History

The Statute of Monopoly (1624) and the British Statute of Anne (1710) are seen as the origin of patent law and copyright respectively, ^[4] firmly establishing the concept of intellectual property.

The first Known use of the term intellectual property dates to 1769. When a piece published in the Monthly Review used the sentence. ^[5] The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays. ^[6]

The German equivalent was used with the founding of the North German Confederation, whose constitution granted legislative power over the protection of intellectual property ( Schutz des geistigen Eigentums ) to the Confederation. ^[7] When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Offices for the Protection of Intellectual Property .

The organization 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 was first used in the United States (which had not been a party to the Berne Convention), ^[3] and it was Bayh-Dole Act in 1980. ^[8]

“The history of patents does not begin with inventions Rather goal with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges … Approximately 200 Years After the end of Elizabeth’s reign, HOWEVER, has obvious Represents a legal right Obtained by the inventor providing for exclusive control over the production of … [demonstrating] the evolution of patents from royal prerogative to common-law doctrine. ” ^[9]

The Court Circuit 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 the intellectual property, the labors of the mind, production and interests are as much a man’s own … as wheat growers, or the flocks he rears . ” ^[10] The statement that “discoveries are … property” goes back earlier. Section 1 of the English law of 1791 stated, “All new discoveries are the property of the author; to assure the inventor of the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years. ” ^[11] In Europe,author A. Nion mentioned Intellectual Property in his Civil Rights of Authors, Artists and Inventors , published in 1846.

Until recently, the purpose of intellectual property law has been to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope. ^[12]

The concept’s origins can be traced back further. The law of the land and the law of the land and of the land of the land of the land of the land of the land of the land. publisher (but not author) copyright in the 16th century. ^[13] In 500 BCE, the government of the Sybaris offered one year’s patent “to all who should discover any new refinement in luxury”. ^[14]

According to Morin, “the global intellectual property regime is currently in the midst of a paradigm shift”. ^[15]Indeed, up until the early 2000s the global IP system used to be dominated by high standards of protection of IP laws from Europe or the United States, with a view that uniform application of these standards over social, cultural or environmental values ​​or the national level of economic development. Morin argues that “the emerging discourse of the global IP regime advocates for greater policy fl exibility and greater access to knowledge, especially for developing countries.” Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO’s activities to the specific needs of developing countries and especially to distortion^[16] However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level. ^[17]

Intellectual property rights

Intellectual property rights include patents , copyright , industrial design rights , trademarks , plant variety rights , trade dress , geographical indications , ^[18] and certain trade secrets . There are more aussi Specialized gold derived varieties of sui generis exclusive rights, Such As circuit design rights (called Expired mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting em) and database rights (inEuropean law ).

Patents

A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others by making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific problem, which may be a product of a process or a process that has been developed in the past. ^{[19] : 17}

Copyright

A copyright Gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”. ^[20] [21] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed. ^[22]

Industrial design rights

An industrial design right (sometimes called “design right” or ” patent design ” ) protects the visual design of objects that are not just utilitarian. An industrial design consists of the creation of a shape, pattern or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft.

Plant varieties

Plant breeders’ rights or a plant variety. The variety is inseparable

Trademarks

A trademark is a recognizable sign , design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders. ^{[23] [24] [25]}

Trade dress

This article is about a product that is related to a product or a product of the product (or even the design of a building). ^[26]

Trade secrets

A trade secret is a formula , practice, process, design , instrument, pattern , or compilation of information which is known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; Each business must take measures to protect its own trade secrets (eg, Formula for Coca-Cola.)

Objectives of Intellectual Property Law

The stated objective of most intellectual property law (with the exception of trademarks) is to “Promote progress.” ^[27] By exchanging limited proprietary rights for disclosure and the creation of patents, copyright, and copyright. Some commentators have noted that the objective of intellectual property laws and those who support its implementation appears to be “absolute protection”. “If they want to innovate, they are more likely to be able to innovate.”This absolute protection or full value view is another property of “real” property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the United States Invents Act , stress international harmonization. A lot of things have been done to protect cultural heritage, including the intangible ones, and the benefits of commodification derived from this possibility. ^[28] The issue still remains open in legal scholarship.

Financial incentive

These exclusive rights allow owners of intellectual property to benefit from the property They Have created, providing good a financial incentive for the establishment of an investment in intellectual property, and, in case of patents, pay associated research and development costs. ^[29] In the United States, Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads; “[The Congress shall have power] ‘” ^[30] David , Some commentators, such as David Levine and Michele Boldrin , dispute this justification.^[31]

In 2013 the United States Patent & Trademark Office is estimated to be worth more than US $ 5 trillion and creates employment for an estimated 18 million American people. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union. ^[32] In the UK, IP has become a recognizable asset class for use in pension funding and other types of business finance. However, in 2013, the UK Intellectual Property Office stated: “There are millions of intangible business assets whose value is not being lifted at all, or only being leveraged inadvertently”. ^[33]

Economic growth

The WIPO treaty and several related international agreements under the protection of intellectual property is essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the application of its results and to promote fair trading which would contribute to economic and social development. ^[34]

The Anti-Counterfeiting Trade Agreement (ACTA) states that “effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally”. ^[35]

Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets. ^[36] “IP-intensive industries” are estimated to generate 72 percent more value added than “non-IP-intensive industries”. ^{[37] [ dubious – discuss ]}

Joined research project of the WIPO and the United Nations University measuring the impact of IP systems is six Asian countries found “a positive correlation entre les Strengthening of the IP system and subsequent economic growth.” ^[38]

Morality

According to Article 27 of the Universal Declaration of Human Rights , “everyone has the right to the protection of the moral and the result of any scientific research, literary or artistic production of which he is the author”. ^[39] Although the relationship between intellectual property and human rights is a complex, ^[40] there are moral arguments for intellectual property.

The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argues that intellectual property is justified based on deservedness and hard work. ^[41]

Various moral justifications for private property may be used to argue in favor of the morality of intellectual property, such as:

1. Natural Rights / Justice Argument : This argument is based on the fact that a person has a natural right to work and / or products that is produced by his / her body. Appropriating these products is viewed as unjust. ALTHOUGH Locke HAD never Explicitly Stated That natural right applied to products of the mind, ^[42] it is possible to apply to His argument to intellectual property rights, in qui It Would be unjust for people to misuse Reviews another’s ideas. ^[43] Locke’s argument for intellectual property is based on the idea that laborers have the right to control which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property provides this right when it comes to production.
2. Utilitarian-Pragmatic Argument : According to this rationale, a society is more effective and prosperous than societies that do not. Innovation and invention in the 19th century America has been attributed to the development of the patent system. ^[44] Providing innovators with “sustainable and tangible return on their investment of time, labor, and other resources”. ^[45] The presumption is that they promote public welfare by encouraging the “creation, production, and distribution of intellectual works”. ^[45]Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility.
3. “Personality” Argument : This argument is based on a quote from Hegel : “Every man has the right to turn his or her head” recreate it as his own “. ^[46] European intellectual property law is shaped by this notion that ideas are an extension of oneself and one’s personality. ^[47] Personality theorists argue that being a creator of something is inherently at risk and vulnerable for having their ideas and designs stolen and / or altered. Intellectual property protects those morals that have to do with personality.

Lysander Spooner (1855) argues that “a man has a natural and absolute right and a natural and absolute, then necessarily a perpetual, right-of property, in the ideas, of which he is the discoverer or creator; of property, in ideas, is intrinsically the same, and stands on identically the same grounds with, its right of property in material things that no distinction, of principle, exists between the two cases “. ^[48]

Ayn Rand Writer in his book Capitalism: The Unknown A moral issue. The belief is that the human mind is the source of wealth and survival of its property. To violate intellectual property is not a criminal offense. ^[49]

Infringement, Misappropriation, and Enforcement

Infringement of intellectual property rights, “infringement” with respect to patents, copyright, and trademarks, and “misappropriation” with respect to trade secrets, may be a breach of civil law or criminal law, jurisdiction, and the nature of the action.

As of 2011 trade in counterfeit copyrighted and trademarked works was $ 600 billion worldwide and accounted for 5-7% of global trade. ^[50]

Patent infringement

Patent infringement is typically caused by using or selling a patented invention. The scope of the patented invention or the extent of protection ^[51] is defined in the claims of the granted patent. There is safe harbor in many jurisdictions to use a patented invention for research. This safe harbor does not exist in the US unless the research is done for the purpose of pure pharmaceutical application. ^[52]In general, these laws are handled under civil law (eg, in the United States) but also in Argentina (China, China, France, Japan, Russia, South Korea). ^[53]

Copyright infringement

Copyright infringement is reproducing, distributing, displaying or performing a work , or to make derivative works , without permission from the copyright holder, which is typically a publisher or other business representative or assigned by the work’s creator. It is often called “piracy”. ^[54] While copyright is created the case is a work of art, the copyright holder can only get money damages if the owner registers the copyright. ^{[ citation needed ]} Enforcement of copyright of the copyright holder. ^[55] The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the United States, which has not entered into force, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligated the parties to active font for infringement. ^[50] [56] There are limitations and exceptions to copyright , which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement

Trademark infringement occurs when it is used in the same way as in a similar or similar form to a trademark owned by another party. In many countries, a register receipt pour protection. Infringement can be addressed by civil litigation and, in several jurisdictions, under criminal law. ^[50] [56]

Trade secret misappropriation

Trade secret secrets, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy, secrecy In the United States, trade secrets are protected under state law, and the United States has almost universally adopted the Uniform Trade Secrets Act . The United States also has federal law in the form of the Economic Espionage Act of 1996 ( 18 USC  §§ 1831 – 1839 ), which makes theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two spells of activity. The first, 18 USC  § 1831 (a), criminalizes the theft of trade secrets to foreign powers. The second, 18 USC  § 1832 , criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) In Commonwealth common law jurisdictions, confidentiality and trade secrets are Regarded as an equitable right Rather than a propertyright goal penalties for theft are Roughly la même as in the United States. ^{[ quote needed ]}

Criticisms

The term “intellectual property”

Criticism of the term intellectual property ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like property and rights in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.^[57]

Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because 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” and that it creates a “bias” by confusing these monopolies with ownership of limited physical things, likening them to “property rights”.^[58] Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. He argues that “to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of ‘intellectual property’.”^[59]

Similarly, economists Boldrin and Levine prefer to use the term “intellectual monopoly” as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights.^[60]

On the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers.^[61]Still referring to copyright, he cites legal literature such as the United States Constitution and case law to demonstrate that the law is meant to be an optional and experimental bargain to temporarily trade property rights and free speech for public, not private, benefits in the form of increased artistic production and knowledge. He mentions that “if copyright were a natural right nothing could justify terminating this right after a certain period of time”.^[62]

Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, has criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).^[63][64] Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella HAS OBJECTED to intellectual property on the grounds que la word “property” Implies scarcity, qui May not be applicable to ideas. ^[65]

Entrepreneur and politician Rickard Falkvinge and hacker Alexandre Oliva -have indépendamment Compared George Orwell’s fictional dialect Newspeak to the terminology used by intellectual property fans have a linguistic weapon to copyright Regarding public opinion and shape debate DRM . ^[66] [67]

Alternative terms

In civil law jurisdictions, intellectual Property Has beens Often Referred to as intellectual rights , traditionally has Somewhat Broader concept That HAS included moral rights and other personal protective That can not 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.

Alternative terms monopolies on information and intellectual monopoly, which argues against the “property” or “intellect” or “rights” assumptions, notably Richard Stallman . The backronyms intellectual protectionism and intellectual poverty , ^[68] whose initials are also IP , have found supporters, especially those who have used the backronym digital restrictions management . ^[69] [70]

The argument that an intellectual property right should be privileged (IMP) has been advanced by several academics including Birgitte Andersen ^[71] and Thomas Alured Faunce . ^[72]

Objections to overbroad intellectual property laws

Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:

Overall, the weight of the existing historical evidence suggests that policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patents to encourage and encourage innovation. ^[79]

Peter Drahos notes, “Property rights confer authority over resources. . ” ^{[80] : 13}

The World Intellectual Property Organization (WIPO) recognizes the existence of these conflicts and their existence. ^[81] In 2001 the UN Committee on Economic, Social and Cultural Rightsissued a document called “Human Rights and Intellectual Property”, which argued that it was a social and economic property. in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so, they are infringing upon the human right to food and health, and to cultural participation and scientific benefits. ^[82][83] In 2004 the General Assembly of WIPO adopted the Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should “focus more on the needs of developing countries, and to view IP as one of many tools for development- not as an end in itself “. ^[84]

Further along these lines, The ethical problems brought about by IP rights are most relevant when they are socially valuable. While the application of IPO can not be more expensive than the cost of production, the cost of production can not be reduced. life-saving drug. ^[85] “An IPR driven system is therefore not a system that is conducive to the investment of R & D products that are socially valuable to predominately poor populations”. ^{[85] : 1108-9}

Some libertarian critics of intellectual property -have argued That Allowing property rights in ideas and information Creates artificial scarcity and infringes on the right to own tangible property. Stephan Kinsella uses the following scenario to argue this point:

[I] magine the time when men lived in cellars. One bright guy-let’s call him Galt-Magnon-decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building their own land, with their own logs, or to charge them a fee if they do build houses. It is a landmark in the nature of a landowner (eg, land and logs) of others, but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule,^[86]

Thomas Jefferson said in a letter to Isaac McPherson on August 13, 1813:

“If nature has made any one thing, it is the action of the thinking power called an idea, which an independant It is one of the possessions of each one of them, and it is one of the possessions of the lesser, because every other possesses the whole of it. , Receives instruction himself without lessening mine; as he Who lights His tap at mine Receives light without darkening me. ” ^[87]

In 2005 the RSA launched the Adelphi Charter , aiming at creating an international policy statement. ^[88]

Another aspect of current US Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in ‘original’ works of authorship. ^[89]

Expansion in nature and scope of intellectual property laws

Other criticism of intellectual property law relating to the expansion of intellectual property, both in duration and in scope.

In addition, science and technology have been developed and developed for IP protection for new technologies. Patents have been granted for living organisms, ^[90] and in the United States, certain living organisms have been patentable for over a century. ^[91]

The increase in terms of protection is particularly prevalent in the United States and Europe . ^{[63] [92] [93] [94] [95]} With no need for registration copyright gold records, this is thought to-have led to an Increase in orphan works (copyrighted works for qui the copyright owner can not be contacted), has problem that has been noticed and addressed by governmental bodies around the world. ^[96]

Also with respect to copyright, the American film industry helped to change the social construct of intellectual property through its 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 has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed that people are entitled to be produced by their labor. Additional information Congresses of the position of the United States as the world’s largest producer of films has made it convenient to expand the concept of intellectual property. ^[97]These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority. ^[98]

The growth of the Internet , Kazaa and Gnutella , have represented a challenge for copyright policy. The Recording Industry Association of America , in particular, on the front lines of the fight against copyright infringement , which the industry calls “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. The electronic age has seen an increase in the use of software-based digital rights managementtools to restrict the copying and use of digitally based works. Laws such as the Digital Millennium Copyright Act has been enacted that uses criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection for the United States, and to be expanded, for example, Article 6 and 7 the Copyright Directive . Article 7 of the Software Directive of 1991 (91/250 / EEC) and the Conditional Access Directive of 1998 (98/84 / EEC). This can hinder legal uses, Affecting public domain works, limitations and exceptions to copyright , or uses allowed by the copyright holder. Somecopyleft licenses, like GNU GPL 3 , are designed to counter that. ^[99] Laws may permit circumvention under specific conditions when it is necessary to achieve interoperability with the circumventor’s program, or for accessibility reasons; however, distribution of circumvention tools may be illegal.

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 ratified in 1994, which formalized regulations handled by common law, or not at all, in member states. Pursuant to TRIPs, any sign which is capable of distinguishing the products or services of one or more of the other business is capable of constituting a trademark. ^[100]

See also

• Information policy
• Industrial property
• Freedom of information
• Libertarianism and intellectual property

References

Quotes