Today, the law of intellectual property encompasses the legal concerns represented by copyrights, trademarks, patents, design rights, trade secrets, and related concerns. This area of law focuses on protecting the rights of the owners of intellectual property to control when and if a work is reproduced, related adaptations of the work, and distribution and performance of the work.
Intellectual property law is in a more dynamic state of tension than ever before. The situation is driven by two historic and interrelated phenomena of the late twentieth and early twenty-first centuries. The fact that most intellectual property has been both internationalized and digitalized is transforming the field dramatically and rapidly. The works of any nation’s creators are now marketed worldwide like never before. And most of those works can be digitally copied and distributed anywhere in the world, in unlimited numbers and virtually instantly via the Internet, satellite transmission, and other media.
Those two factors represent agents of change with incalculable impact. They offer both opportunities and challenges of staggering proportion to the owners of intellectual property and to the industries built upon its marketing. Intellectual property law today races to keep pace with an epic clash between modes of access. The deeply entrenched and immensely profitable business model in which mass-produced works were relatively easily protected from unauthorized copying battles to survive in an electronic economy in which digital technology makes such protection a sharply escalating and far more expensive proposition. Thus, an age-old struggle over what rights creators shall have in relation to their works has reached a point of unprecedented conflict over the direction intellectual property law should evolve in response to the revolutionary technological changes of the age.
Since the earliest days of mass production, authors, inventors, and the industries that capitalized on their works have sought to prevent unauthorized replication of their creations. Quite simply, profitability is critically linked to the degree of control one has over the production and distribution of creative works. And the idea of rewarding a creator for providing society with something new and useful is an ancient one. It has been grounded in two main schools of legal thought. Natural law maintains a concept of creators having a moral right to their intellectual property, and thus the taking of it without compensation is wrongful. The other main philosophical basis for intellectual property rights has been the utilitarian concept that such rights are rewards for the effort involved in creating original works, providing incentives for such creation and thus benefiting the greater society through pursuit of those incentives. That is not to say, however, that other concepts related to the ownership of ideas have not been historically and culturally important in some parts of the world. Even today, many arguments that strict intellectual property rights create monopolies that encroach upon mankind’s common heritage of knowledge focus on the tendency for such regimes to disproportionately benefit developed societies while slowing progress in developing nations.
The United States produces and consumes more intellectual property than any other nation, and has pushed the development of related law in the United States and internationally. But the production and consumption of creative works are increasingly matters of global concern. Most nations now have established their own bodies of intellectual property law and have joined treaties that protect the intellectual property rights of all who are parties to the agreements beyond their own national borders. The process has yet to realize a seamless, universal system, and variations in enforcement mean that international piracy of creative works remains commonplace in many parts of the world. But the process continues intensely, because the financial considerations at stake are immense.
Multinational efforts to work out arrangements for protection of intellectual property began more than a century ago. But those efforts have been vastly advanced in recent years. The Berne Convention for the Protection of Literary and Artistic Works, an international copyright agreement first instituted in 1886, is the oldest and most important international copyright treaty. Its provisions and membership have evolved substantially since its beginning, with some 160 nations now committed to protecting the copyrights of each other’s creators. The Madrid Agreement concerning the International Registration of Marks (known as the Madrid Protocol) has standardized international systems of trademark across the borders of more than 60 signatory nations. The Paris Convention on Industrial Property and the Patent Cooperation Treaty establish international rules on patents. As part of the Uruguay Round of General Agreement on Tariffs and Trade (GATT) negotiations of 1994, the Agreement on Trade-Related Intellectual Property (TRIPS) was adopted. It requires developing nations to recognize and enforce intellectual property rights, though the enforcement provisions are subject to national laws and judicial systems. Nevertheless, TRIPS is considered the most significant strengthening of international norms in intellectual property law to date.
Copyright protects creative expression in many forms, including literary, musical, dramatic, audiovisual, pictorial, graphic, sculptural, etc. It does not protect facts or ideas, but rather the way in which they are fixed in a tangible medium of expression from which they can be perceived, reproduced, or otherwise communicated. Examples include books, newspapers, magazines, movies, song compositions and recordings, artworks, computer software, architectural drawings, advertisements, etc. The copyright owner can be the creator of the work, or ownership can be transferred contractually. Intellectual property rights in works created by regular employees within the scope of their employment in most cases belong to their employers. Intellectual property rights in works created by freelance or contract employees in most cases belong to the freelancer unless a work-for-hire agreement contractually assigns the rights to the employer. Registration provides additional protections for the copyright owner, but is not required in order to own a copyright. Copyright today begins when expression is fixed in a tangible medium, and lasts for a specified period of time. However, it has become common to repeatedly expand the length of that period by statute. The life of the author plus several decades (a minimum of 50 years under the Berne Convention, though it is longer in many nations) is a typical standard today. A work on which the copyright has expired is considered to be in the public domain, and is free of copyright restrictions.
Trademark law is concerned with the many permutations of the phenomenon broadly referred to today as “branding” – symbols, logos, shapes, slogans, jingles, sounds, smells, etc. Their use enhances the commercial value of the products and services they distinguish from those of others. Trademark protects not original expressions, but rather marks established in commerce as distinctive. Trademark law is focused on preventing competitors from unfairly capitalizing on the investment that mark holders have made to associate marks with products and services. Critical issues in assessing alleged infringement of marks are the likelihood of confusion and the dilution of distinctiveness related to the unauthorized use. Marks last as long as they are used commercially, but can be lost if companies fail to maintain their use over time or allow generic use by others.
Broadly speaking, copyright and trademark law are concerned with how things look, while patent law deals with how things work. In that context, patents are less directly related to communication law, and therefore are not included as a significant topic of this discussion. But it should be noted that patent law today deals with a tremendous range of entities, including machines, processes, and compositions of matter (as well as new uses of all those); the ornamental and/or esthetic design elements of inventions/products; and even plant organisms (in bio-engineering, for example).
The concept of fair use in US intellectual property law has sought to permit some exceptions for limited copying of protected expression for comment and criticism, without permission or payment. A core principle has been that in order to qualify as fair use, the copying must add something new – an original contribution of transformative expression, meaning, or message – to that which is copied. To that end, statutory and judicial assessments concerning fair use have focused on the purpose and character of the use, the nature of the protected work that has been copied, the amount and substantiality of the portion used, and the effect upon the work’s potential market value. Although the measures tend to be subjective, fair use has generally been more likely when it is for reporting, criticism, commentary, teaching, scholarly or technical research; when only a small part of the overall work is copied, and when the use does not have a negative impact on the copied work’s potential market value.
The great many recent legislative efforts to toughen intellectual property protections in recent years have generated considerable criticism that corporate commercial interests are locking away too much of the world’s creative capital. Although it was once relatively common for creative works to fall into the public domain over time, lengthened copyright terms and other protections have slowed that process. The argument goes that recent trends are undermining the traditional balance between encouraging creators to produce by protecting their work in limited ways and encouraging further creativity through sharing of common cultural stock. That is, rather than a tradition in which ideas are passed along freely enough so as to maintain their ongoing evolution through common access to them, society is shifting to a new system in which so much creative expression is owned and tightly controlled that most people can participate in the culture only through the permission of those who own it.
Owners of protected works, however, increasingly argue that the value of their intellectual property rights can be dramatically diminished by technologies that make possible virtually unlimited copying and distribution of their works without permission or compensation. The music and motion picture industry reports they have lost several billion dollars annually in recent years through unauthorized copying of their works. Estimates of worldwide piracy of all intellectual property have calculated losses many times larger than that. The music and motion picture industries have increasingly initiated aggressive legal actions against individuals engaged in, for example, unauthorized downloading of music and films via the Internet, as well as against the providers of software that enables such practices.
The law of intellectual property will continue to evolve in relation to technological developments, and conflicts will continue between those who seek to protect their rights in such property and those who strive to maintain wide access to society’s common heritage of culture and ideas.
- Choate, P. (2005). Hot property: The stealing of ideas in an age of globalization. NewYork: Knopf.
- Cornish, W. (2004). Intellectual property: Omnipresent, distracting, irrelevant? Oxford: Oxford University Press.
- Gantz, J., & Rochester, J. B. (2005). Pirates of the digital millennium: How the intellectual property wars damage our personal freedoms, our jobs, and the world economy. Upper Saddle River, NJ: Financial Times Prentice Hall.
- Lasica, J. D. (2005). Darknet: Hollywood’s war against the digital revolution. Hoboken, NJ: John Wiley.
- Leaffer, M. (2005). Understanding copyright law, 4th edn. NewYork: Matthew Bender.
- Lessig, L. (2004). Free culture: How big media uses technology and the law to lock down culture and control creativity. New York: Penguin.
- Masterson, J. T., Jr. (ed.) (2004). International trademarks and copyrights: Enforcement and management. Chicago: American Bar Association.
- Matthews, D. (2002). Globalizing intellectual property rights: The TRIPS Agreement. London: Routledge.
- Mitchell, H. (2005). The intellectual commons: Toward an ecology of intellectual property. Oxford: Lexington.
- Stim, R. (2006). Patent, copyright, and trademark, 8th edn. Berkeley, CA: Nolo.
- Useful websites are: Creative Commons at creativecommons.org; Hieros Gamos Legal Directory to Intellectual Property Law at www.hg.org/intell.html; United States Patent and Trademark Office (USPTO) at www.uspto.gov/learning-and-resources/other-web-resources, with links to intellectual property offices worldwide; and World Intellectual Property Organization (WIPO) at www.wipo.int.