INTELLECTUAL PROPERTY



A major component of what many posit is the emerging knowledge economy, intellectual property consists of items that represent the expression of ideas or intellectual pursuits and that are assigned certain rights of property. It is an intangible creation of the human mind usually expressed or translated into a tangible form. Examples of intellectual property include an author's copyright on a book or article, a distinctive logo design representing a soft drink company and its products, or a patent on the process to manufacture chewing gum. Intellectual property law covers the protection of copyrights, patents, trademarks, and trade secrets, as well as other legal areas such as unfair competition. Patents, trademarks, and similar business-oriented creations are sometimes known as industrial property.

The concept of intellectual property developed and evolved through its individual components. There is no history of intellectual property per se, but the history of trademarks, for example, extends back to the medieval period.

The laws protecting intellectual property in the United States exist at both the state and federal level. State laws cover a broad spectrum of intellectual property fields from trade secrets to the right of publicity. Laws differ somewhat from state to state. At the federal level, the Constitution and legislation cover patents, copyrights, and trademarks and related areas of unfair competition.

U.S. intellectual property laws were most recently modified through the Digital Millennium Copyright Act of 1998, which granted broader and more explicit protections to information on digital media, notably movies on digital versatile discs (DVD) and sound recordings. Greater protection of industrial designs was another provision of the legislation. The act also ratified the World Intellectual Property Organization (WIPO) Copyright Treaty and the WIPO Performances and Phonograms Treaty, two major new international treaties.

INTERNATIONAL PROTECTION

Intellectual property is recognized internationally through a system of treaties and international organizations. The most important organization is the World Intellectual Property Organization (WIPO), a special agency of the United Nations. Founded in 1967, the Geneva-based organization administers most of the current international treaties concerning intellectual property issues. The World Trade Organization, a trade dispute resolution and trade negotiation body founded in 1995, is also involved in certain intellectual property matters.

PARIS CONVENTION.

In the late 19th century, intellectual property protection at an international level became an important issue in trade and tariff negotiations and has remained so ever since. One of the first international treaties relating to intellectual property in the broadest sense was the International Convention for the Protection of Industrial Property, commonly known as the Paris Convention. First signed in 1883, the Paris Convention provided protection for such properties as patents, industrial models and designs, trademarks, and trade names. As of 1998, 151 countries had signed the Paris Convention, including several nations such as China that are often cited publicly as poor enforcers of intellectual property rights.

Two of the most important provisions of the treaty relate to the right of national treatment and the right of priority. The right of national treatment ensures that those individuals seeking a patent or trademark in another Convention country will not be discriminated against and will receive the same rights as a citizen of that country. The right of priority provides an inventor one year from the date of filing a patent application in his or her home country (six months for a trademark or design application) the right to file an application in a foreign country. The legal, effective date of application in the foreign country is then retroactively the legal, effective filing date in the home country, provided the application is made within the protection period. If the invention is made public prior to filing the home country application, however, the right of priority in a foreign country is no longer applicable.

The Paris Convention is supported by a number of additional treaties that provide for protection and registration of industrial property. Among the most important are the Madrid Agreement Concerning the International Registration of Marks (1891), the Patent Cooperation Treaty (1970), and the Hague Agreement Concerning the International Deposit of Industrial Designs (1925).

BERNE CONVENTION.

The central international agreement on copyright protection is the Berne Convention for the Protection of Literary and Artistic Works (1886). As of 1998, 133 nations were party to this agreement. The Berne Convention outlines principles of protection similar to those of the Paris Convention: 1) member states enforce copyrights originating in other member states; 2) copyright protection is automatic and not dependent on formalities of registration; 3) protection of a work in one country is independent of its protection status in its country of origin (until the minimum period of protection expires).

WIPO COPYRIGHT TREATY.

Because older copyright conventions were ambiguous concerning how computer software and electronic information would be protected, the World Intellectual Property Organization Copyright Treaty was concluded in 1996 to clarify the protections for ideas expressed via electronic media. This agreement was intended to eliminate potential loopholes and uncertainties regarding the protection of intellectual creations on electronic media and their various modes of dissemination, including the Internet. As of 1999 the treaty was not yet in effect because it hadn't been ratified by a sufficient number of countries.

OPPOSING PERSPECTIVES

Various industry and professional groups disagree about the ideal levels of intellectual property protection. Parties that tend to hold copyrights or patents, such as publishers, recording labels, and innovative manufacturers, usually favor strong property rights and stiff penalties for violators. Meanwhile, some users of copyrighted or patented goods, including consumers, libraries, and educators, favor looser regulations so that one party's commercial interests don't override the fair use and intellectual freedom of others. A number of free-speech advocates go further, suggesting that copyrights shouldn't be viewed as property at all, but as protected free speech that cannot be censored economically or otherwise.

SEE ALSO : Intangible Assets ; Intellectual Capital

FURTHER READING:

Elias, Stephen, and Lisa Goldoftas. Patent, Copyright & Trademark: A Desk Reference to Intellectual Property Law. 2nd ed. Berkeley: Nolo Press, 1997.

Guthrie, Lawrence S., III. "Copyright: Free Speech or Property Right?" Information Outlook, August 1997.

Miller, Arthur R., and Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright in a Nutshell. 2nd ed. St. Paul, MN: West/Wadsworth, 1990.

Reid, Calvin. "AAP Hails WIPO Bills; Libraries, Consumer Groups Voice Opposition." Publishers Weekly, 22 September 1997.

Roos, Johan, ed. Intellectual Capital: Navigating in the New Business Landscape. New York: New York University Press, 1998.

World Intellectual Property Organization. "What Is WIPO?" Geneva, Switzerland, 1998. Available from www.wipo.org .



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