Intellectual property (
IP) is a number of distinct types of
legal monopolies over creations of the mind, both artistic and commercial, and the corresponding fields of law. Under intellectual property law, owners are granted certain
exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property include
copyrights,
trademarks,
patents,
industrial design rights and
trade secrets in some jurisdictions.
Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term
intellectual property began to be used, and not until the late 20th century that it became commonplace in the United States.
[ " property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations." in Mark A. Lemley, , Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4. ]Objectives
Financial incentive
These exclusive rights allow owners of intellectual property to reap
monopoly profits. These monopoly profits provide a financial incentive for the creation of intellectual property, and pay associated
research and development costs. Some commentators, such as
David Levine and
Michele Boldrin, dispute this justification.
Economic growth
The legal
monopoly granted by IP laws are credited with significant contributions toward economic growth. Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets. Industries which rely on IP protections are estimated to produce 72 percent more value added per employee than non-IP industries.
[, Robert Shapiro and Nam Pham, July 2007.] A joint research project of the
WIPO and the
United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."
[, WIPO, 2007.]However, correlation does not necessarily mean causation: given that the patent holders can freely relocate, the
Nash equilibrium predicts they will obviously prefer operating in countries with strong IP laws. In some of the cases, the economic growth that comes with a stronger IP system is due to increase in stock capital from direct foreign investment.
Economics
Intellectual property rights are temporary
monopolies enforced by the state regarding use of expressions and ideas.
Intellectual property rights are usually limited to
non-rival goods, that is, goods which can be used or enjoyed by many people simultaneously—the use by one person does not exclude use by another. This is compared to rival goods, such as clothing, which may only be used by one person at a time. For example, any number of people may make use of a mathematical formula simultaneously. Some objections to the term
intellectual property are based on the argument that
property can only properly be applied to rival goods (or that one cannot "own" property of this sort).
Since a non-rival good may be used (copied, for example) by many simultaneously (produced with minimal
marginal cost), producers would need incentives other than money to create such works. Monopolies, by contrast, also have inefficiencies (producers will charge more and produce less than would be socially desirable).
The establishment of intellectual property rights, therefore, represents a trade-off, to balance the interest of society in the creation of non-rival goods (by encouraging their production) with the problems of monopoly power. Since the trade-off and the relevant benefits and costs to society will depend on many factors that may be specific to each product and society, the optimum period of time during which the temporary monopoly rights should exist is unclear.
History
Modern usage of the term
intellectual property goes back at least as far as 1888 with the founding in
Berne of the
Swiss Federal Office for Intellectual Property (the
Bureau fédéral de la propriété intellectuelle). When the administrative secretariats established by the
Paris Convention (1883) and the
Berne Convention (1886) merged in 1893, they also located in Berne, and also adopted the term intellectual property in their new combined title, the
United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the
World Intellectual Property Organization (WIPO) by
treaty as an agency of the
United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),
and it did not enter popular usage until passage of the
Bayh-Dole Act in 1980.
The concept appears to have made its first appearance after the French revolution. In an 1818 collection of his writings, the French liberal theorist,
Benjamin Constant, argued against the recently-introduced idea of "property which has been called intellectual." The term
intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case
Davoll et al. v. Brown., in which Justice
Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." (
1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414). The statement that "discoveries are...property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years." In Europe,
French author A. Nion mentioned
propriété intellectuelle in his
Droits civils des auteurs, artistes et inventeurs, published in 1846.
The concept's origins can potentially be traced back further.
Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century. The
Talmud contains the prohibitions against certain mental crimes (further elaborated in the
Shulchan Aruch), notably
Geneivat da'at (גניבת דעת, literally "mind theft"), which some have interpreted as prohibiting theft of ideas, though the doctrine is principally concerned with
fraud and
deception, not property.
Thomas Jefferson and
James Madison, drafters of the
Copyright Clause, were both quite skeptical to the monopolies of copyright, and monopolies of patents, and wrote extensively on the subject.
Criticism
The term itself
Although the term is in wide use, some critics reject the term
intellectual property altogether.
Richard Stallman argues that it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues."
These critics advocate referring to copyrights, patents and trademarks in the singular and warn against abstracting disparate laws into a collective term.
The laws
Some critics of intellectual property, such as those in the
free culture movement, point at
intellectual monopolies as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses, and argue that the public interest is harmed by ever expansive monopolies in the form of
copyright extensions,
software patents and
business method patents.
Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection (raising fears that it may some day be eternal
). In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms, and colors have been trademarked. Because they are systems of
government-granted monopolies copyrights, patents, and trademarks are called
intellectual monopoly privileges, (IMP) a topic on which several academics, including Birgitte Andersen and
Thomas Alured Faunce have written.
See also
