Intellectual Property Law

Intellectual Property Law

25 August 2007

The state of Intellectual Property Law and the current debate in modern society

Intellectual property refers to creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce.

Intellectual property is divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial designs, and geographic indications of source; and Copyright, which includes literary and artistic works such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings, photographs and sculptures, and architectural designs. Rights related to copyright include those of performing artists in their performances, producers of phonograms in their recordings, and those of broadcasters in their radio and television programs. (What is Intellectual Property)

Intellectual property laws cover a vast array of situations in which it can be applied. Whereas property has, in the past, been defined as a tangible asset, i.e. land, a home or structure, an article of clothing, or some other kind of tangible or physical item, intellectual property is quite different. The controversy lies with the fact that the term is so broadly defined that it leaves quite a lot of room for interpretation. It seems everyone with a patent of any kind believes that they are protected under intellectual property law, when in fact the way the law, as it is applied, is not always "cut and dry". In fact, just about everything we come in contact with on a daily basis, has its origin somewhere in our history. Therefore it is often very difficult to have an original thought or process.

Intellectual property on the other hand is not always a tangible asset. Intellectual property can be a form of expression, however this is where the interpretation of begins to get tricky. Although words and language have been a part of human culture for thousands of years, if they are strung together to form an original thought, phrases, or verse, they may become intellectual property. The owner of a song claims control, not of the CD on which the song is recorded, but of the song itself, of where, when, and how it can be performed and recorded.

The advent of the computer sparked a great rise in the claims of intellectual property infringement and the laws that governed against such infringement. The term, Intellectual property, has always been closely tied to technology. Technology also supports intellectual property by providing new, more powerful and more efficient way of creating and disseminating writing, musical composition, visual art, and so on. In fact it was the technology of the printing press that originally gave rise to intellectual property as a legal and moral issue. Before, when it took almost as much of an effort to reproduce a document as it took to create it, there was little need to impose limits on copying. It was only when inexpensive reproductions became feasible that it was seen as necessary to give authors more control over how their works were used by creating copyright laws (McFarland, 1999).

In 1980 the Bayh-Dole Act, sponsored by Senator Birch Bayh, was instrumental in changing 35 years of public policy that made any inventions that came as a product of a federally funded research grant the property of the federal government. With the passage of the Bayh-Dole Act, universities and small businesses had the right to own inventions that resulted from those programs. Although the act was originally opposed by the Carter administration, which had a different view of how to utilize the results of federally funded research to drive economic development. (Stevens1, 2002)

What drives our concepts of value are the principals of supply and demand, and we tend to place more value on limited resources. However these concepts must be modified now with the advent on intellectual property. The rules of scarcity upon which our entire economic system is structured are being turned upside down. What would happen to systems of trade if we could instantly produce an unlimited supply of any resource? We would no longer be able to place any value to that resource. There would be no need for trade. Everything would change. This is exactly what the information revolution is doing.

The unique nature of information is that it is an unlimited resource. If I have an idea, and I give it to you, I still have that idea. I can give that idea to everyone in the entire world, without losing anything. Scarcity does not exist, thus our current economic models don't make much sense. This is already causing a great deal of turmoil as people try to exchange information for scarce resources in the physical world. We need to find a way to facilitate trade between these two worlds, or those who produce ideas in our society will be unable to function; our solution has been to create the laws of intellectual property. Intellectual property is an attempt to create scarcity where scarcity does not naturally exist. (Jones, 1998)

Intellectual Property laws were applied in an attempt to give the creator of a thought or process control over the distribution of that thought or process. This system works well when applied to a tangible asset or commodity. However, now that we continue to move in the direction of a society with no borders, largely based on the sharing of information, it becomes more difficult to regulate those laws. This becomes even more apparent when dealing with countries, such as (China) that do not agree with our principals of intellectual property or feel obligated to enforce or abide by such laws. Countries where a large segment of their economy is built on revenues derived from various types of copyright violations. Numerous groups in China have been pirating U.S. computer software, movies, music, and other information products. When looked at from the perspective of these U.S. corporations, this is theft. The Chinese are using information they never paid for. However, from the China's perspective, the U.S. corporations are the thieves. The Chinese realize that information is not a scarce resource. When someone in China illegally copies an American computer program, movie or CD the U.S. is not directly harmed; no resources are diminished, and therefore no payment should be demanded or expected. U.S. demands of payment for these copies seem like an arbitrary bully demanding taxes on air. It doesn't make sense from China's perspective, and they seem quite willing to stand up and fight the U.S. on this issue. (Jones, 1998)

Some new forms of control