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Intellectual property can be a difficult concept to define because, at its heart, it describes property rights to intangible things, such as creations of the mind. Because this involves concepts rather than physical property, for years the courts and legal system did not extend property protection to these types of creations. This can be further complicated by the fact that some intellectual property has a physical, or tangible, component. For example, books may be in a physical format, movies may come on a DVD, and music may be on a CD. When one purchases those objects, one gets the object, itself, but the meaningful part of the purchase is the content, which is what gives it value. Intellectual property goes beyond artistic creations, it also encompasses other types of creative or innovative ideas, such as scientific processes, trade names, or logos. Because the scope of intellectual property is so broad, it can be helpful to consider it as being part of two broader categories: industrial property and copyright protected works (WIPO, Unk.). Copyright protected works generally refer to those things that people in the general public would consider artistic endeavors such as literary works, movies, plays, music, works of art, television broadcasts, or radio broadcasts (WIPO, Unk.). Industrial property can be thought of as the type of intellectual considerations that facilitate business and industry and includes trademarks, inventions, processes that might have patent protection, and sometimes work-product.
Like any other type of property, intellectual property comes with a set of property rights for the owner of the property, although these rights can be difficult to understand because of the nature of the property and the inherent difficulties in establishing ownership in a concept or idea. Basically, intellectual property rights exist to provide the creator the right to benefit from intellectual property. This right is considered a basic and fundamental human right that is described in Article 27 of the Universal Declaration of Human Rights (WIPO, Unk).
Furthermore, like other property rights, the intellectual property owner has the right to sell or lease his or her interest in his property rights, or profit or other consideration, to a third party. However, more so than most tangible property conveyances, the owner of intellectual property can limit how the purchaser uses the property. For example, an author who writes a book can sell the rights to that book to a publisher, giving the publisher an exclusive right to publish and distribute the book in a certain market for a certain time period. The publisher then sells individual books to individual purchasers. The purchasers get the right to read that one book and even to resell that book, but do not get any rights to the content of the book. For example, a book purchaser does not have the right to then republish and distribute the contents of the book. Moreover, all of this can happen without the author losing rights of ownership in the book, though the rights to distribution would be limited by the terms of the publishing contract. This type of convoluted distribution of property rights is very commonplace in the copyright scenario and helps highlight some of the flexibility that is inherent in the realm of intellectual property.
In fact, copyright may be the type of intellectual property that most people understand. Copyright law protects literary and artistic creations for their creators. However, while copyright may be something that people now take for granted, artistic works have not always had copyright protection. Moreover, the field of copyright law has always been challenged to keep pace with artistic innovation. "The development of copyright law has been a continuing response to the challenges posed by new technologies that reproduce and distribute human expression" (Leaffer, 2011). The most basic element of copyright protection is over the work itself. "A closely associated field is 'related rights' or rights related to copyright that encompass rights similar or identical to those of copyright, although sometimes more limited and of shorter duration" (WIPO, Unk). The related rights may extend to those who produce or otherwise distribute copyrighted works.
Copyright protection extends to a broad body of artistic works, and, as different artistic genres develop they may also be eligible for copyright protection. For example, books, plays, newspapers, paintings, and sculptures have traditionally been eligible for copyright protection. What many people may not realize is that choreography is also protected by copyright. Films, television, and radio are newer, though, by now, well-established mediums for copyright protection.
An emerging area of protection is computer programs and databases, an area that has grown exponentially with the use of smartphones and other devices that have resulted in the proliferation of a number of applications. "An environment characterized by rapid technological change creates two conditions that determine the direction and evolution of copyright law: legal delay and legal uncertainty" (Depoorter, 2009). There is no question that the legal community did not respond in a timely manner to some of the copyright challenges that the advent of the internet and related technologies brought to creators, not only those who create computer programs, but also to those who have created other works that are traditionally copyright protected, but which can be disseminated far easier with the internet and related technology.
Like copyrights, almost everyone is familiar with trademarks, because people see them in their everyday lives. Most people can recognize the copyrights of well-known brands and those copyrights have some associated traits or characteristics that inform the brand of that company. "A trademark is a distinctive sign that identifies certain goods or services produced or provided by an individual or a company" (WIPO, Unk.). Once a company has established a trademark, the trademark owners have the exclusive right to use that mark to identify goods or services. This protects consumers because they know that if they are purchasing a good or service identified with a particular mark, they are purchasing the quality that they associate with that brand.
Trademarks are interesting because they can encompass a wide array of different types of symbols. For example, a trademark can be a name, including a brand name. Trademarks can also be a symbol. However, trademarks can also encompass things like packaging shape and color. Furthermore, trademarks are not always brand-specific. For example, "collective marks are owned by an association whose members use them to indicate products with a certain level of quality and who agree to adhere to specific requirements set by the association (WIPO, Unk). Therefore, it is important to keep in mind that trademarks are not limited to specific companies, but can offer broader protections.
Trademark protection differs from other types of intellectual property in a few key ways. First, while almost every country recognizes trademark protection, that protection is generally limited to trademarks registered within that country. Moreover, some countries are known for ignoring trademark protections, while others are known for rigorous protection of trademarks. Furthermore, trademark protection has a different duration than other types of intellectual property. While trademarks can, at least theoretically, be continued indefinitely; "the rights to a trademark can be lost through abandonment, improper licensing or assignment, or genericity" (Fisher, 2003). Moreover, abandonment is relatively easy to demonstrate; "non-use for three consecutive years is prima facie evidence of abandonment" (Fisher, 2003).
One of the most basic forms of industrial intellectual property rights is the patent. Patents are based on innovation; therefore, while patent-protected information can build upon something that is already in existence, it must include an element of innovation, otherwise known as an invention. Patents are granted for "a product or process that provides a new way of doing something, or that offers a new technical solution to a problem" (WIPO, Unk.). The question of innovation can be complicated and is specific to genre, but involves "whether a person having ordinary skill in the art could have made it at the time of the prior disclosure" (Seymore, 2011). If the answer to that question is yes, then there is no innovation, and no patent should issue.
Patents are interesting, however, because they are generally time-limited, offering their inventors protection but not offering the type of ownership protection that can last for multiple generations. In this way, patents encourage innovation by ensuring that inventors can profit from their works, but also encourage innovation by allowing people to build upon existing ideas. A patent holder has the right to determine who gets to use their inventions; this is known as a license and the patent holder retains the rights to dictate the terms of that usage. Patent holder may also sell their ownership interest in their patents outright to a third party, which means that the buyer now owns all rights to the patented material. The patent owner has the exclusive right to determine who gets to use the patented material, particularly in a commercial context, for the duration of the patent. When patented material goes off-patent, it enters into the public domain and others can use it…[continue]
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