Intellectual Property Law: Copyright, Trademark, and Patent

Introduction to Intellectual Property

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, the courts and legal system did not extend property protection to these types of creations for many years. The concept is further complicated by the fact that some intellectual property has a physical, or tangible, component. For example, books may exist in a physical format, movies may come on a DVD, and music may be distributed on a CD. When one purchases those objects, one acquires 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, and logos. Because the scope of intellectual property is so broad, it is helpful to consider it as belonging to two broader categories: industrial property and copyright-protected works (WIPO, n.d.). 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, and radio broadcasts (WIPO, n.d.). Industrial property can be thought of as the type of intellectual considerations that facilitate business and industry, and includes trademarks, inventions, processes that may 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, 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. Essentially, intellectual property rights exist to provide the creator the right to benefit from their intellectual property. This right is considered a basic and fundamental human right, described in Article 27 of the Universal Declaration of Human Rights (WIPO, n.d.).

Furthermore, like other property rights, the intellectual property owner has the right to sell or lease their interest in their property rights, for profit or other consideration, to a third party. However, more so than with 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, granting 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 copies to individual purchasers. Those purchasers receive the right to read that one copy and even to resell it, but they do not acquire any rights to the content itself. A book purchaser, for instance, does not have the right to republish and distribute the book's contents. Moreover, all of this can occur without the author losing ownership rights 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 common in the copyright context and highlights the flexibility that is inherent in the realm of intellectual property.

References

Depoorter, B. (2009). Technology and uncertainty: the shaping effect on copyright law. University of Pennsylvania Law Review, 157(6), 1831–1868.

Fisher, W. (2003). Overview of trademark law. Retrieved September 20, 2014, from Berkman Center for Internet & Society at Harvard University website: https://cyber.law.harvard.edu/metaschool/fisher/domain/tm.htm

Leaffer, M. A. (2011). Understanding copyright law. Danvers, MA: Matthew Bender & Company, Inc.

Lee, P. (2010). Patent law and the two cultures. The Yale Law Journal, 120(1), 2–82.

Merges, R. P. (2010). The trouble with trolls: innovation, rent-seeking, and patent law reform. Berkeley Technology Law Journal, 24(4), 1583–1614.

Seymore, S. (2011). Rethinking novelty in patent law. Duke Law Journal, 60(4), 919–966.

Teuber, R. (2010). Geographical indications of origin as a tool of product differentiation: the case of coffee. Journal of International Food & Agribusiness Marketing, 22(3–4), 277–298.

World Intellectual Property Organization. (n.d.). What is intellectual property? Retrieved September 19, 2014, from WIPO website: