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Intellectual Property Rights:

Intellectual property laws confer a bundle of exclusive rights in relation to the particular form or manner in which ideas or information are expressed or manifested, and not in relation to the ideas or concepts themselves. The term "intellectual property" denotes the specific legal rights which authors, inventors and other IP holders may hold and exercise, and not the intellectual work itself. Intellectual property laws are designed to protect different forms of subject matter, although in some cases there is a degree of overlap. Copyright may subsist in creative and artistic works (e.g. books, movies, music, paintings, photographs, and software) and give a copyright holder the exclusive right to control reproduction or adaptation of such works for a certain period of time. A patent may be granted for a new, useful, and non-obvious invention, and gives the patent holder a right to prevent others from practicing the invention without a license from the inventor for a certain period of time. A trademark is a distinctive sign which is used to distinguish the products or services of different businesses. An industrial design right protects the form of appearance, style or design of an industrial object (e.g. spare parts, furniture, or textiles).A trade secret (which is sometimes either equated with, or a subset of, "confidential information") is secret, non-public information concerning the commercial practices or proprietary knowledge of a business, public disclosure of which may sometimes be illegal. Patents, trademarks, and designs rights are sometimes collectively known as industrial property, as they are typically created and used for industrial or commercial purposes.


The earliest use of the term "intellectual property" appears to be an October 1845 Massachusetts Circuit Court ruling in the patent case Duvall 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 as much a man's own...as the wheat he cultivates, or the flocks he rears." But 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. Neon mentioned "propriety intellectual" in his Droits civil des auteur, artistes et inventers, published in 1846.The term's widespread popularity is a much more modern phenomenon. It was very uncommon until the 1967 establishment of the World Intellectual Property Organization, which actively tried to promote the term. Still, it was rarely used without scare quotes until about the time of the passage of the Bayh-Dole Act in 1980.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. The Talmud contains the first known example of codifying a prohibition against the stealing of ideas, which is further discussed in the Sultan Aruch.However, the legal system of most of the Western world does not have provisions for intellectual property and the laws the term encompasses are justified on more constrained grounds. The term does not occur in the United States Copyright Statutes, except in certain footnotes citing the titles of certain Bills. The term used in the statutes and in the Constitution is "exclusive rights".

Alternative terms:

In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased. An alternate terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman. The acronyms intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the acronym digital restrictions management. Another issue is that if intellectual property exists there must be a parallel concept of intellectual capital - capital being the property that permits more property to be created. This, and the related term instructional capital that applies to the proper subset of patents and non-fiction copyright, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset. The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright concerns original creative or artistic works, patent concerns new and useful inventions, and trademarks concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations' World Intellectual Property Organization on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce" . These critics see this assertion as propaganda for a "property view", and suggest alternative terms such as individual capital, instructional capital and social capital over the term "intellectual capital", which has an ambiguous status, even among believers in neoclassical economics. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial".

Expansion in nature and scope of IP laws:

In recent times there has been a general expansion in intellectual property laws. This can be seen in the extension of laws to new types of subject matter such as databases, in the regulation of new categories of activity in respect of subject matter already protected, in the increase of terms of protection, in the removal of restrictions and limitations on exclusive rights, and in an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hire has also had the effect of treating a corporation or business owner as the legal author of works created by employees. The American film industry helped to change the social construct of intellectual property by giving rise to a shrewd and well-funded trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA consistently advocated strong protection of intellectual-property rights. In framing its presentations, the association has capitalized on lawmakers' receptivity to labor-desert theory - that is that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. This strategy has been highly effective; with remarkable frequency, the positions the association has supported have prevailed. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority. The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire. The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonize the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft's slogan "Where do you want to go today?" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademarks in the marketplace, harmonization may not amount to a fundamental expansion of the trademark concept. In the context of patents, the grant of patents in some jurisdictions over certain life forms, software algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter. Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain for the common good. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies. The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use provisions of copyright law and even make the first-sale doctrine (known in European Union law as "exhaustion of rights") moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act, which uses criminal law to prevent any circumvention of software used to enforce digital "rights management" systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). These provisions raise serious free speech issues even beyond those raised by intellectual property law in general. At the same time, the growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, represents a challenge for exclusive rights policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against what it terms "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.

Economic view:

Exclusive rights such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly for this reason. However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. In such cases, economists may find that another market form, such as oligopoly or monopolistic competition better describes the workings of the markets for expressive works and inventions. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate. The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalries. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons can result. The subjects of intellectual property do not share this feature of realness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and no excludability combine to make them public goods and susceptible to the free rider problem. A rationale for "intellectual property" therefore rests on incentive effects to overcome the free rider problem. This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship. However, as Wikipedia and Free software demonstrate, works of authorship can be written without the incentive of such exclusive rights. Moreover, many important works were created before copyright was invented. One might argue that much more invention occurred after patents came into existence; however, one could also argue that patents were brought into law as the power and influence of industrial interests grew. The status of intellectual property is disputed by various commentators in the developing nations. At the same time, developed countries are accused of supporting companies using intellectual property and patent laws to gain exclusive control over already known substances more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilization and extraction of substantial parts. This would be an additional right predicated on a substantial investment that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feast Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study has found that the introduction of exclusive rights to databases in the EU did not do any good to the economy. The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this such as the Business Software Alliance (BSA), which purports to represent the interests of the commercial software industry while the Recording Industry Association of America (RIAA) represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, it tends to reduce the rights of its primary beneficiaries, the general public. Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rights holder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for these data. The BSA reports a study that claims "while $80 billion in software was installed on computers worldwide last year, only $51 billion was legally purchased" (Source’s). The BSA says "software pirates" avoided a cost of $29 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost that is yet uncounted. But Microsoft is lowering its selling price on competition from Linux, for example with government clients. Because of this competition, Microsoft was forced to release an update to Internet Explorer to the public for its current product (Windows XP) which it originally planned to release with its next operating system (Windows Vista)

Valuation of intellectual property:

Little argument over intellectual property (IP) would occur if it did not have a value for the owner. The principle of valuing IP is to determine the future income associated with its ownership (Smith & Parr: Valuation of Intellectual Property and Intangible Assets, 3rd Edition, Wiley 2000). Note that the value of IP is generally independent of its cost. Determination of future income requires estimating the income due to the IP in each of all future years over its life; i.e., the amount sold and the net income per unit after routine sales costs are deducted. If the IP is used internally, then the savings due to owning it can be similarly estimated. The risk that intellectual property becomes obsolete is high, and reduces the current value. Without risk, future income is discounted by using a risk-free interest rate. Risks include unexpected competition, unauthorized copying, patent breaches or invalidation, and loss of trade secrets. With such risks, discount rates increase, based on the expected Beta coefficient. With high discount rates, sales that occur far in the future have little effect, simplifying the determination of the net current value of the included IP.When the items being valued contain multiple IP components, then the proportion and life of each component must be determined. That case exists in the small, as for software that receives updates throughout the future, and in the large, for companies that vend many products. Shareholders of public companies in effect estimate the aggregate IP of a company, providing a market capitalization through the price they are willing to pay for shares, which is in effect the sum of the book value and the IP owned by the company.U.S. generally accepted accounting principles (GAAP) do not allow the listing on corporate books of IP[citation needed], making it hard for investors to be rational about share prices. IP is generated mainly through research, development, and advertising (IP generating expenses or IGE), making it hard to assess the effectiveness of IGE. Companies participating in the knowledge economy typically have a market capitalization which is a large factor greater than their book value, the sum of their tangible assets and cash. Normally it is only when a company has been purchased will the purchased IP appear as part of the purchased price allocation required by International Financial Reporting Standards Number 3 (IFRS 3) on Business Combinations

Intellectual property rights in the digital era:

Intellectual property rights (IPRs) in the digital era have added a new dimension to the traditional regime of IPRs. The complexity and jurisdictional issues relating to the Internet are challenging the IPR regime drastically. Though, TRIPS Agreement has tried to harmonize the IPRs all over the world yet the digital issues are vexing the IPRs enforcement everywhere. There is no harmonized law vis-à-vis IPRs in the digital era and this gives rise to conflict of laws. At the same time certain technological measures have also been adopted to tackle the violations of IPRs in the digital environment but their efficiency and effectiveness is doubted.

Academic courses:

The study of intellectual property has grown in to a distinct academic discipline, most notably in law schools from higher education institutions in developed countries such as the UK, Germany, USA and Canada. Postgraduate courses (often referred to as an LLM or Master of Laws) are available for those looking to further their academic exposure and gain internationally recognised qualifications for intellectual property