Examining Non-Tangible Property Rights

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.

Trademark

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).

Patent

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 in a commercial context. One of the most familiar areas of patented material going off-patent is when prescription drug medication goes off-patent and generic versions of the drug can be manufactured by different companies. The prescription drug example gives a good explanation of the reasons behind patent law. The developer retains the exclusive right to produce the medicine for a sufficient time period to encourage research and innovation, but the product does become available at a lower cost to consumers within a relatively short period of time.

Patents do not automatically come with invention, with separates the concept of the patent from the concept of the copyright. On the contrary, inventors much apply for a patent. This is due to the requirement that patents require an actual innovation. Furthermore, some things cannot be patented. "In many countries, scientific theories, mathematical methods, plant or animal varieties, discoveries of natural substances, commercial methods or methods of medical treatment (as opposed to medical products) are not generally patentable" (WIPO, Unk.). A person applying for an application must describe the invention clearly and in sufficient detail that someone in the field could reproduce or use the invention (WIPO, Unk.). The application may contain visual material to support the claim. Furthermore, patent claims can be contested by third parties who are either claiming ownership of the innovation or challenging whether it is the type of innovation that can actually be protected by patent.

One of the difficulties in property law is that there has been a shift in the legal climate surrounding patent law. Traditionally, judges were somewhat reluctant to challenge patent decisions because they did not have the scientific basis to judge the merit of some of the claims in the patents. However, recently the Supreme Court has taken more of an activist approach in the area of patent law. The Court has narrowed patent protection and has looked at more a more holistic approach, rejecting its former formalistic approach (Lee, 2010). The natural consequence of this is that judges will be interpreting technology to determine patent rights, which will require a level of judicial interaction with patent rights that may be detrimental to creators depending on the level of skill and knowledge of judges. Furthermore, the ability to transmit patent rights to purchasers or other secondary parties presents a challenge because there is a category of purchasers that provide no meaningful additions to patents, simply purchasing them and then selling them for a profit. There is some suggestion that the law may be evolving to differentiate those type of secondary purchaser from secondary purchasers that increase innovation, which might results in differential treatment of different purchasers in patent law. This makes intellectual property an interesting part of the law, because deciphering those cases involves a real knowledge of the underlying subject matter and not just the applicable laws.

Other Types of Intellectual Property

There are several other types of intellectual property, which are not as widespread or well-known as copyrights, patents, and trademarks. These include: industrial design and geographical indication. Industrial design refers to the aesthetic aspects of an item, whether two or three dimensional. Industrial design can apply to a wide variety of products, but to get protection as an industrial design, the design has to be new and it cannot be a functional aspect of the machine, which would qualify for patent protection, instead. Geographical indication is a sign on a product indicating that a product comes from a particular geographic region. These indicators are familiar on agricultural products, but may also be used to indicate a certain type of craftsmanship associated with a particular geographical region. While this may seem like a new type of intellectual property, it has long been used on wine to indicate grapes grown in a particular region. It is becoming increasingly popular and has a great monetary value in the coffee market (Teuber, 2010). What is interesting is that this economic value seems to be related to the willingness to accept this geographical indication as a type of intellectual property; if it does not add any value or distinction to the product, it seems unlikely that it would be considered a form of protected intellectual property.