces true to type from one generation to the next).[18]

Trademarks

A trademark is a recognizable word, phrase, symbol, and/or design that distinguishes products or services of a particular trader from similar products or services of other traders.[19]

A trade mark is a sign which can distinguish your goods and services from those of your competitors (you may refer to your trade mark as your “brand”). ... In other words they can be recognised as signs that differentiates your goods or service as different from someone else’s.[20]

Trade dress

Trade dress is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[21]

Trade secrets

Main article: 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 and customers. Two of the most famous trade secrets in the United States, for example, are the recipe for Coca Cola and Colonel Harland Sanders' handwritten Original Recipe(R) for Kentucky Fried Chicken.

There is no formal government protection granted; each business must take measures to guard its own trade secrets. A company can protect its confidential information through Non-disclosure agreements (NDA) and non-compete clauses for employees, and confidentiality agreements for vendors or third parties in business negotiations. The protection of a trade secret is perpetual and does not expire after a specific length of time, as a patent does. The lack of formal protection, however, means that a third party is not prevented from independently duplicating and using the secret information once it is discovered.

Motivation and justification

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.[22]

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers.[22] To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation.[22] By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work.

Other developments in intellectual property law, such as the America Invents Act, stress international harmonization. There has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility.[23]

Financial incentive

Exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property. The United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads:

The Congress shall have power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries."[24]

Economic growth

These economic incentives are expected to stimulate innovation and contribute to technological progress, leading to economic growth.[25]

The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally."[26]

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."[27]

Morality

In the nineteenth century, Lysander Spooner argued:

that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.[28]

If one believes that intellectual property is no different from material property, then it follows that the same moral rights that govern material property apply to intellectual property. For example, Ayn Rand argued 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.[29]

According to Article 27 of the Universal Declaration of Human Rights, "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."[30] Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property.

The arguments that justify intellectual property rights fall into three major categories: Lockeans argue that intellectual property is justified based on deservedness and hard work; Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation; and personality theorists regard intellectual property as an extension of an individual.[31]

  1. Natural Rights/Justice Argument: This argument is based on John Locke's idea that a person has a natural right over the labor and products which are produced by their body. Appropriating these products is viewed as unjust. Although Locke never explicitly stated that this natural right applied to products of the mind,[32] it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.[33]
  2. Utilitarian-Pragmatic Argument: According to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Innovation and invention in nineteenth century America has been attributed to the development of the patent system.[33] By providing innovators with "durable and tangible return on their investment of time, labor, and other resources," intellectual property rights promote public welfare by encouraging the "creation, production, and distribution of intellectual works."[34]
  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," which leads to the understanding that ideas are an "extension of oneself and of one's personality."[33] Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered.

Infringement, misappropriation, and enforcement

Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.

Patent infringement

Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention.

There is safe harbor in many jurisdictions to use a patented invention for research. However, safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.[35]

Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling, or importing the patented item, while people in other countries may be free to exploit the patented invention in their country.

In general, patent infringement cases are handled under civil law in the United States, but infringement in criminal law may be included in some jurisdictions.

Copyright infringement

Copyright infringement (colloquially referred to as "piracy") is the unlawful use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display, or perform the protected work, or to make derivative works.[36] The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned.

Enforcement of copyright is generally the responsibility of the copyright holder.[37]

There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer," uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark.

In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

Trade secret misappropriation

Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available. Acts of industrial espionage are generally illegal in their own right under the relevant governing laws, and penalties can be harsh.

In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. The United States also has federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. § 1831), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes.

Criticisms

A major issue with regard to intellectual property is the question of whether it can be treated as "property" at all. The words of Thomas Jefferson written in a letter to Isaac McPherson on August 13, 1813, are pertinent:

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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.[38]

Such distinctions between physical (tangible) and intellectual property are undeniable, and recognized by the framers of intellectual property law, whose purpose was to promote advances in science and the arts, while protecting the inventors and creators of their work from piracy. Thus, intellectual property protection includes term limits:

After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.[39]

Term limits notwithstanding, critics continue to reject the implied close connection with tangible property that intellectual property law guarantees. Their primary complaint lies with the term itself.

The term "intellectual property"

Criticism of the term "intellectual property" ranges from discussing its vagueness and abstract overreach to direct contention concerning the semantic validity of using words like "property" and "rights" which lead to "the idea that it's just like regular property."[40]

Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, have criticized this 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).[39]

Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists, it can be re-used and duplicated indefinitely without such re-use diminishing the original:

When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be.[41]

The term "intellectual property," by including the word "property" implies scarcity, which may not be applicable to ideas.[42]

Alternative terms

Alternative terms, such as "Intellectual Monopoly," "Intellectual Privilege," "Imaginary Property," and others, have been suggested to replace "Intellectual Property."[40] "Imaginary Property" does not solve the problem of the implied connection to real property given that it continues to use the term; and the nature of intellectual property defined as :creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" is hardly imaginary.

"Intellectual Privilege" loses the term "property" but adds the term "privilege," for reasons which are not immediately apparent, especially when applied to laws of protection.

Economists Michele Boldrin and David K. Levine support the use of the term "intellectual monopoly" as a more appropriate and clear definition of the concept. They argue that rights to intellectual creations are very dissimilar from property rights, creating market monopolies rather than protecting the rights of the owner.[43]

For many, however, given the problems with the term, and the great differences among the areas to which it is applied, the conclusion is that it is better to use the specific terms, "copyright," or "patent," or "trademark," and so forth, rather than employing a general and misleading term.[41]

Overbroad intellectual property laws

In 2001 the United Nations Committee on Economic, Social and Cultural Rights concluded that intellectual property (IP) 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.[44]

Such ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug: "An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations."[45]

In 2004 the General Assembly of the World Intellectual Property Organization (WIPO) adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which calls on WIPO to "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself."[46]

Critics have also noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection." The typical argument for broad protection is as follows:

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.[8]

Boldrin and Levine have disputed this justification. Citing problems such as inflated prices of pharmaceuticals to satisfy the patent holders leading to patients being unable to pay for needed medication, as well young people's "pirating" of high priced musical recordings simply to enjoy a wide variety of music, they suggest that rather than encouraging innovation, the protection given by intellectual property laws hinders rather than helps the competitive free market by creating "intellectual monopolies.”[43]

Historical analysis supports the contention that intellectual property laws may harm innovation:

Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.[47]

Duration and scope

The duration and scope of intellectual property rights have also been the subject of discussion and criticism.

Arguments have been advanced that copyright should be renewable, or even have no term limits at all.[48] Changes in copyright law in the United States, such as the 1976 Copyright Act and the Sonny Bono Copyright Term Extension Act of 2008, eliminated the registration and notice requirements, and extended the duration of copyright. These changes increased the likelihood that of orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.[49]

International efforts to harmonize the definition of "trademark" have led to expansion in scope. For example, the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in 1994, formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark.[50]

In terms of scope, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms, usually plants.[51]

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. Laws such as the Digital Millennium Copyright Act (DMCA) have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright, or uses allowed by the copyright holder. Some copyleft licenses, like GNU GPL 3, are designed to counter that.[52]

Intellectual property law has also been criticized for not recognizing new forms of art such as remixes, anime music videos and others, which are derivative works by combining or editing existing materials to produce a new creative work or product. The creation of such works technically constitutes violations of copyright law, or are otherwise subject to unnecessary burdens and limitations which prevent the creators from fully expressing themselves.[53]

Notes

  1. ↑ What is Intellectual Property? World Intellectual Property Organization. Retrieved January 19, 2021.
  2. ↑ 2.0 2.1 What are intellectual property rights? World Trade Organization. Retrieved January 19, 2021.
  3. ↑ Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (Cambridge University Press, 1999, ISBN 978-0521563635).
  4. ↑ Ralph Griffiths, The Monthly Review, Or, Literary Journal; Volume 61 (Wentworth Press, 2019, ISBN 978-1012313951).
  5. ↑ Samuel Latham Mitchell and Edward Miller, Medical Repository Of Original Essays And Intelligence (1808), 303. Retrieved January 19, 2021.
  6. ↑ A Brief History of the Patent Law of the United States Ladas & Parry, May 7, 2014. Retrieved January 20, 2021.
  7. ↑ Alfred Nion, Droits civils des auteurs, artistes et inventeurs (Civil rights of authors, artists and inventors) (HardPress Publishing, 2019, ISBN 978-0371209462).
  8. ↑ 8.0 8.1 8.2 Mark Lemley, Property, Intellectual Property, and Free Riding Texas Law Review 83 (2005). Retrieved January 20, 2021.
  9. ↑ Adam Mossoff, Rethinking the Development of Patents: An Intellectual History, 1550–1800 Hastings Law Journal 52 (2001). Retrieved January 20, 2021.
  10. ↑ The Liquidity of Innovation The Economist, October 22, 2005. Retrieved January 20, 2021.
  11. ↑ 11.0 11.1 Jean-Frédéric Morin, Paradigm shift in the global IP regime: The agency of academics Review of International Political Economy 21(2) (2014): 275–309. Retrieved January 20, 2021.
  12. ↑ Intellectual, industrial and commercial property European Parliament. Retrieved January 19, 2021.
  13. ↑ What is a patent? WIPO. Retrieved January 21, 2021.
  14. ↑ Applying for patent protection WIPO. Retrieved January 21, 2021.
  15. ↑ Peter K. Yu, Intellectual Property and Information Wealth (Praeger, 2006, ISBN 978-0275988821).
  16. ↑ Simon Stokes, Art and Copyright (Hart Publishing, 2001, ISBN 978-1841132259).
  17. ↑ https://www.wipo.int/designs/en/ What is an industrial design?] WIPO. Retrieved January 21, 2021.
  18. ↑ Plant Variety Rights Retrieved January 21, 2021.
  19. ↑ Trademark, Patent, or Copyright? US Trademark and Patent Office. Retrieved January 21, 2021.
  20. ↑ Unacceptable trade marks Intellectual Property Office, May 16, 2014. Retrieved January 21, 2021.
  21. ↑ Peter S. Menell, Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh, Intellectual Property in the New Technological Age (Clause 8 Publishing, 2020, ISBN 978-1945555152).
  22. ↑ 22.0 22.1 22.2 Paul Goldstein and R. Anthony Reese, Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (Foundation Press, 2010, ISBN 978-1599417899).
  23. ↑ Paolo Davide Farah and Ricardo Tremolada, Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights Transnational Dispute Management 11(2) (March 2014). Retrieved January 21, 2021.
  24. ↑ U.S. Constitution Article I Section 8 Clause 8 Stanford University Libraries. Retrieved January 22, 2021.
  25. ↑ Rod Falvey, Neil Foster, and David Greenaway, Intellectual Property Rights and Economic Growth Review of Development Economics 10(4) (November 2006): 700-719. Retrieved January 21, 2021.
  26. ↑ Anti-Counterfeiting Trade Agreement Global Affairs Canada. Retrieved January 22, 2021.
  27. ↑ Measuring the Economic Impact of Intellectual Property Systems WIPO, July, 2007. Retrieved January 22, 2021.
  28. ↑ Lysander Spooner, The Law of Intellectual Property Anodos Books, 2018, ISBN 978-1725719620).
  29. ↑ Ayn Rand, Capitalism: The Unknown Ideal (Signet, 1986, ISBN 978-0451147950).
  30. ↑ The Universal Declaration of Human Rights United Nations.
  31. ↑ Intellectual Property Stanford Encyclopedia of Philosophy, October 10, 2018. Retrieved January 22, 2021.
  32. ↑ Ronald V. Bettig, "Critical Perspectives on the History and Philosophy of Copyright" in Copyrighting Culture: The Political Economy of Intellectual Property by Ronald V. Bettig (Routledge, 1996. ISBN 978-0813333045), 19–20.
  33. ↑ 33.0 33.1 33.2 Richard T. De George, "Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp (eds.) (Oxford, England: Oxford University Press, 2012, ISBN 978-0199916221), 415–418.
  34. ↑ Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights (Edward Elgar Pub, 2009, ISBN 978-1847203953).
  35. ↑ Alicia A. Russo and Jason Johnson, Research Use Exemptions to Patent Infringement for Drug Discovery and Development in the United States Cold Spring Harbor Perspectives in Medicine 5(2) (February 2015). Retrieved January 22, 2021.
  36. ↑ Darrell Panethiere, The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development e-Copyright Bulletin (April-June, 2005). Retrieved January 22, 2021.
  37. ↑ Xuan Li and Carlos M. Correa (eds.), Intellectual Property Enforcement: International Perspectives (Edward Elgar Pub, 2009, ISBN 978-1848446526).
  38. ↑ Thomas Jefferson to Isaac McPherson August 13, 1813. Retrieved January 23, 20201
  39. ↑ 39.0 39.1 Lawrence Lessig, Against perpetual copyright The Lessig Wiki. Retrieved January 23, 2021.
  40. ↑ 40.0 40.1 Mike Masnick, If Intellectual Property Is Neither Intellectual, Nor Property, What Is It? Tech Dirt, March 6, 2008. Retrieved January 23, 2021.
  41. ↑ 41.0 41.1 Richard Stallman, Words to Avoid (or Use with Care) Because They Are Loaded or Confusing GNU Operating System. Retrieved January 23, 2021.
  42. ↑ Stephan Kinsella, Against Intellectual Property Journal of Libertarian Studies 15(2) (Spring 2001):1–53. Retrieved January 23, 2021.
  43. ↑ 43.0 43.1 Michele Boldrin and David K. Levine, Against Intellectual Monopoly (Cambridge University Press, 2010, ISBN 978-0521127264).
  44. ↑ Human rights and intellectual property UN Committee on Economic Social and Cultural Rights, Geneva, November 12–30, 2001. retrieved January 23, 2021.
  45. ↑ Jorn Sonderholm, Ethical Issues Surrounding Intellectual Property Rights Philosophy Compass 5(12) (2010): 1107–1115. Retrieved January 23, 2021.
  46. ↑ Geneva Declaration on the Future of the World Intellectual Property Organization October 4, 2004. Retrieved January 23, 2021.
  47. ↑ Petra Moser, Patents and Innovation: Evidence from Economic History Journal of Economic Perspectives 27(1) (2013): 23–44. Retrieved January 23, 2021.
  48. ↑ Mark Helprin, A Great Idea Lives Forever. Shouldn't Its Copyright? The New York Times, May 20, 2007. Retrieved January 23, 2021.
  49. ↑ Library of Congress Copyright Office Docket No. 2012–12 Orphan Works and Mass Digitization Federal Register 77(204) (October 22, 2012): 64555–64561. Retrieved January 23, 2021. See page 64555 first column for international efforts and third column for description of the problem.
  50. ↑ Katherine Beckman and Christa Pletcher, Expanding Global Trademark Regulation Wake Forest Intellectual Property Law Journal 10(2) (2009): 215–239. Retrieved January 23, 2021.
  51. ↑ Jake Mace, Can a living organism be patented? The quick answer is “sometimes.” IP Wire, July 31, 2017. Retrieved January 23, 2021.
  52. ↑ Brett Smith, A Quick Guide to GPLv3 GNU Operating System. Retrieved January 23, 2021.
  53. ↑ Dariusz Jemielniak and Aleksandra Przegalinska, Collaborative Society (The MIT Press, 2020, ISBN 978-0262537919).

References
ISBN links support NWE through referral fees

  • Bettig, Ronald V. Copyrighting Culture: The Political Economy of Intellectual Property. Routledge, 1996. ISBN 978-0813333045
  • Brenkert, George G., and Tom L. Beauchamp (eds.). The Oxford Handbook of Business Ethics. Oxford University Press, 2012. ISBN 978-0199916221
  • Burk, Dan L., and Mark A. Lemley. The Patent Crisis and How the Courts Can Solve It. University of Chicago Press, 2009. ISBN 978-0226080611
  • Goldstein, Paul, and R. Anthony Reese. Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property. Foundation Press, 2010. ISBN 978-1599417899
  • Greenhalgh, Christine, and Mark Rogers. Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press, 2010. ISBN 978-0691137988
  • Griffiths, Ralph. The Monthly Review, Or, Literary Journal; Volume 61. Wentworth Press, 2019. ISBN 978-1012313951
  • Hahn, Robert W. Intellectual Property Rights in Frontier Industries: Software and Biotechnology. AEI Press, 2005. ISBN 978-0844771915
  • Jemielniak, Dariusz, and Aleksandra Przegalinska. Collaborative Society. The MIT Press, 2020. ISBN 978-0262537919
  • Li, Xuan, and Carlos M. Correa (eds.). Intellectual Property Enforcement: International Perspectives. Edward Elgar Pub, 2009. ISBN 978-1848446526
  • Lindberg, Van. Intellectual Property and Open Source: A Practical Guide to Protecting Code. O'Reilly Books, 2008. ISBN 978-0596517960
  • Menell, Peter S., Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh. Intellectual Property in the New Technological Age. Clause 8 Publishing, 2020. ISBN 978-1945555152
  • Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell. West Academic Publishing, 2012. ISBN 978-0314278340
  • Nion, Alfred. Droits civils des auteurs, artistes et inventeurs (Civil rights of authors, artists and inventors). HardPress Publishing, 2019. ISBN 978-0371209462
  • Perelman, Michael. Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity. Palgrave Macmillan, 2004. ISBN 978-1403967138
  • Rand, Ayn. Capitalism: The Unknown Ideal. Signet, 1986. ISBN 978-0451147950
  • Reisman, George. Capitalism: A Complete & Integrated Understanding of the Nature & Value of Human Economic Life. TJS Books, 2020. ISBN 978-1931089654
  • Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. West Academic Publishing, 2003. ISBN 978-0314065995
  • Sherman, Brad, and Lionel Bently. The Making of Modern Intellectual Property Law. Cambridge University Press, 1999. ISBN 978-0521563635
  • Spinello, Richard A., and Maria Bottis. A Defense of Intellectual Property Rights. Edward Elgar Pub, 2009. ISBN 978-1847203953
  • Spooner, Lysander. The Law of Intellectual Property. Anodos Books, 2018. ISBN 978-1725719620
  • Stokes, Simon. Art and Copyright. Hart Publishing, 2001. ISBN 978-1841132259
  • Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. New York: Basic Books, 2005. ISBN 978-0465089857
  • Yu, Peter K. Intellectual Property and Information Wealth. Praeger, 2006. ISBN 978-0275988821

External links

All links retrieved January 23, 2021.

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