BUS303: Strategic Information Technology

Why Do Intellectual Property Rights Exist?

IP rights have a somewhat complicated history  –  there are a lot of debates about why they exist, and many scholars end up tracing back to a guild monopoly in England. But in the modern United States, two of the three forms of IP are specifically provided for in the U.S. Constitution, which lists among the powers of Congress the following power:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries".

(That's in Article I, Section 8, clause 8 of the Constitution, if you're curious.)

This is called the Patent Clause (for the part about inventors and discoveries) or the Copyright Clause (authors and writings). It clearly sets out that in the U.S., the purpose of intellectual property rights  –  patents and copyrights at least  –  is "the promotion of the progress of science and the useful arts". This is an economic rationale: in order to encourage more people to create, the government agrees to allow creators to make a profit from their creations (generally by selling or licensing them).

This constitutes a deal between the government and the creator: the government will recognize (and sometimes even enforce) the creator's rights for a limited time, and in return, the creator will promote progress by creating.

Note that the deal is "for limited Times". What this means is that once the time period runs out, the IP is available to everybody, universally. Patents and copyrights both have time limits.

And once that limit is hit, you're…

In other countries, primarily much of Europe, there's sometimes another related reason that the U.S. doesn't generally recognize, which is called a "moral right", that is, a right based on the more abstract notion of "this is my creation, which means I get to control what happens to it". This isn't tied to the economic benefit, but a less tangible "rights of the creator" concept. It's beside the point here.

Trademarks are a little different, because the general rationale for trademarks is to protect and help consumers. Trademarks are a statement of quality  –  the manufacturer and/or seller says it's good enough for them to sell, and you the consumer can use that judgment and your familiarity with the people who have put their name on it as a shortcut for deciding if you want to buy it. And if the product isn't up to snuff, you know who failed you. So it's a similar but slightly altered deal: the government protects trademark rights, so companies use trademarks to protect consumers.

What Are the Rights?

Patents, copyrights, and trademarks each have a different scope of protection, a different length of time where the protection applies, and different limits and conditions. Here, I'm going to be showing my U.S.-centric view, I admit, especially regarding the time of protection.

Patents

A patent is the right to control the manufacture, sale, import, and use of an invention.

The scope here is "inventions". We'll broadly define those as "products or ways of doing things". New machines, new formulas for drugs, new ways of manufacturing computer chips. These inventions have to be fully described in the process of getting the patent, so that it's clear exactly what you've invented, and to make sure you haven't just "invented" something that isn't really an invention, but just some obvious minor change to an existing thing (like painting a blue chair red and calling it a new chair). Also, depending on exactly how the patent is written, it can cover other specific implementations of the same basic concept. Generally we use the term "idea", to represent how broad patents can be.

The protections on patents are the broadest. You have near-complete control over who can make or use your invention. Even if someone comes up with the same invention without knowing about yours, you can stop them from making or using it. If somebody wants to license your invention, meaning they pay you for the right to make or use it, you can set whatever terms you want (within the bounds of reason common to all contracts; you can't contract away basic human rights, for example).

By contrast, the time period is pretty short: Twenty years from when you apply for the patent. (There's some flexibility on that, but it's pretty involved and outside the scope of this.) After that, the invention is available for all  –  and because, as I said, getting a patent involves explaining how to build and use it, you can't really hide details and get to be the only one who can successfully make it even after the patent expires.

Copyrights

A copyright is the right to control the reproduction, sale, distribution, performance, and derivatives of an original work of authorship.

This time, the scope is "an original work of authorship", sometimes called "a creative work". Books, articles, songs, paintings, sculptures, plays, movies, building blueprints, detailed character designs, and more are all examples of creative works. Very importantly, though, copyright protects the specific works, and not the ideas behind them.

I'm going to say that again, because it's very important, and tends to be misunderstood a lot: You cannot copyright an idea. The best you can do is copyright your specific work based on an idea (this is called the idea/expression distinction in copyright law). So, for example, you might not be able to copyright the idea of "a story where two people from different, competing families or communities fall in love"…but you can (well, the writers can) copyright the words and music to West Side Story or The Fantasticks. Note that these are both generally considered to be based on Shakespeare's Romeo and Juliet, which itself had earlier incarnations, like the Greek myth of Pyramus and Thisbe  –  which Shakespeare used again, in A Midsummer Night's Dream. That's my point: those are all very different expressions of the same basic "two households/star-crossed lovers" idea, and all of them could be separately copyrighted.

(Look up "Abie's Irish Rose" and "The Cohens and the Kellys" if you want to see more examples.)

That's Paul McCartney.

And that's John Lennon. Really.

Back to the analysis: the protections are somewhat more limited. You have primary control over copying and related actions. You get to say who can make copies of a work, display a work if it's artistic or a movie or the like, perform a work if it's a play, sell or give away copies, and make derivative works like sequels or retellings. However, there are all sorts of limits on that right. For example, if you own the copyright on an architectural work  –  if you designed a building  –  you still can't stop people from taking pictures of the actual building itself. The most famous limit says that it is not a violation of a copyright to make "fair use" of a work. What constitutes "fair use" depends on a bunch of factors like how much of the work you're using, whether you're making money from it, and why you're doing it  –  some purposes, such as education, news reporting, or critique, are more likely to be "fair". We'll discuss fair use again later, I promise.

Finally, the time period: the term of copyright is the life of the author plus seventy years. In the case that the "author" isn't a living person but a corporation (this is possible under what's called the "work for hire" provision, and applies to a lot of the most famous copyrights such as Mickey Mouse), copyright lasts for 120 years from creation or 95 years from first publication, whichever comes first. After that, the work enters the "public domain", and is free to be used by anybody, for any purpose.

Trademarks

A trademark is the right to control the use of a mark in association with a good or service.

The scope here is a "mark". This is a word, phrase, symbol, picture, or even sound  –  NBC's chimes are trademarked  –  that is used with a good or service to identify the source of origin.

The protection is "use in association with a good or service". When you get a trademark, you get it for the specific thing you make, or job you do. If people put your mark on the same or similar stuff they're selling, you can stop them. Also, if they use your trademark in a way that will hurt the brand recognition of your stuff with your consumers, what's called "diluting" your trademark, you can stop them. Trademark law protects against falsely claiming where stuff comes from, or damaging people's brand recognition of your mark.

No, not that sort of Brand…

This has the most varied limitations and factors. How much you can stop people from using or diluting your mark can depend on a few factors: one is the "strength" of your mark, which is whether it means something apart from as your trademark. "Kodak" is considered very strong, because it doesn't mean anything except the trademark. "Apple" has meaning outside the trademark, but only a few trademarks, one of which is very recognizable, so that's considered somewhat strong. "Delta" has a bunch of non-trademark meanings, and a number of distinct trademarks (a faucet company and an airline, to name just two), so those are on the weak side.

Mark strength can change, too. If trademarks become sufficiently weak, they can end up not being trademarks anymore. "Band-Aid" and "Kleenex" are technically still trademarks for adhesive bandages and tissues, but they're in danger of becoming just the generic terms, which you use whether you're talking about Band-Aid Brand Adhesive Bandages and Kleenex Brand Facial Tissues, or the off-brand stuff you got at the drugstore. (Because this sort of thing is more thoroughly policed in TV dialogue than everyday speech, you'll occasionally hear very clunky script dialogue regarding trademarked names, like "Do a Google search on it" instead of "Google it", or, infamously, "I am stuck on Band-Aid Brand…") Don't even get me started on "Coke", especially in the American Southeast.

"I'd like to teach the world to remember a famous commercial…"

Another factor is the fame of your mark. The McDonald's "Golden Arches" are probably one of the strongest trademarks in the world, because they're so recognizable. Even if McDonald's doesn't sell a given product, if someone else who isn't Mickey D's uses the Golden Arches on basically anything, people will think it's from the "real" McDonald's, and like I said, trademarks protect falsely claiming where stuff comes from. So that will be infringement.

Given that it's the weakest form of protection  –  because you can only stop some things under some circumstances  –  trademarks have the longest term: as long as you continue to use and defend your trademark.

And we're done.

No, not really. Next, I'm going to discuss some of the issues in IP law, especially public-facing ones, especially in copyright.