Overview of Intellectual Property

The term intellectual property refers to the innovations of the human mind. Intellectual property rights protect the interests of these innovators by giving them property rights attached to those ideas. The term “intellectual property rights” stands for these legal rights that authors, inventors, and other creators have. Intellectual property laws relate to a particular way in which ideas or information is expressed or displayed, but not the actual ideas or exact concept itself. The first use of the expression “intellectual property” appears to be October 1845, in Davoll vs.

Brown, a patent case in Massachusetts. Justice Charles Woodbury said that “only in this way can we protect intellectual property, the labors of the mind, productions and interests as much a man’s own… as the wheat he cultivates, or the flocks he rears. ” Though coined many years prior, the term has only become popular very recently. It was uncommon to hear the expression until the establishment of the World Intellectual Property Organization in 1967, which then actively promoted the term. Types of Intellectual Property Rights There are currently many different ways to protect intellectual property.

Intellectual property is divided into two main categories: industrial property, which includes patents, trademarks, industrial designs, and geographical indication; and copyright. Industrial property Patent: This is an exclusive right granted for an invention, a plant, or an appearance. A patent provides protection to the owner of the patent for a limited period, typically 20 years from the filing date of a patent application. There are several types of patents: Utility Patents cover “inventions”, which can be a product, a process that presents a different way of accomplishing something, or provides a new technical solution to a problem.

Plant Patents can be approved for the invention or discovery, and the asexual reproduction of, a new variety of a plant, especially if genetic engineering is used. Design Patents refer to a protected appearance of a device, but not its function. Trademark: Many times referred to as a brand name, this is any distinctive sign that identifies certain goods or services provided. This can also be a sound or a fragrance, as well as the appearance or logo of a product. A trademark can usually be renewed indefinitely.

Industrial Design: This right protects the form of appearance, style or design of an industrial or handicraft object, and it provides protection for up to 15 years. Geographical Indication: A indicator used on goods that have a specific origin and often possess qualities or a reputation that are due to that place of origin may not be used by those unauthorized to do so, if it will likely mislead as to the origin of the goods. Trade Secrets: This is protected information that is not generally known, and has commercial value because it is secret. Copyright.

This protects an author’s or creator’s literary and artistic works, including computer programs, sound recordings, and radio and television programs. It gives the exclusive rights to control reproduction and adaptation of these works. The 1790 Copyright Act established a term of 14 years of protection, which could be renewed, if the author was still living, another 14 years at the end of the term. Now, copyrights last for the life of the author, and an additional 50 years after their death, and may be extended by Congress in the near future. Controversy of Intellectual Property

The Jewish Talmud has the first known example of laws against the appropriation of ideas, though the view of ideas being actual “property” does not seem to exist. We do not know who first began thinking of ideas as property, but it most likely it came from someone who was intelligent enough to not share their information. Views on intellectual property vary from the belief that that intellectual property should be protected, to the view that ideas should be completely unrestricted and free to use. Thomas Jefferson believed that ideas had the right to be shared, saying:

“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 everyone, 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. ” How is it possible to identify a truly new idea anyway?

Humans collect knowledge their entire lives, and this information may just be regurgitated and reformed, and these “original” ideas or processes may just be modifications of someone else’s idea. Another argument given by those who are against intellectual property is that many who own the rights to the ideas are large corporations who buy the intellectual property rights from individuals who make little money from their ideas. Those in favor of intellectual property assert that a creator has certain rights regarding their creation.

They have a right to control the integrity of their work. There are many cases of musical compositions being regulated to the public domain, and then used for product promotion. They also have a right to decide when and if a work is published. Other arguments for intellectual property are it fosters creativity by providing the opportunity for compensation for their work, and that creators ethically deserve this return. Many of humanity’s loftiest achievements take much time and effort to produce, and should be protected.

The only thing that is certain is little argument would occur if the ideas or concepts did not have a value for the owner, or to others who would use those ideas. Intellectual Property in the Digital Age “Software’s the ultimate durable good, which of course in economics makes it a very, very competitive market” — Bill Gates In this current era of easy reproduction, there has been an outcry for changes in intellectual property rights. Computers have made this easy reproduction possible on new levels, but radio and television really introduced this idea of free transmission of intellectual property.

When there is no owner of the medium, for example the Internet, it is easy to forget, or just disregard, that there is usually an owner of the information being view on that medium. The digital age has changed the things that we place value on. It used to be the value was in the product that conveyed the information, a book, a videocassette, or a CD. John Perry Barlow, former lyricist for the Grateful Dead, stated, “the value was in the conveyance and not in the thought conveyed. ” Now information can be passed along without a material channel.

And digital reproduction allows for perfect copies, unlike older forms of reproduction, which lost quality with each copy. There are several obstacles to the enforcement of intellectual property laws on the Internet. People violate intellectual property laws in huge numbers, and make the enforcing of these laws completely ineffective. And the fact that many foreign countries do not acknowledge, or even compel their citizens to obey intellectual property laws, makes the task of controlling the misuse of protected information on the Internet near impossible.

Services exist that help detect this misuse, but the overwhelming scale makes even these services ineffectual. No Electronic Theft Act Pre-computer copyright infringement cases dealt with people who where profiting by not respecting the copyright. The No Electronic Theft Act, or the NET Act, is a federal law that was passed in 1997, was an important change in copyright law. It instituted criminal penalties for those guilty of copyright infringement, even if there was no monetary profit to be gained by ignoring the copyright.

It also raised statutory damages that can be claimed by fifty percent for the violated copyright. Digital Millennium Copyright Act of 1998 The Digital Millennium Copyright Act of 1998 is a United States law that gives important protection to the owners of copyrights and safeguards to Internet Service Providers (ISPs). It criminalizes the production, ownership, and use of any technology that can be used to avoid protections of copyrighted works, even in the case that there is no actual infringement of copyright.

Case Study Involving Intellectual Property – Domain Names In case 14-6, the question arises whether or not domain names can be purchased primarily for the intention of selling or transferring the domain name to the trademark owner for a profit. Spider Webs, Ltd. would purchase domain names, including city names, the names of or related to businesses and companies, the names of buildings, and names associated with specific trades, and would offer them for sale on Ebay. Gallo Winery sues Spider Webs for the domain name ERNESTANDJULIOGALLO.

COM. In this case, it is a specific name, as well and the name of a business. During the suit, Spider Webs used the URL to post negative views of Gallo, and the “risk associated with alcohol use”. Gallo asked the court for the domain name and statutory damages. The Anticybersquatting Consumer Protection Act was created to give trademark owners legal recourse against those who obtain domain names “in bad faith” that are identical or confusingly alike to their trademark. The trademark owner must prove two things: 1.

The Defendant has a bad faith intent to profit from that mark, including a defendant name which is protected as a trademark; 2. registers, traffics in, or uses a domain name that– (I) in the case of a trademark that is distinctive at the time of registration of the domain name, is identical or confusingly similar to that trademark; (II) in the case of a famous trademark that is famous at the time of registration of the domain name, is identical or confusingly similar to or dilutive of that trademark; or (III) is a trademark, word, or name protected by reason of 18 U.

S. C. § 706 (the Red Cross, the American National Red Cross or the Geneva cross) or 36 U. S. C. § 220506 Posting the domain name for sale in Ebay. com is a proven intent to profit from that trademark. The Anticybersquatting Consumer Protection Act empowers a court to order the “forfeiture or cancellation of a domain name or the transfer of the domain name to the owner of the mark”. The court can also award statutory damages between $1,000 and $100,000 per domain name. In this case, Gallo would most likely receive the transfer of the domain name to his ownership.

He will also probably receive damages, perhaps his court costs and whatever the court deemed fair to compensate him for the damage done by the defendant using the site to negatively impact his name and business. Conclusion Intellectual property can be a confusing term, but it is an important concept. The ramifications of strengthening or relaxing its grip on the way we interact and use information today will affect future generations in ways that may be unclear, but undeniably powerful. It is important to balance the rights of individuals on either side of the law, so information can be applied to what we need it for the most, growth.