intellectual property law essay

Intellectual Property Law Research Paper Topics

Welcome to the realm of intellectual property law research paper topics , where we aim to guide law students on their academic journey by providing a comprehensive list of 10 captivating and relevant topics in each of the 10 categories. In this section, we will explore the dynamic field of intellectual property law, encompassing copyrights, trademarks, patents, and more, and shed light on its significance, complexities, and the diverse array of research paper topics it offers. With expert tips on topic selection, guidance on crafting an impactful research paper, and access to iResearchNet’s custom writing services, students can empower their pursuit of excellence in the domain of intellectual property law.

100 Intellectual Property Law Research Paper Topics

Intellectual property law is a dynamic and multifaceted field that intersects with various sectors, including technology, arts, business, and innovation. Research papers in this domain allow students to explore the intricate legal framework that governs the creation, protection, and enforcement of intellectual property rights. To aid aspiring legal scholars in their academic pursuits, this section presents a comprehensive list of intellectual property law research paper topics, categorized to encompass a wide range of subjects.

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• Fair Use Doctrine: Balancing Creativity and Access to Knowledge
• Copyright Infringement in the Digital Age: Challenges and Solutions
• The Role of Copyright Law in Protecting Creative Works of Art
• The Intersection of Copyright and AI: Legal Implications and Challenges
• Copyright and Digital Education: Analyzing the Impact of Distance Learning
• Copyright and Social Media: Addressing Infringement and User Rights
• Copyright Exceptions for Libraries and Educational Institutions
• Copyright Law and Virtual Reality: Emerging Legal Issues
• Copyright and Artificial Intelligence in Music Creation
• Copyright Termination Rights and Authors’ Works Reversion
• Patentable Subject Matter: Examining the Boundaries of Patent Protection
• Patent Trolls and Innovation: Evaluating the Impact on Technological Advancement
• Biotechnology Patents: Ethical Considerations and Policy Implications
• Patent Wars in the Pharmaceutical Industry: Balancing Access to Medicine and Innovation
• Standard Essential Patents: Analyzing the Role in Technology Development and Market Competition
• Patent Thickets and the Challenges for Startups and Small Businesses
• Patent Pooling and Collaborative Innovation: Advantages and Legal Considerations
• Patent Litigation and Forum Shopping: Analysis of Jurisdictional Issues
• Patent Law and Artificial Intelligence: Implications for Inventorship and Ownership
• Patent Exhaustion and International Trade: Legal Complexities in Global Markets
• Trademark Dilution: Protecting the Distinctiveness of Brands in a Global Market
• Trademark Infringement and the Online Environment: Challenges and Legal Remedies
• The Intersection of Trademark Law and Freedom of Speech: Striking a Balance
• Non-Traditional Trademarks: Legal Issues Surrounding Sound, Color, and Shape Marks
• Trademark Licensing: Key Considerations for Brand Owners and Licensees
• Trademark Protection for Geographical Indications: Preserving Cultural Heritage
• Trademark Opposition and Cancellation Proceedings: Strategies and Legal Considerations
• Trademark Law and Counterfeiting: Global Enforcement Challenges
• Trademark and Domain Name Disputes: UDRP and Legal Strategies
• Trademark Law and Social Media Influencers: Disclosure and Endorsement Guidelines
• Trade Secrets vs. Patents: Choosing the Right Intellectual Property Protection
• Trade Secret Misappropriation: Legal Protections and Remedies for Businesses
• Protecting Trade Secrets in the Digital Age: Cybersecurity Challenges and Best Practices
• International Trade Secret Protection: Harmonization and Enforcement Challenges
• Whistleblowing and Trade Secrets: Balancing Public Interest and Corporate Secrets
• Trade Secret Licensing and Technology Transfer: Legal and Business Considerations
• Trade Secret Protection in Employment Contracts: Non-Compete and Non-Disclosure Agreements
• Trade Secret Misappropriation in Supply Chains: Legal Implications and Risk Mitigation
• Trade Secret Law and Artificial Intelligence: Ownership and Trade Secret Protection
• Trade Secret Protection in the Era of Open Innovation and Collaborative Research
• Artificial Intelligence and Intellectual Property: Ownership and Liability Issues
• 3D Printing and Intellectual Property: Navigating the Intersection of Innovation and Copyright
• Blockchain Technology and Intellectual Property: Challenges and Opportunities
• Digital Rights Management: Addressing Copyright Protection in the Digital Era
• Open Source Software Licensing: Legal Implications and Considerations
• Augmented Reality and Virtual Reality: Legal Issues in Content Creation and Distribution
• Internet of Things (IoT) and Intellectual Property: Legal Challenges and Policy Considerations
• Big Data and Intellectual Property: Privacy and Data Protection Concerns
• Artificial Intelligence and Patent Offices: Automation and Efficiency Implications
• Intellectual Property Implications of 5G Technology: Connectivity and Innovation Challenges
• Music Copyright and Streaming Services: Analyzing Legal Challenges and Solutions
• Fair Use in Documentary Films: Balancing Copyright Protection and Freedom of Expression
• Intellectual Property in Video Games: Legal Issues in the Gaming Industry
• Digital Piracy and Copyright Enforcement: Approaches to Tackling Online Infringement
• Personality Rights in Media: Balancing Privacy and Freedom of the Press
• Streaming Services and Copyright Licensing: Legal Challenges and Royalty Distribution
• Fair Use in Parody and Satire: Analyzing the Boundaries of Creative Expression
• Copyright Protection for User-Generated Content: Balancing Authorship and Ownership
• Media Censorship and Intellectual Property: Implications for Freedom of Information
• Virtual Influencers and Copyright: Legal Challenges in the Age of AI-Generated Content
• Intellectual Property Protection in Developing Countries: Promoting Innovation and Access to Knowledge
• Cross-Border Intellectual Property Litigation: Jurisdictional Challenges and Solutions
• Trade Agreements and Intellectual Property: Impact on Global Innovation and Access to Medicines
• Harmonization of Intellectual Property Laws: Prospects and Challenges for International Cooperation
• Indigenous Knowledge and Intellectual Property: Addressing Cultural Appropriation and Protection
• Intellectual Property and Global Public Health: Balancing Innovation and Access to Medicines
• Geographical Indications in International Trade: Legal Framework and Market Exclusivity
• International Licensing and Technology Transfer: Legal Considerations for Multinational Corporations
• Intellectual Property Enforcement in the Digital Marketplace: Comparative Analysis of International Laws
• Digital Copyright and Cross-Border E-Commerce: Legal Implications for Online Businesses
• Intellectual Property Strategy for Startups: Maximizing Value and Mitigating Risk
• Licensing and Franchising: Legal Considerations for Expanding Intellectual Property Rights
• Intellectual Property Due Diligence in Mergers and Acquisitions: Key Legal Considerations
• Non-Disclosure Agreements: Safeguarding Trade Secrets and Confidential Information
• Intellectual Property Dispute Resolution: Arbitration and Mediation as Alternative Methods
• Intellectual Property Valuation: Methods and Challenges for Business and Investment Decisions
• Technology Licensing and Transfer Pricing: Tax Implications for Multinational Corporations
• Intellectual Property Audits: Evaluating and Managing IP Assets for Businesses
• Trade Secret Protection and Non-Compete Clauses: Balancing Employer and Employee Interests
• Intellectual Property and Startups: Strategies for Funding and Investor Relations
• Intellectual Property and Access to Medicines: Ethical Dilemmas in Global Health
• Gene Patenting and Human Dignity: Analyzing the Moral and Legal Implications
• Intellectual Property and Indigenous Peoples: Recognizing Traditional Knowledge and Culture
• Bioethics and Biotechnology Patents: Navigating the Intersection of Science and Ethics
• Copyright, Creativity, and Freedom of Expression: Ethical Considerations in the Digital Age
• Intellectual Property and Artificial Intelligence: Ethical Implications for AI Development and Use
• Genetic Engineering and Intellectual Property: Legal and Ethical Implications
• Intellectual Property and Environmental Sustainability: Legal and Ethical Perspectives
• Cultural Heritage and Intellectual Property Rights: Preservation and Repatriation Efforts
• Intellectual Property and Social Justice: Access and Equality in the Innovation Ecosystem
• Innovation Incentives and Intellectual Property: Examining the Relationship
• Intellectual Property and Technology Transfer: Promoting Innovation and Knowledge Transfer
• Intellectual Property Rights in Research Collaborations: Balancing Interests and Collaborative Innovation
• Innovation Policy and Patent Law: Impact on Technology and Economic Growth
• Intellectual Property and Open Innovation: Collaborative Models and Legal Implications
• Intellectual Property and Startups: Fostering Innovation and Entrepreneurship
• Intellectual Property and University Technology Transfer: Challenges and Opportunities
• Open Access and Intellectual Property: Balancing Public Goods and Commercial Interests
• Intellectual Property and Creative Industries: Promoting Cultural and Economic Development
• Intellectual Property and Sustainable Development Goals: Aligning Innovation with Global Priorities

The intellectual property law research paper topics presented here are intended to inspire students and researchers to delve into the complexities of intellectual property law and explore emerging issues in this ever-evolving field. Each topic offers a unique opportunity to engage with legal principles, societal implications, and practical challenges. As the landscape of intellectual property law continues to evolve, there remains an exciting realm of uncharted research areas, waiting to be explored. Through in-depth research and critical analysis, students can contribute to the advancement of intellectual property law and its impact on innovation, creativity, and society at large.

Exploring the Range of Topics in Human Rights Law

Human rights law is a vital field of study that delves into the protection and promotion of fundamental rights and freedoms for all individuals. As a cornerstone of international law, human rights law addresses various issues, ranging from civil and political rights to economic, social, and cultural rights. It aims to safeguard the inherent dignity and worth of every human being, regardless of their race, religion, gender, nationality, or other characteristics. In this section, we will explore the diverse and expansive landscape of intellectual property law research paper topics, shedding light on its significance and the vast array of areas where students can conduct meaningful research.

• Historical Perspectives on Human Rights : Understanding the historical evolution of human rights is essential to comprehend the principles and norms that underpin modern international human rights law. Research papers in this category may explore the origins of human rights, the impact of significant historical events on the development of human rights norms, and the role of key figures and organizations in shaping the human rights framework.
• Human Rights and Social Justice : This category delves into the intersection of human rights law and social justice. Intellectual property law research paper topics may encompass the role of human rights in addressing issues of poverty, inequality, discrimination, and marginalization. Researchers can analyze how human rights mechanisms and legal instruments contribute to advancing social justice and promoting inclusivity within societies.
• Gender Equality and Women’s Rights : Gender equality and women’s rights remain crucial subjects in human rights law. Research papers in this area may explore the legal protections for women’s rights, the challenges in achieving gender equality, and the impact of cultural and societal norms on women’s human rights. Intellectual property law research paper topics may also address specific issues such as violence against women, gender-based discrimination, and the role of women in peacebuilding and conflict resolution.
• Freedom of Expression and Media Rights : The right to freedom of expression is a fundamental human right that forms the basis of democratic societies. In this category, researchers can examine the legal dimensions of freedom of expression, including its limitations, the role of media in promoting human rights, and the challenges in balancing freedom of expression with other rights and interests.
• Human Rights in Armed Conflicts and Peacebuilding : Armed conflicts have severe implications for human rights, necessitating robust legal frameworks for protection. Topics in this category may focus on humanitarian law, the rights of civilians during armed conflicts, and the role of international organizations in peacebuilding and post-conflict reconstruction.
• Refugee and Migration Rights : With the global refugee crisis and migration challenges, this category addresses the legal protections and challenges faced by refugees and migrants. Research papers may delve into the rights of asylum seekers, the principle of non-refoulement, and the legal obligations of states in providing humanitarian assistance and protection to displaced populations.
• Economic, Social, and Cultural Rights : Economic, social, and cultural rights are integral to human rights law, ensuring the well-being and dignity of individuals. Topics may explore the right to education, health, housing, and adequate standards of living. Researchers may also examine the justiciability and enforcement of these rights at national and international levels.
• Human Rights and Technology : The digital age presents new challenges and opportunities for human rights. Research in this category can explore the impact of technology on privacy rights, freedom of expression, and the right to access information. Intellectual property law research paper topics may also cover the use of artificial intelligence and algorithms in decision-making processes and their potential implications for human rights.
• Environmental Justice and Human Rights : Environmental degradation has significant human rights implications. Researchers can investigate the intersection of environmental protection and human rights, examining the right to a healthy environment, the rights of indigenous communities, and the role of human rights law in addressing climate change.
• Business and Human Rights : The responsibilities of corporations in upholding human rights have gained increasing attention. This category focuses on corporate social responsibility, human rights due diligence, and legal mechanisms to hold businesses accountable for human rights violations.

The realm of human rights law offers an expansive and dynamic platform for research and exploration. As the international community continues to grapple with pressing human rights issues, students have a unique opportunity to contribute to the discourse and advance human rights protections worldwide. Whether examining historical perspectives, social justice, gender equality, freedom of expression, or other critical areas, research in human rights law is a compelling endeavor that can make a positive impact on the lives of people globally.

How to Choose an Intellectual Property Law Topic

Choosing the right intellectual property law research paper topic is a crucial step in the academic journey of law students. Intellectual property law is a multifaceted and rapidly evolving field that covers a wide range of subjects, including patents, copyrights, trademarks, trade secrets, and more. With such diversity, selecting a compelling and relevant research topic can be both challenging and exciting. In this section, we will explore ten practical tips to help students navigate the process of choosing an engaging and impactful intellectual property law research paper topic.

• Identify Your Interests and Passion : The first step in selecting a research paper topic in intellectual property law is to identify your personal interests and passion within the field. Consider what aspects of intellectual property law resonate with you the most. Are you fascinated by the intricacies of patent law and its role in promoting innovation? Or perhaps you have a keen interest in copyright law and its influence on creative expression? By choosing a topic that aligns with your passions, you are more likely to stay motivated and engaged throughout the research process.
• Stay Updated on Current Developments : Intellectual property law is a dynamic area with continuous developments and emerging trends. To choose a relevant and timely research topic, it is essential to stay updated on recent court decisions, legislative changes, and emerging issues in the field. Follow reputable legal news sources, academic journals, and intellectual property law blogs to remain informed about the latest developments.
• Narrow Down the Scope : Given the vastness of intellectual property law, it is essential to narrow down the scope of your research paper topic. Focus on a specific subfield or issue within intellectual property law that interests you the most. For example, you may choose to explore the legal challenges of protecting digital copyrights in the music industry or the ethical implications of gene patenting in biotechnology.
• Conduct Preliminary Research : Before finalizing your research paper topic, conduct preliminary research to gain a better understanding of the existing literature and debates surrounding the chosen subject. This will help you assess the availability of research material and identify any gaps or areas for further exploration.
• Review Case Law and Legal Precedents : In intellectual property law, case law plays a crucial role in shaping legal principles and interpretations. Analyzing landmark court decisions and legal precedents in your chosen area can provide valuable insights and serve as a foundation for your research paper.
• Consult with Professors and Experts : Seek guidance from your professors or intellectual property law experts regarding potential intellectual property law research paper topics. They can offer valuable insights, suggest relevant readings, and provide feedback on the feasibility and relevance of your chosen topic.
• Consider Practical Applications : Intellectual property law has real-world implications and applications. Consider choosing a research topic that has practical significance and addresses real challenges faced by individuals, businesses, or society at large. For example, you might explore the role of intellectual property in facilitating technology transfer in developing countries or the impact of intellectual property rights on access to medicines.
• Analyze International Perspectives : Intellectual property law is not confined to national boundaries; it has significant international dimensions. Analyzing the differences and similarities in intellectual property regimes across different countries can offer a comparative perspective and enrich your research paper.
• Propose Solutions to Existing Problems : A compelling research paper in intellectual property law can propose innovative solutions to existing problems or challenges in the field. Consider focusing on an area where there are unresolved debates or conflicting interests and offer well-reasoned solutions based on legal analysis and policy considerations.
• Seek Feedback and Refine Your Topic : Once you have narrowed down your research paper topic, seek feedback from peers, professors, or mentors. Be open to refining your topic based on constructive criticism and suggestions. A well-defined and thoughtfully chosen research topic will set the stage for a successful and impactful research paper.

Choosing the right intellectual property law research paper topic requires careful consideration, passion, and a keen awareness of current developments in the field. By identifying your interests, staying updated on legal developments, narrowing down the scope, conducting preliminary research, and seeking guidance from experts, you can select a compelling and relevant topic that contributes to the academic discourse in intellectual property law. A well-chosen research topic will not only showcase your expertise and analytical skills but also provide valuable insights into the complexities and challenges of intellectual property law in the modern world.

How to Write an Intellectual Property Law Research Paper

Writing an intellectual property law research paper can be an intellectually stimulating and rewarding experience. However, it can also be a daunting task, especially for students who are new to the intricacies of legal research and academic writing. In this section, we will provide a comprehensive guide on how to write an effective and impactful intellectual property law research paper. From understanding the structure and components of the paper to conducting thorough research and crafting compelling arguments, these ten tips will help you navigate the writing process with confidence and proficiency.

• Understand the Paper Requirements : Before diving into the writing process, carefully review the requirements and guidelines provided by your professor or institution. Pay attention to the paper’s length, formatting style (APA, MLA, Chicago/Turabian, Harvard, etc.), citation guidelines, and any specific instructions regarding the research paper topic or research methods.
• Conduct In-Depth Research : A strong intellectual property law research paper is built on a foundation of comprehensive and credible research. Utilize academic databases, legal journals, books, and reputable online sources to gather relevant literature and legal precedents related to your chosen topic. Ensure that your research covers a wide range of perspectives and presents a well-rounded analysis of the subject matter.
• Develop a Clear Thesis Statement : The thesis statement is the central argument of your research paper. It should be concise, specific, and clearly convey the main point you will be arguing throughout the paper. Your thesis statement should reflect the significance of your research topic and its contribution to the field of intellectual property law.
• Create an Outline : An outline is a roadmap for your research paper, helping you organize your thoughts and ideas in a logical and coherent manner. Divide your paper into sections, each representing a key aspect of your argument. Within each section, outline the main points you will address and the evidence or analysis that supports your claims.
• Introduction : Engage and Provide Context: The introduction of your research paper should captivate the reader’s attention and provide essential context for your study. Start with a compelling opening sentence or anecdote that highlights the importance of the topic. Clearly state your thesis statement and provide an overview of the main points you will explore in the paper.
• Literature Review : In the early sections of your research paper, include a literature review that summarizes the existing research and scholarship on your topic. Analyze the key theories, legal doctrines, and debates surrounding the subject matter. Use this section to demonstrate your understanding of the existing literature and to identify gaps or areas where your research will contribute.
• Legal Analysis and Argumentation : The heart of your intellectual property law research paper lies in your legal analysis and argumentation. Each section of the paper should present a well-structured and coherent argument supported by legal reasoning, case law, and relevant statutes. Clearly explain the legal principles and doctrines you are applying and provide evidence to support your conclusions.
• Consider Policy Implications : Intellectual property law often involves complex policy considerations. As you present your legal arguments, consider the broader policy implications of your research findings. Discuss how your proposed solutions or interpretations align with societal interests and contribute to the advancement of intellectual property law.
• Anticipate Counterarguments : To strengthen your research paper, anticipate potential counterarguments to your thesis and address them thoughtfully. Acknowledging and refuting counterarguments demonstrate the depth of your analysis and the validity of your position.
• Conclusion : Recapitulate and Reflect: In the conclusion of your research paper, recapitulate your main arguments and restate your thesis statement. Reflect on the insights gained from your research and highlight the significance of your findings. Avoid introducing new information in the conclusion and instead, offer recommendations for further research or policy implications.

Writing an intellectual property law research paper requires meticulous research, careful analysis, and persuasive argumentation. By following the tips provided in this section, you can confidently navigate the writing process and create an impactful research paper that contributes to the field of intellectual property law. Remember to adhere to academic integrity and proper citation practices throughout your research, and seek feedback from peers or professors to enhance the quality and rigor of your work. A well-crafted research paper will not only demonstrate your expertise in the field but also provide valuable insights into the complexities and nuances of intellectual property law.

iResearchNet’s Research Paper Writing Services

At iResearchNet, we understand the challenges that students face when tasked with writing complex and comprehensive research papers on intellectual property law topics. We recognize the importance of producing high-quality academic work that meets the rigorous standards of legal research and analysis. To support students in their academic endeavors, we offer custom intellectual property law research paper writing services tailored to meet individual needs and requirements. Our team of expert writers, well-versed in the intricacies of intellectual property law, is committed to delivering top-notch, original, and meticulously researched papers that can elevate your academic performance.

• Expert Degree-Holding Writers : Our team consists of experienced writers with advanced degrees in law and expertise in intellectual property law. They possess the necessary knowledge and research skills to create well-crafted research papers that showcase a profound understanding of the subject matter.
• Custom Written Works : We take pride in producing custom-written research papers that are unique to each client. When you place an order with iResearchNet, you can be assured that your paper will be tailored to your specific instructions and requirements.
• In-Depth Research : Our writers conduct thorough and comprehensive research to ensure that your intellectual property law research paper is well-supported by relevant legal sources and up-to-date literature.
• Custom Formatting : Our writers are well-versed in various citation styles, including APA, MLA, Chicago/Turabian, and Harvard. We will format your research paper according to your specified citation style, ensuring accuracy and consistency throughout the paper.
• Top Quality : We are committed to delivering research papers of the highest quality. Our team of editors reviews each paper to ensure that it meets the required academic standards and adheres to your instructions.
• Customized Solutions : At iResearchNet, we recognize that each research paper is unique and requires a tailored approach. Our writers take the time to understand your specific research objectives and create a paper that aligns with your academic goals.
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Intellectual Property Rights and Laws Essay

Introduction, works cited.

It is well known that the inventor of the specific machine, the author of a book, or a composer, one way or another, usually owns their work. This aspect leads to other specific consequences, and, probably, we are familiar with the fact that we cannot simply copy or buy a copy of the works of these authors without taking into account their rights. In equal measure, it seems natural that the original industrial samples of furniture, wall-papers, etc. are managed by someone or some organization.

Each time we buy such protected objects, the part of the price, which we pay, returns to owners as compensation for the time, the money, the efforts, and the thoughts, which they put in the creation of their works. Over time this led to the development of science, industry, music industry, which was being developed in the entire world; inspire new talents for the creation of ever more original ideas and articles. This paper shows some of the aspects that demonstrate the need for a better-managed law to protect intellectual property, which with the beginning of the electronic era has not to stop bringing controversies to the issue.

The rapid development of information and communication technologies led to the fact that everywhere in the world exceptional attention is given to the legal regime of intellectual property. The violation of intellectual property rights in the informational century reached unprecedented scales. The existing mechanisms of copyrights protection, trademarks, patents, software, databases today, cannot manage those problems, which are encountered everywhere in the world.

This becomes an especially difficult task under the conditions when making an electronic copy of a document or a file has never been easier and innovations and inventions are implemented with light speed and the information is distributed instantly and free of charge. Each country unavoidably encounters very knotty problems, and the matter reaches conducting of international, regional, or national reforms. In this case each time it is necessary to formulate the internal laws, which regulate relations in the sphere of intellectual property.

Looking at history, it can be seen that there already have been attempts to solve such problems legally. This includes a judicial precedent Universal City Studios, Inc., et al. v. Sony Corporation of America Inc. et al. et al. In 1976 it was one of the first attacks the American film and television industry evolve toward a new home video. At that time, after the first few unsuccessful attempts by SONY, has finally proposed the first VHS Betamax.

Therefore, the plaintiff – Universal and Walt Disney Productions, on behalf of the majority of Hollywood companies, filed a suit in court against SONY, which provided a tool for illegal copying on videocassettes and reviewing exclusive programs and films, broadcasted on television. Looking at today’s realities, we feel that we stand on the threshold of a new confrontation as in the distant 1976 where this court decision became the most cited in the intellectual property cases. (Samuelson 2006 101).

Now, between the younger generation who uses mostly the progress of new technologies associated primarily with the opportunities provided by Internet networks on the one hand, and media companies, which primarily feel the limitless possibilities of the developing new technologies and the related threat to their business on the other hand.

A serious shift to the side of creative solutions occurred with the advent of the phenomenon of Napster. American media companies rapidly sounded alarmed after filing a suit to the law court for violating copyrights by Napster. The Law court prohibited this activity of copying MP3 files. Then other companies with the peer to peer technologies arose such as Grokster, KaZaA, Morpheus, eDonkey, and others. Their essence consisted of providing software, which makes the possibility of exchanging the files between the computers of the users of this program located on the Internet. For media companies similar technologies are a serious threat for the same reason, they cannot compete with the free propagation of music, although with worse quality than usual CD.

The issue of intellectual property and the means made to fight its violations is very controversial. While you are not allowed to copy copyrighted material, some laws might restrict copying materials already bought by you. Another case could include were to distinguish between piracy between users and the process of lending some owned copyrighted material to a friend. These issues could be expressed in the opposition between Electronic Frontier Foundation and any violations of consumer’s rights that could be included in the PRO IP Act (Prioritizing Resources and Organization for Intellectual Property Act).

The draft of the document provides an increase in the maximum compensation for the violation of copyrights for one work up to 30000 US dollars. It is planned also to stiffen punishment for the repeated violation of copyrights. The existing law calls a criminal any user who intentionally violates copyright illegally distributing materials with the cost of more than 1000 US dollars. On the 5 th of May, this act was passed while removing “the most damaging provision in the bill (seemingly written solely to increase damages in the RIAA’s file-sharing lawsuit campaign), the bill would nonetheless significantly expand federal enforcement of copyright law.” (Esguerra 2008)

How this act will protect copyrights without violating consumer rights will be evident as time passes by. However, history shows that such narrow and controversial issues which are hard to prove will remain in the courts until some real effective law will be introduced or a new way for consumer-product relationships is invented.

Samuelson, Pamela. “ The Generativity of Sony v. Universal: The Intellectual Property Legacy of Justice Stevens .” Fordham Law Review 74.1831 (2006): 101. Web.

Electronic Frontier Foundation. About EFF. : Wiley, 2008. Web.

Open Congress. PRO-IP Act of 2007. : Crisp Learning, 2003. Web.

Esguerra, Richard. House Passes Controversial PRO IP Act. , 2008. Web.

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Intellectual Property

Intellectual property is generally characterized as non-physical property that is the product of original thought. Typically, rights do not surround the abstract non-physical entity; rather, intellectual property rights surround the control of physical manifestations or expressions of ideas. Intellectual property law protects a content-creator’s interest in their ideas by assigning and enforcing legal rights to produce and control physical instantiations of those ideas.

Legal protections for intellectual property have a rich history that stretches back to ancient Greece and before. As different legal systems matured in protecting intellectual works, there was a refinement of what was being protected within different areas. Over the same period several strands of moral justification for intellectual property were offered: namely, personality-based, utilitarian, and Lockean. Finally, there have been numerous critics of intellectual property and systems of intellectual property protection. This essay will discuss all of these topics, focusing on Anglo-American and European legal and moral conceptions of intellectual property.

1. History of Intellectual Property

2.1 copyright, 2.2 the creative commons, copyleft, and licensing, 2.3 patents, 2.4 trade secret, 2.5 trademark, 2.6 protecting mere ideas, 2.7 droits morals: continental systems of intellectual property, 3.1 personality-based justifications of intellectual property, 3.2 the utilitarian incentives-based argument for intellectual property, 3.3 lockean justifications of intellectual property, 3.4 intellectual property and the prisoner’s dilemma, 4.1 information is not property, 4.2 information is non-rivalrous, 4.3 information wants to be free, 4.4 the free speech argument against intellectual property, 4.4 the social nature of information argument, 4.6 the cost of publishing digital information, 4.7 the liberty objection to intellectual property, other internet resources, related entries.

One of the first known references to intellectual property protection dates from 500 B.C.E., when chefs in the Greek colony of Sybaris were granted year-long monopolies for creating particular culinary delights. There are at least three other notable references to intellectual property in ancient times—these cases are cited in Bruce Bugbee’s formidable work The Genesis of American Patent and Copyright Law (Bugbee 1967). In the first case, Vitruvius (257–180 B.C.E.) is said to have revealed intellectual property theft during a literary contest in Alexandria. While serving as judge in the contest, Vitruvius exposed the false poets who were then tried, convicted, and disgraced for stealing the words and phrases of others.

The second and third cases also come from Roman times (first century C.E.). Although there is no known Roman law protecting intellectual property, Roman jurists did discuss the different ownership interests associated with an intellectual work and how the work was codified—e.g., the ownership of a painting and the ownership of a table upon which the painting appears. There is also reference to literary piracy by the Roman epigrammatist Martial. In this case, Fidentinus is caught reciting the works of Martial without citing the source.

These examples are generally thought to be atypical; as far as we know, there were no institutions or conventions of intellectual property protection in Ancient Greece or Rome. From Roman times to the birth of the Florentine Republic, however, there were many franchises, privileges, and royal favors granted surrounding the rights to intellectual works. Bugbee distinguishes between franchises or royal favors and systems of intellectual property in the following way: franchises and royal favors restrict access to intellectual works already in the public domain, thus these decrees take something from the people. An inventor, on the other hand, deprives the public of nothing that existed prior to the act of invention (Bugbee 1967). One of the first statutes that protected authors’ rights was issued by the Republic of Florence on June 19, 1421, to Filippo Brunelleschi, a famous architect. This statute not only recognized the rights of authors and inventors to the products of their intellectual efforts; it built in an incentive mechanism that became a prominent feature of Anglo-American intellectual property protection. For several reasons, including Guild influence, the Florentine patent statute of 1421 issued only the single patent to Brunelleschi. The basis of the first lasting patent institution of intellectual property protection is found in a 1474 statute of the Venetian Republic. This statute appeared 150 years before England’s Statute of Monopolies; moreover, the system was sophisticated. The rights of inventors were recognized, an incentive mechanism was included, compensation for infringement was established, and a term limit on inventors’ rights was imposed.

American institutions of intellectual property protection are based on the English system that began with the Statute of Monopolies (1624) and the Statute of Anne (1710). The Statute of Monopolies granted fourteen-year monopolies to authors and inventors and ended the practice of granting rights to “non-original/new” ideas or works already in the public domain. In contrast to patent institutions in Europe, literary works remained largely unprotected until the arrival of Johannes Gutenberg’s printing press in the fifteenth century. Even then there were few true copyrights granted—most were grants, privileges, and monopolies.

The Statute of Anne (1710) is considered by scholars to be the first statute of modern copyright. The statute begins:

“Whereas printers, booksellers, and other persons have lately frequently taken the liberty of printing, reprinting, and publishing books without the consent of the authors and proprietors … to their very great detriment, and too often to the ruin of them and their families: for preventing therefore such practices for the future, and for the encouragement of learned men to compose and write use books, be it enacted …” (Great Britain, Statute of Anne , 1710)

The law gave protection to the author by granting fourteen-year copyrights, with a fourteen-year renewal possible if the author was still alive.

In the landmark English case Miller v. Taylor (1769), the inherent rights of authors to control what they produce, independent of statute or law, was affirmed. While this case was later overruled in Donaldson v. Becket (1774), the practice of recognizing the rights of authors had begun. Over the following decades other European countries, including Belgium, Holland, Italy, and Switzerland, followed the example set by England (Bugbee 1967). Various international treaties like the Berne Convention treaty and the Trade-Related Aspects of Intellectual Property (TRIPS 1994) agreement have expanded the geographic scope of intellectual property protection to include most of the globe.

2. The Domain of Intellectual Property

At the most practical level, the subject matter of intellectual property is largely codified in Anglo-American copyright, patent, and trade secret law, as well as in the moral rights granted to authors and inventors within the continental European doctrine. Although these systems of property encompass much of what is thought to count as intellectual property, they do not map out the entire landscape. Even so, Anglo-American systems of copyright, patent, trade secret, and trademark, along with certain continental doctrines, provide a rich starting point for understanding intellectual property (Moore 1998a). We will take them up in turn.

The domain of copyright protection is original works of authorship fixed in any tangible medium of expression (17 U.S.C. §102 (1988)). Works that may be copyrighted include literary, musical, artistic, photographic, architectural, and cinematographic works; maps; and computer software. First, for something to be protected, it must be fixed in a permanent or tangible medium of expression. For example, an expression could be chiseled into stone, printed in a book, or saved on a hard drive. Second, the work must be “original”—the work must be the author’s own production; it cannot be the result of copying ( Bleistein v. Donaldson Lithographing Co ., 188 U.S. 239 (1903)). Third, copyright does not extend to short phrases, titles, or names as these to do not contain the minimum amount of authorship required by copyright. A fourth requirement that limits the domain of what can be copyrighted is that the expression must be “non-utilitarian” or “non-functional” in nature. Utilitarian products, or products that are useful for work, fall, if they fall anywhere, within the domain of patents. Finally, rights only extend over the actual concrete expression and the derivatives of the expression—not to the abstract ideas themselves. For example, Einstein’s Theory of Relativity, as expressed in various articles and publications, is not protected under copyright law. Someone else may read these publications and express the theory in her own words and even receive a copyright for her particular expression. Some may find this troubling, but such rights are outside the domain of copyright law. The individual who copies abstract theories or ideas and expresses them in her own words may be guilty of plagiarism, but she cannot be held liable for copyright infringement.

There are five exclusive rights that copyright owners enjoy, and three major restrictions on the bundle. The five rights are: the right to reproduce the work, the right to adapt it or derive other works from it, the right to distribute copies of the work, the right to display the work publicly, and the right to perform it publicly. Under U.S. copyright law, each of these rights may be individually parsed out and sold separately by the copyright owner. All five rights lapse after the lifetime of the author plus 70 years—or in the case of works for hire, the term is set at 95 years from publication or 120 years from creation, whichever comes first. Aside from limited duration (17 U.S.C. §302), the rules of fair use (17 U.S.C. §107) and first sale (17 U.S.C. §109(a)) also restrict the rights of copyright owners. Although the notion of “fair use” is notoriously hard to spell out, it is a generally recognized principle of Anglo-American copyright law that allows anyone to make limited use of another’s copyrighted work for such purposes as criticism, comment, news reporting, teaching, scholarship, and research. For example, fair use would cover a student using short quotes of copyrighted material for academic purposes. The “first sale” rule prevents a copyright holder who has sold copies of a protected work from later interfering with the subsequent sale of those copies. For example, a copyright holder could not place, as a condition of sale, that the work in question never be given to a library or thrift shop. In short, the owners of copies can do what they like with their property, short of violating the copyrights mentioned above.

Additionally, copyright does not preclude independent creation (unlike patents). For example, if Smith creates a short poem and Jones independently creates the exact same poem. Both could obtain copyrights to their original expressions.

As a modern workaround for the first sale rule, many online content providers, rather than selling a copy of a work, simply offer licensing agreements (through click-wrap, shrink-wrap, etc.) that allow only specific uses of protected content. These approaches to protecting intellectual works are relatively new and seemingly build upon the copyright systems already in place. For example, by using licensing agreements to guarantee different levels of downstream access, the Creative Commons and Copyleft models seek to expand the commons of thought and expression (Stallman 1997; Lessig 2004). An owner may allow others to build upon a protected work provided that the “new” work is similarly accessible or usable. Note that the moral bindingness of these contracts/agreements presuppose prior entitlements (hinting at the moral justifications offered below). For example, if neither party to a Copyleft license owns or has legitimate title to the intellectual work in question, then the resulting agreement/license will not be binding. Thus, Creative Commons and Copyleft models are actually built upon ownership or entitlement claims to intellectual works.

The domain or subject matter of patent law is the invention and discovery of new and useful processes, machines, articles of manufacture, or compositions of matter. There are three types of patents recognized by US patent law: utility patents, design patents, and plant patents. Utility patents protect any new, useful, and nonobvious process, machine, article of manufacture, or composition of matter, as well as any new and useful improvement thereof. Design patents protect any new, original, and ornamental design for an article of manufacture. Finally, the subject matter of a plant patent is any new variety of plant that is asexually propagated (e.g. rose bushes grown by cutting pieces of the stem). Patent protection is the strongest form of intellectual property protection, in that a twenty-year exclusive monopoly is granted to the owner over any expression or implementation of the protected work (35 U.S.C. §101 (1988) and 35 U.S.C. §154(a)(2)).

As with copyright, there are restrictions on the domain of patent protection. The U.S. Patent Act requires usefulness, novelty, and non-obviousness of the subject matter. The usefulness requirement is typically deemed satisfied if the invention can accomplish at least one of its intended purposes. Needless to say, given the expense of obtaining a patent, most machines, articles of manufacture, and processes are useful in this minimal sense.

A more robust requirement on the subject matter of a patent is that the invention defined in the claim for patent protection must be new or novel. There are several categories or events, all defined by statute, that can anticipate and invalidate a claim of a patent (35 U.S.C. §101 (1988)). In general, the novelty requirement invalidates patent claims if the invention was publicly known before the patent applicant invented it. For example, someone could not obtain a patent on the production of stained glass by mixing potash and sand, heating the mixture to 3000 Fahrenheit, and then adding different metallic oxide powders to produce different colors, even if the inventor in this case independently came up with this process.

In addition to utility and novelty, the third restriction on patentability is non-obviousness. United States patent law requires that the invention not be obvious to one ordinarily skilled in the relevant art at the time the invention was made. A hypothetical individual is constructed and the question is asked, “Would this invention be obvious to an expert in the relevant field?” If it would be obvious to this imaginary individual then the patent claim fails the test (35 U.S.C. §103).

In return for public disclosure and the ensuing dissemination of information, the patent holder is granted the right to make, use, sell, and authorize others to sell the patented item (35 U.S.C. §154 (1984 and Supp. 1989)). The bundle of rights conferred by a patent excludes others from making, using, or selling the invention regardless of independent creation. Like copyright, patent rights lapse after a given period of time—20 years for utility and plant patents, 14 for design patents. But unlike copyright protection, during their period of applicability these rights preclude others who independently invent the same process or machine from being able to patent or market their invention.

The subject matter of trade secret law is almost unlimited in terms of the content or subject matter that may be protected and typically relies on private measures, rather than state action, to preserve exclusivity. “A trade secret is any information that can be used in the operation of a business or other enterprise and that is sufficiently valuable and secret to afford an actual or potential economic advantage over others” (U.S. Legal Code, The Restatement (Third) of Unfair Competition, 1995, §39). The secret may be a formula for a chemical compound; a process of manufacturing, treating, or preserving materials; a pattern for a machine or other device; or a list of customers. Trade secrets are not registered with a government agency.

The two major restrictions on the domain of trade secrets are the requirements of secrecy and competitive advantage. An intellectual work is not a secret if it is generally known within the industry, published in trade journals, reference books, etc., or readily copyable from products on the market.

Although trade secret rights have no built-in expiration, they are extremely limited in one important respect. Owners of trade secrets have exclusive rights to make use of the secret only as long as the secret is maintained. If the secret is made public by the owner, then trade secret protection lapses and anyone can make use of it. Moreover, owners’ rights do not exclude independent invention or discovery. Within the secrecy requirement, owners of trade secrets enjoy management rights and are protected from misappropriation. This latter protection is probably the most important right granted, given the proliferation of industrial espionage and employee theft of intellectual works. If a trade secret is misappropriated and made public, courts may impose injunctive relief and damages. For example, if someone misappropriates a trade secret and publishes it on a website, courts may require deletion and payment of fines.

The domain or subject matter of trademark is, generally speaking, the good will or good name of a company. A trademark is any word, name, symbol, or device, or any combination thereof, adopted by a manufacturer or merchant to identify her goods and distinguish them from goods produced by others (15 U.S.C. §1127 (1988)). Some marks identify services rather than products.

A major restriction on what can count as a trademark is whether or not the symbol is used in everyday language. In this respect, owners of trademarks do not want their symbols to become too widely used because once this occurs, the trademark lapses. An example of this restriction eliminating a word from trademark protection is “aspirin”—as the word became a part of the common culture, rights to exclusively use the trademark lapsed.

Ownership of a trademark confers upon the property holder the right to use a particular mark or symbol and the right to exclude others from using the same (or similar) mark or symbol. The duration of these rights is limited only in cases where the mark or symbol ceases to represent a company or interest, or becomes entrenched as part of the common language or culture.

Outside of the regimes of copyright, patent, trade secret, and trademark, there is a substantial set of case law that allows individuals to protect mere ideas as personal property. This system of property is typically called the “law of ideas” (Nimmer 1954, Epstein 1992). A highly publicized case in this area is Buchwald v. Paramount Pictures (13 U.S.P.Q. 2d 1497 (Cal. Super. Ct. 1990)), concerning the Eddie Murphy movie Coming to America . Buchwald approached Paramount Pictures with a movie idea and it was agreed that if a movie was made following Buchwald’s premise he would receive compensation. Buchwald did not fix his idea, for example by writing it down, and thus copyright infringement did not apply. After several years of false starts and negotiations Paramount notified Buchwald that the movie based on his idea was not going to be produced. Shortly after this notification, Coming to America was released and credit was given to Eddie Murphy. Even though the movie supposedly lost money, Buchwald sued and received compensation.

The law of ideas is typically applied in cases where individuals produce ideas and submit them to corporations expecting to be compensated. In certain cases, when these ideas are used by the corporation (or anyone) without authorization, compensation may be required. Before concluding that an author has property rights to her idea(s), courts require the idea(s) to be novel or original ( Murray v. National Broadcasting, 844 U.S. F2d 988 (Second Cir. 1988)) and concrete ( Hamilton Nat’l Bank v. Belt (D.C. Cir. 1953)). Compensation is offered only in cases of misappropriation ( Sellers v. American Broadcasting Co . (11th Cir. 1982)).

Article 6 bis of the Berne Convention articulates the notion of “moral rights” that are included in continental European intellectual property law. The doctrine protects the personal rights of creators, as distinguished from their economic rights, and is generally known in France as “droits morals” or “moral rights.” These moral rights consist of the right to create and to publish a work in any form desired, the creator’s right to claim the authorship of his work, the right to prevent any deformation, mutilation or other modification thereof, the right to withdraw and destroy the work, the prohibition against excessive criticism, and the prohibition against all other injuries to the creator’s personality (Roeder 1940).

3. Justifications and Critiques

Arguments for intellectual property rights have generally taken one of three forms (Hughes 1988; Moore 2008). Personality theorists maintain that intellectual property is an extension of individual personality. Utilitarians ground intellectual property rights in social progress and incentives to innovate. Lockeans argue that rights are justified in relation to labor and merit. To this we add a recent fourth strand of justification (Moore 2018). This more recent justification analyzes content creation and access as a form of the prisoner’s dilemma. On grounds of prudence and self-interest, we each have reason to adopt and promote institutions that protect intellectual works. While each of these strands of justification has its weaknesses, there are also strengths unique to each.

Rather than focusing on incentives and consequences or labor and merit (see utilitarian and Lockean arguments below), the personality theorist argues that intellectual property is an extension of individual personality. Personality theorists such as Hegel maintain that individuals have moral claims to their own talents, feelings, character traits, and experiences. We are self-owners in this sense. Control over physical and intellectual objects is essential for self-actualization—by expanding our selves outward beyond our own minds and mixing these selves with tangible and intangible items, we both define ourselves and obtain control over our goals and projects. For Hegel, the external actualization of the human will requires property (Hegel 1821). Property rights are important in two ways according to this view. First, by controlling and manipulating objects, both tangible and intangible, our will takes form in the world and we obtain a measure of freedom. Individuals may use their physical and intellectual property rights, for example, to shield their private lives from public scrutiny and to facilitate life-long project pursuit. Second, in some cases our personality becomes fused with an object—thus moral claims to control feelings, character traits, and experiences may be expanded to intangible works (Humboldt 1792; Kohler 1969).

The right of divulgation, when and if an intellectual work is placed before the public, is grounded in justified possession or prior entitlements over the work in question and the wrongness of compelling speech. A central wrong-making feature of violating the rights of attribution and integrity is that, in the typical case, a kind of misrepresentation or fraud occurs. For example, when Smith changes a painting by Jones without notice, there is a misrepresentation being offered. As with attribution and integrity, the right of withdraw could be protected by contracts that determine the downstream uses of intellectual works.

3.1.1 Problems for Personality-Based Justifications of Intellectual Property

There are at least four problems with this view (Hughes 1988; Palmer 2005; Schroeder 2006). First, it is not clear that we own our feelings, character traits, and experiences. While it is true that we have possession of these things or that they are a part of each of us, an argument is needed to establish the relevant moral claims.

Second, even if it could be established that individuals own or have moral claims to their personality, it does not automatically follow that such claims are expanded when personalities become infused in tangible or intangible works. Rather than establishing property claims to such works, perhaps we should view this as an abandonment of personality—similar to the sloughing off of hair and skin cells. Moreover, misrepresenting an intellectual work (assuming there are no moral rights to these expressions) might change the perception of an author’s personality, but it would not in fact change their personality.

Third, assuming that moral claims to personality could be expanded to tangible or intangible items, we would still need an argument justifying property rights. Personality-based moral claims may warrant nothing more than use rights or prohibitions against alteration. Finally, there are many intellectual innovations in which there is no evidence of a creator’s personality—a list of customers or a new safety-pin design, for instance (Hughes 1988). Given these challenges, personality-based theories may not provide a strong moral foundation for legal systems of intellectual property.

3.1.2 The Personality Theorist’s Rejoinder

Even if we acknowledge the force of these objections, there does seem to be something intuitively appealing about personality-based theories of intellectual property rights. Suppose, for example, that Mr. Friday buys a painting at a garage sale—a long-lost Crusoe original. Friday takes the painting home and alters the painting with a marker, drawing horns and mustaches on the figures in the painting. The additions are so clever and fit so nicely into the painting that Friday hangs it in a window on a busy street. There are at least two ethical worries to consider in this case. First, the alterations by Friday may cause unjustified economic damage to Crusoe. Second, and independent of the economic considerations, Friday’s actions may damage Crusoe’s reputation. The integrity of the painting has been violated without the consent of the author, perhaps causing long-term damage to his reputation and community standing. If these claims are sensible, then it appears that we are acknowledging personality-based moral “strings” attaching to certain intellectual works. By producing intellectual works, authors and inventors put themselves on display, so-to-speak, and incur certain risks. Intellectual property rights afford authors and inventors a measure of control over this risk. To put the point a different way, it is the moral claims that attach to personality, reputation, and the physical embodiments of these individual goods that justify legal rules covering damage to reputation and certain sorts of economic losses.

There is also the issue of compelled speech. Friday, in this example, is misrepresenting Crusoe and compelling him to discuss the changes, integrity, and original intent of the intellectual work. Instances of plagiarism and forgery are also example of misrepresentation and fraud.

Moreover, personality-based theories of intellectual property often appeal to other moral considerations. Hegel’s personality-based justification of intellectual property rights included an incentive-based component as well—he asserts that protecting the sciences promotes them, benefiting society (Hegel 1821). Perhaps the best way to protect these intuitively attractive personality-based claims to intangible works is to adopt a more comprehensive system designed to promote progress and social utility.

In terms of “justification,” modern Anglo-American systems of intellectual property are typically modeled as incentive-based and utilitarian (Oppenheim 1951; Machlup 1962; Boonin 1989; Hettinger 1989; Mackaay 1990; Coskery 1993; Palmer 1997; Moore 2001, Lemley 2015). On this view, a necessary condition for promoting the creation of valuable intellectual works is granting limited rights of ownership to authors and inventors. Absent certain guarantees, authors and inventors might not engage in producing intellectual property. Although success is not ensured by granting these rights, failure is inevitable if those who incur no investment costs can seize and reproduce the intellectual effort of others. Adopting systems of protection like copyright, patent, and trade secret yields an optimal amount of intellectual works being produced, and a corresponding optimal amount of social utility. Coupled with the theoretical claim that society ought to maximize social utility, we arrive at a simple yet powerful argument for the protection of intellectual property rights.

It is crucial to note that the issue of whether intellectual property protection does, or does not, sufficiently promote human happiness or well-being is an empirical question. Whether or not, for example, intellectual property protection provides an incentive that elicits some optimal output of content creation can be settled only by looking to the empirical evidence. Likewise, whether or not intellectual property protection has the effect of hindering innovation and inhibiting the production of novel valuable content can be settled only by empirical analysis. The difficulties involved in obtaining such evidence suggest that the empirical question will remain debated for some time. Complicating the task is the fact that the efficacy or lack thereof of intellectual protection in promoting well-being seems to vary from one industry to the next (Lemley 2015).

On the positive side there are numerous authors who claim that the empirical evidence is now squarely in favor of intellectual property protection. The tragedy of a ‘no-protection rule’ is secrecy, restricted markets, and lost opportunities (Miners & Staff 1990; Mossoff 2015; O’Connor 2016). William Fisher notes:

Potential innovators will know that, once they reveal their breakthroughs to the world, other people will be able to take advantage of them for free. Consequently, the innovators will be unable to recoup the costs of their innovations (the costs of the education they underwent to prepare them to make the innovations, the outlay for research and development, their opportunity costs, etc.). Aware of this risk, potential innovators will devote their energies to other, more lucrative activities, and society at large will suffer. (Fisher 2001)

Robert J. Barro and Xavier Sala-I-Martin note that over the long run the world’s growth rate is largely:

driven by discoveries in the technologically leading economies. Followers converge at least part way toward the leaders because copying is cheaper than innovation over some range. As the pool of uncopied ideas diminishes, the cost of imitation tends to increase…the consequence from the absence of intellectual property rights across economies…[is] the leading places tend to have insufficient incentive to invent, and the follower places tend to have excessive incentive to copy. (Barro & Sala-I-Martin 1997)

Professor Petra Moser makes the following observation:

In countries without patent laws, inventors depend entirely on secrecy, lead-time, and other alternatives to patents in protecting their intellectual property. As a result, investments in research and development may be most attractive in industries in which secrecy can effectively guarantee exclusive rights long enough to allow inventors to recoup their investments. (Moser 2013)

While much of the economic literature in this area focuses on patents, similar points can be made with respect to copyright. With the ease of copying and distribution afforded by modern digital networks, content creators would seem to be at a serious disadvantage compared to copiers. Without copyright there would be nothing to stop copiers from simply copying movies, books, articles, and music and selling, trading, or allowing others to make free copies. Michael Smith and Rahul Telang, argue that piracy harms both producers and consumers by undermining the income streams of producers, resulting in less content being created (Smith & Telang 2016). Sean O’Connor notes, “it should be clear that no one would invest without some appropriation mechanism that would provide them with a favorable return on their investment through the monetization of the commercialized goods or services. If they cannot see a way to get such a return, they will not make the investment” (O’Connor 2015).

3.2.2 Problems for the Utilitarian Incentives-Based Argument

On the negative side there are many who argue that “the jury is out” or that systems of IP protection actually hinder innovative activity (Machlup 1958; Schiff 1971; Palmer 1990; Boldrin & Levine 2007). On patent protection, Fritz Machlup (1958) wrote “No economist, on the basis of present knowledge, could possibly state with certainty that the patent system, as it now operates, confers a net benefit or a net loss upon society” (Machlup 1958). Nevertheless, Machlup went on to argue that such considerations do not yield the conclusion that we should abolish patent protection. Professors Michele Boldrin and David Levine argue that a ‘first mover advantage,’ coupled with secrecy and add-on services, is sufficient as an incentive for creation and discovery (Boldrin & Levine 2007). Tom Palmer made a similar point seventeen years earlier, arguing that intellectual works should be protected via technological fences and contracts, along with bundling in other products and services (Palmer 1990).

Given that the utilitarian argument rests on providing incentives, what is needed to critique it are cases that illustrate better ways, or equally good ways, of stimulating production without granting private property rights to authors and inventors. It would be better to establish equally powerful incentives for the production of intellectual property that did not also require initial restricted use guaranteed by rights (Polanyi 1943; Machlup 1962; Hettinger 1989; Waldron 1993; Moore 2003; Wright 1998).

One alternative to granting intellectual property rights to inventors as incentive is government support of intellectual labor (Hettinger 1989; Calandrillo 1998). This could take the form of government-funded research projects, with the results immediately becoming public property. The question becomes: can government support of intellectual labor provide enough incentive to authors and inventors so that an equal or greater amount of intellectual products are created compared to what is produced by conferring limited property rights? Better results may also be had if fewer intellectual works of higher quality were distributed to more people.

Unlike a government-supported system of intellectual property rights, reward models may be able to avoid the problems of allowing monopoly control and restricting access, and at the same time provide incentives to innovate (Shavell and Van Ypersele 2001). In this model, innovators would still burn the midnight oil chasing that pot of gold, and governments would not have to decide which projects to fund or determine the amount of the rewards before the works’ “social value” was known. Funds necessary to pay the rewards could be drawn from taxes or collecting percentages of the profits of these innovations. Reward models may also avoid the disadvantages of monopoly pricing, and obstructions to further adaptation and innovation.

Trade secret protection appears to be the most troubling from a utilitarian incentives-based perspective (Hettinger 1989). Given that no disclosure is necessary for trade secret protection, promoting trade secrets through incentives yields no reciprocal long-term social benefit. Trade secret protection allows authors and inventors the right to slow the dissemination of protected information indefinitely—a trade secret necessarily requires secrecy.

3.2.3 The Utilitarian Rejoinder

The utilitarian who defends the incentives argument may well agree with many of these criticisms and still maintain that intellectual property rights, in some form, are justified—the current system of protection is better than government support of intellectual property creation, reward models, or nothing at all. Additionally, most of the worries surrounding the incentive-based approach appear to focus on problems of implementation. We could tinker with our system of intellectual property, cutting back on some legal protections and strengthening others (Coskery 1993; Moore 2008). Perhaps we could include more personality-based restrictions on what can be done with an intangible work after the first sale, limit the term of copyrights, patents, and trade secrets to something more reasonable, and find ways to embrace technologies that promote access while protecting incentives to innovate. The utilitarian might also remind us of the costs of changing our system of intellectual property. The ‘jury may be out’ so-to-speak regarding the economic advantages of legal protections for intellectual works, but the social and economic costs of radically changing these institutions at this point would be overly burdensome.

A different strategy for justifying intellectual property rights begins with the claim that individuals are entitled to control the fruits of their labor (Locke 1690; Hettinger 1989; Becker 1993; Gordon 1993; Moore 1998b; Hughes 1988; Palmer 2005; Himma 2005a, 2006, 2008, 2013; Merges 2011). In general, the intuition is that the person who clears unowned land, cultivates crops, builds a house, or creates a new invention obtains property rights by engaging in these activities. Laboring, producing, thinking, and persevering are voluntary, and individuals who engage in these activities are entitled to what they produce. Subject to certain restrictions, rights are generated when individuals mix their labor with an unowned object. Restrictions or limits on acquisition include a labor requirement, a non-waste requirement, and the “enough and as good” proviso (Locke 1690). Labor, for Locke, is best understood as metaphor for productive activities needed to sustain and promote human flourishing (Mossoff 2012). The non-waste requirement invalidates a property claim if the appropriator takes more than she can consume or use without spoilage. Unlike the labor metaphor, spoilage for Locke means rotting or the destruction of an existing good useful for sustaining human life. Finally, the “enough and as good” proviso is best illustrated by an example Locke gives. When someone takes a drink of water from a river it is as if he takes nothing at all. His fellows are, all things considered, unaffected by this acquisition.

Consider a more formal version of Locke’s famous argument. Individuals own their own bodies and labor—i.e., they are self-owners. When an individual labors on an unowned object, her labor becomes infused in the object and for the most part, the labor and the object cannot be separated. It follows that once a person’s labor is joined with an unowned object, assuming that individuals exclusively own their body and labor, rights to control are generated. The idea is that there is an expansion of rights: we each own our labor and when that labor is mixed with objects in the commons, our rights are expanded to include these goods.

In terms of intellectual property, the act of creation or discovery typically takes time, effort, and skill. Intellectual works don’t spoil like apples, so there are no “non-waste” concerns. Moreover, the creation or discovery seemingly leaves “enough and as good.” Creating a poem, for example, and holding it as a secret does not preclude others from creating their own poems.

3.3.1 Objections to Locke

Locke’s argument is not without difficulties. Jeremy Waldron (1983) argued that the idea of mixing one’s labor is incoherent—actions cannot be mixed with objects. P. J. Proudhon (1840) argued that if labor was important, the second labor on an object should ground a property right in an object as reliably as the first labor. Nozick (1974) asked why labor mixing generated property rights rather than a loss of labor. Waldron (1983) and Perry (1978) have argued that mixing one’s labor with an unowned object should yield more limited rights than rights of full ownership. Finally, if the skills, tools, and inventions used in laboring are social products, then perhaps individual claims to title have been undermined (Grant 1987; Hettinger 1989).

3.3.2 The Lockean Rejoinder

Among defenders of Lockean-based arguments for private property, these challenges have not gone unnoticed (Spooner 1855; Schmidtz 1990; Mack 1990; Simmons 1992; Child 1990; Moore 2001; Mossoff 2012; Claeys 2017). Rather than rehearsing the points and counterpoints, consider a modified version of the Lockean argument—one that does not so easily fall prey to the objections mentioned above.

After weeks of effort and numerous failures, suppose Ginger comes up with an excellent new recipe for spicy noodles—a recipe that she keeps in her mind and does not write down. Would anyone argue that Ginger does not have at least some minimal moral claim to control the recipe? Suppose that Fred samples some of Ginger’s noodles and desires to purchase the recipe. Is there anything morally suspicious with an agreement between them that grants Fred a limited right to use Ginger’s recipe provided that Fred does not disclose the process? Alas, Fred didn’t have to agree to the terms and, no matter how tasty the noodles, he could eat something else or create his own recipe. Arguably, part of the moral weightiness of the agreement between Ginger and Fred relies on the fact that Ginger holds legitimate title to the recipe. A slightly different way to put this Lockean argument for intellectual property rights is:

Step One : The Generation of Prima Facie Claims to Control – Suppose Ginger creates a new intellectual work – creation, effort, etc., yield her prima facie claims to control (similar to student desert for a grade). Step Two : Locke’s Proviso – If the acquisition of an intellectual object makes no one (else) worse off in terms of their level of well-being compared to how they were immediately before the acquisition, then the taking is permitted. Step Three : From Prima Facie Claims to Property Rights – When are prima facie claims to control an intellectual work undefeated? Answer: when the proviso is satisfied. Alas, no one else has been worsened – who could complain? Conclusion : So long as no harm is done – the proviso is satisfied – the prima facie claims that labor and effort may generate turn into property claims (Moore 2012).

In small communities it may even be possible to contract with all of one’s fellows securing all or some of the bundle of full ownership. In this sort of example, every single member of the community would be directly part of the agreement. Ginger says to her peers, “if you want access to my recipe, then you will have to agree to my right to enjoy income” and they reply “but such rights can’t be indefinite … we as a community won’t be on the hook for defending this agreement indefinitely.” In the ensuing give-and-take an agreement is hammered out. It is important to note that the moral bindingness of such an agreement is crucially dependent on the initial set of entitlement claims generated by labor, desert, and non-worsening. If Ginger, in this case, was not the author of the recipe — suppose she took it from someone else — it is not at all clear that the resulting contract would be morally or legally binding.

Moving from small communities to larger ones a more general form of agreement between authors, inventors, and society can be considered. If intellectual works are to be held as anything other than trade secrets, walled off with narrow contracts like non-disclosure agreements or non-competition arrangements, there must be a way of securing access. Society may purchase access by offering limited rights to authors and inventors. Moreover, if some society does not offer this sort of protection, then innovators would likely employ their talents in other areas or simply move to a society where such agreements are recognized.

A major concern and limitation on the traditional justifications for intellectual property already discussed is that many scholars reject the starting assumptions needed to generate the desired moral claims. For example, non-utilitarians will dismiss the theoretical foundations of utilitarianism. Non-Lockeans will reject Locke’s commitment to self-ownership, natural rights, and individual flourishing. Building off of the positive economic analysis mentioned in the utilitarian justification for IP discussed above, Moore (2018) offers a different sort of argument based on individual prudence and self interest. Note that this argument, while concerned with consequences, is not focused on maximizing human well-being or flourishing.

Consider the following case. Imagine that we have two intellectual property creators, Beren and Lúthien, and two possible outcomes for each. In a single-play prisoner’s dilemma game, each player can copy an intellectual creation of the other, or not. Assume as well that the intellectual works created by Beren and Lúthien are valuable, interesting, or desired. The best case for either player is one where their own intellectual creation is not copied and yet they get to copy the work of the other player. This is ‘best’ for the player who copies and ‘worst’ for the player who doesn’t because, (1) the player who copies gets to enjoy or consume more content compared to the other player, (2) the player who copies still has the option or possibility of obtaining benefit by selling, trading, or bartering with the other player, while the non-copier does not enjoy these possibilities — this provides a way to recoup research and development costs, and (3) via selling, trading, or bartering the copier may obtain a positional advantage and more capital for future exchanges compared to the non-copier. Simply put, the copier obtains more content and retains more opportunities to sell, barter, or exchange compared to the non-copier. If Beren and Lúthien both refrain from copying each other, then each will avoid the worst outcome in terms of recouping investment costs and being at a positional disadvantage. Both will also retain the option of buying or bartering for the non-copied content the other enjoys. This payoff is ‘okay,’ better than ‘worst’ but not as good as ‘best.’ If both Beren and Lúthien copy each other, then both will get extra content to enjoy and will not be put at a positional disadvantage, but each will be denied the possibility of recouping research and development costs. The other player will not buy or barter for content he already possesses. These payoffs mirror a prisoner’s dilemma game (Axelrod 198, 1984, Skyrms 1990, Binmore 2015, Holt, Johnson and Schmidtz 2015).

In modeling content creation, access, and copying as an iterated prisoner’s dilemma between numerous individuals, the problem becomes even more salient. It will be individually rational to copy the intellectual efforts and creations of others. This will suppress innovation and lead to a sub-optimal result. Based solely on rational self-interest and prudence, Moore argues we should adopt institutions that promote innovation and allow inventors the capacity to recoup research and development costs. If copying becomes too widespread or if enforcement mechanisms fail, then we will likely spiral toward the collectively sub-optimal result of suppressing innovation. We see similar results of an intellectual property prisoner’s dilemma played out between nations. Through the use of sanctions against copying the intellectual efforts of others, we give ourselves compelling reasons to pursue a collectively superior outcome.

4. General Critiques of Intellectual Property

Putting aside the strands of argument that seek to justify moral claims to intangible works and the rather focused problems with these views, there are several general critiques of the rights to control intellectual property to consider.

Critics argue that information is not the kind of thing that can be owned or possessed and is not something that can be property, as that notion is typically defined. Information objects, such as numbers and propositions are abstract objects, which cannot causally interact with material objects, and hence cannot be owned or possessed. The idea, for example, that one could, in the relevant sense, possess and hence own the novel expressed by the book A Tale of Two Cities makes as little sense as the idea that one could possess and hence own the entity denoted by the symbol “2.” Whatever concepts might properly be applied to abstract objects, on this view, the concept of property, according to these theorists, does not. As a conceptual matter, the term “intellectual property,” at best, applies to nothing and, at worst, is incoherent.

This analysis is vulnerable to at least two objections. First, it is not clear that ownership, as a conceptual matter, requires physical possession. One can argue that the essence of ownership consists in a power — the power to exclude others from certain behaviors involving the relevant entity — and not in physical control or possession of the entity. Second, the claim that information objects cannot be property does not imply that it is illegitimate to grant to authors or content-creators a legal right to exclude others from appropriating those objects without their consent. That some entity E is not “property” implies only that it should not be legally protected qua property; it does not imply that E should not be protected in very similar ways. It might be that such legal rights should be called something other than “intellectual property rights,” but these rights could be called something else, such as, for example, “intellectual content rights.”

Many have argued that the non-rivalrous nature of intellectual works grounds a prima facie case against rights to restrict access. Since intellectual works are not typically consumed by their use and can be used by many individuals concurrently (making a copy does not deprive anyone of their possessions), we have a strong case against moral and legal intellectual property rights (Kuflik 1989; Hettinger 1989; Barlow 1997). One reason for the widespread pirating of intellectual works is that many people think restricting access to these works is unjustified. Consider a more formal version of this argument:

The weak point in this argument is the first premise (Moore 2012; Himma, 2005b). Consider sensitive personal information. Moore argues that it false to claim that just because this information can be used and consumed by many individuals concurrently, a prima facie moral claim to maximal access is established. This argument applies as well to snuff films, obscene pornography, information related to national security, personal financial information, and private thoughts; each are non-rivalrous, but this fact does not by itself generate prima facie moral claims for maximal access and use. Moreover, it is not clear that unauthorized copying does no harm to the owner even in cases where the copier would not have purchased a copy legitimately (and thus is not denying the owner economic compensation they would otherwise receive). Unauthorized copying creates un-consented to risks that owners must shoulder.

Himma points out that, by itself, the claim that consumption of information is non-rivalrous does not imply that we have a right of any kind to those objects. While this certainly provides a reason against thinking protection of intellectual property is morally justified, it does not tell us anything about whether we have a right of some sort because it does not contain any information about morally relevant properties of human beings—and the justification of general rights-claims necessarily rests on attributions of value that implicitly respond to interests of beings with the appropriate level of moral standing—in our case, our status as persons (Himma 2005b).

Barlow (1997) argues that information is entitled to moral consideration in virtue of being alive. On his view, information is a form of life with a claim to be free that is grounded in interests and “wants” of its own. As he puts the point, information objects “are life forms in every respect but a basis in the carbon atom. They self-reproduce, they interact with their surroundings and adapt to them, they mutate, they persist.” Further, these living information objects have some sort of interest in being made available to everyone free of charge.

Barlow’s argument can be challenged on a couple of grounds. First, Himma (2005b) argues that it is simply implausible to think of abstract objects as having wants — or even interests. The concept of desire is such that only conscious beings are capable of having desires; although a conscious being can have subconscious desires, non-sentient entitles are no more accurately characterized as having desires than as having hopes. Second, even if information objects had wants or interests, Barlow gives no reason for thinking that they have a desire to, or interest in being made freely available to all. Certainly, the claim that being made freely available to all somehow benefits information objects needs an argument if for no other reason than that it is counterintuitive.

According to some, promoting intellectual property rights is inconsistent with our commitment to freedom of thought and speech (Nimmer 1970; Hettinger 1989; Waldron 1993). Closely associated with this argument is the position that individuals have a right to knowledge and intellectual property institutions interfere with this basic right. Hettinger argues that intellectual property “restricts methods of acquiring ideas (as do trade secrets), it restricts the use of ideas (as do patents), and it restricts the expression of ideas (as do copyrights)—restrictions undesirable for a number of reasons” (Hettinger 1989). Hettinger singles out trade secrets as the most troublesome because, unlike patents and copyrights, they do not require disclosure.

Three sorts of replies have been offered to this kind of worry (Himma 2006; Moore 2012). While we focus on the free speech argument against intellectual property, right to know arguments fall prey to similar objections. The first objection notes that it is the incentives found in providing limited protection that fosters the creation and dissemination of information—a system of intellectual property protection may cause restricted access in the short run, but overall, the commons of thought and expression is enhanced. Simply put, in the long run we get more to talk about, consume, and enjoy because of the incentives afforded by copyrights and patents.

Second, it is not at all clear that free speech is so presumptively weighty that it nearly always trumps other values. Shouting at someone over a bullhorn all day is not something we would countenance as protected free speech. Hate speech, obscene expressions, sexual harassment, and broadcasting private medical information about others are each examples of speech that we are willing to limit for various reasons—perhaps intellectual property rights can be viewed in this light.

Finally, consider the contentious, yet established, idea/expression rule of copyright. Copyright only applies to fixed expressions, not to the ideas that may make up a fixed expression. For example, someone may read Darwin’s original writings on evolution, express these ideas in her own words, and obtain a copyright in the new expression. This individual may be guilty of plagiarism, but so long as her expressions are not copied from Darwin’s original or substantially similar to the original, she can obtain a copyright. Copyrights and patents require disclosure and thus the ideas that make up these intellectual works may be discussed and analyzed.

According to this view, information is a social product and enforcing access restrictions unduly benefits authors and inventors. Individuals are raised in societies that endow them with knowledge which these individuals then use to create intellectual works of all kinds. On this view the building blocks of intellectual works—knowledge—is a social product. Individuals should not have exclusive and perpetual ownership of the works that they create because these works are built upon the shared knowledge of society. Allowing rights to intellectual works would be similar to granting ownership to the individual who placed the last brick in a public works dam. The dam is a social product, built up by the efforts of hundreds, and knowledge, upon which all intellectual works are built, is built up in a similar fashion (Proudhon 1840; Grant 1987; Shapiro 1991; Simmons 1992, Boyle 1997).

Beyond challenging whether the notion of “society” employed in this view is clear enough to carry the weight that the argument demands, critics have questioned the view that societies can be owed something or that they can own or deserve something (Spooner 1855; Nozick 1974; Moore 2012). Lysander Spooner writes:

“ What rights society has, in ideas, which they did not produce, and have never purchased, it would probably be very difficult to define; and equally difficult to explain how society became possessed of those rights. It certainly requires something more than assertion, to prove that by simply coming to a knowledge of certain ideas—the products of individual labor—society acquires any valid title to them, or, consequently, any rights in them” (Spooner 1855).

The problem of how individuals acquire property rights (personality, utilitarian, Lockean, etc.) now applies to how societies obtain these rights.

Moore charges that defenders of the social nature argument against intellectual property fail to see that it may prove too much.

But like the defender of the first cause argument for the existence of God who rides the principle of sufficient causation to a certain point and then conveniently abandons it (every event or object needs a sufficient cause and nothing is self-caused except God) the proponent of the “shared culture” view is guilty of a similar trick. “Shared culture” or the social nature of intellectual property view is sufficient for undermining intellectual property rights or robust control of intellectual works, but conveniently not strong enough to undermine student desert for a grade, criminal punishment, or other sorts of moral evaluation (Moore 2012).

Finally, even if a defender of this view can justify societal ownership of general pools of knowledge and information, it could be argued that we have already paid for the use of this collective wisdom when we pay for education and the like.

Coy (2007) argues is that, in a competitive market, the cost of information should properly reflect the cost of making it available to users. On this line of analysis, while the cost of making publishing information in traditional material media like books might be sufficiently high to justify charging users a price for it, the cost (per user) of making information available on digital media approaches zero as the number of users grow larger. For example, there might be some fixed cost involved in making information available on a website, but no additional cost is required beyond that to make that content available to any number of users; the more users appropriating the information, the lower the cost of making it available to any particular user. Thus, the argument concludes, it would be unfair to charge users a fee for appropriating any piece of (digital) information; information should be free (or nearly free) so as to reflect its dissemination costs.

There are two problems with this argument. First, if one accepts the legitimacy of free enterprise, as appears to be presupposed by the above argument, then what is a fair price will be determined by the voluntary interactions of buyers and sellers in a competitive market: the fair price is that which is set by the contractual transactions of free, prudentially-rational buyers and sellers. If buyers in a competitive market are willing to pay a price for digital information that is significantly higher than the seller’s marginal cost, then that price can be presumed fair. Second, the argument overlooks the fact that the fixed costs associated with producing and distributing intellectual content can be quite high. For example, the Disney Company spent more than $100 million in making the film West Side Story in 2021. If one assumes that a fair price is such as to allow the producer to recover the fixed development costs associated with producing and distributing intellectual content, this would entail that it is fair for content producers to charge a price that is sufficiently above the marginal costs to allow them to recover these fixed costs.

When an individual owns a physical item her rights exclude others from interfering with her control of it. But intellectual property rights sweep across the entire domain of human action, restricting individual liberty even in the privacy of one’s own home. “How can the artist, copyright or patent holder determine what I can do with my stuff?” Many have attacked the notion of intellectual property on the grounds that it violates individual liberty rights (Palmer 1990). Tom Palmer argues,

Liberty and intellectual property seem to be at odds, for while property in tangible objects limits actions only with respect to particular goods, property in ideal objects restricts an entire range of actions unlimited by place or time, involving legitimately owned property (VCRs, tape recorders, typewriters, the human voice, and more) by all but those privileged to receive monopoly grants from the state (Palmer 1990).

There are at least two replies to this sort of worry. First, the problem may be addressed by adopting specific legal rules. For example, current Anglo-American institutions of intellectual property have built in provisions that limit the rights of authors and inventors. These limitations, for example “fair use” (17 U.S.C. §107) and “first sale” (17 U.S.C. §109(a)) allow individuals to use a patented or copyrighted work for personal use, non-profit, or educational purposes. Under current law it is permissible to make back-up copies of computer games or to copy a chapter of a book from the library. Perhaps these kinds of limitations could be built into the bargain between society and those who create intellectual works.

A second reply is that rights of all sorts restrict what individuals can do with their bodies and property. Restricting individual liberty is no more a feature of intellectual property than of other sorts of rights. Physical property rights to a car, for example, prohibit all of humanity from swinging a bat and damaging the car in question. Even in the privacy of your own home it is not legally permissible to punch someone in the face, destroy a visitor’s personal property, or engage in risky activities that threaten one’s neighbors.

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Essay on Intellectual Property Rights: Top 5 Essays | Law | Business

In this essay we will discuss about:- 1. Introduction to Intellectual Property Rights 2. Need for Intellectual Property Rights 3. Types 4. Advantages 5. Infringement.

Essay on Intellectual Property Rights

Essay Contents:

• Essay on the Infringement of Intellectual Property Rights

Essay # 1. Introduction to Intellectual Property Rights:

It is important that one should understand the IP rights which may exist in the context of his/her business and are vigilant in their protection. Each type of IP has different threshold protection requirements, which give, rise to different rights and different terms of protection. The requirements and processes for protecting each type of IP in other countries may differ and specialist advice should be sought.

ADVERTISEMENTS:

There are various forms of IP that require registration for protection, including:

a. Patents:

Patents to protect inventions of new or improved technology.

b. Trade Marks:

Trade Marks to protect a sign or marking used to distinguish the identity or source of goods or services.

c. Industrial Designs:

Industrial Designs to protect the design and/or appearance of articles or produced goods.

d. Plant Breeder’s Rights:

Plant Breeder’s Rights to protect new plant varieties.

Other IP rights that occur automatically upon creation and do not require registration for protection, include:

a. Copyright:

Copyright To protect works of art, music, literature, broadcasts, films, sound recordings and computer programs; and

b. Circuit Layout Rights:

Circuit Layout Rights to protect integrated circuit designs.

Essay # 2. Need for Intellectual Property Rights :

a. To provide incentive towards various creative endeavors of the mind by offering protections;

b. To give such creators official recognition;

c. To create repositories of vital information;

d. To facilitate the growth of both domestic industry or culture, and international trade, through the treaties offering multi-lateral protection.

Essay # 3. Types of Intellectual Property Rights (IPRs):

The different types of Intellectual Property Rights (IPRs) are:

1. Copyright.

2. Patents.

3. Trademarks.

4. Trade secrets.

5. Geographical Indications.

6. Industrial Designs.

1. Copyright :

Copyright is the right to stop the copying and distribution of certain categories of work. Copyright protects the following categories of published and unpublished works for specified periods of time.

The categories of works protected by copyright and relevant examples include:

a. Literary Works:

Literary Works (for example, emails and newspaper articles).

b. Dramatic Works:

Dramatic Works (for example, plays).

c. Musical Works:

Musical Works (for example, songs, musical scores and soundtracks).

d. Artistic Works:

Artistic Works (for example, paintings, photographs and images).

Films (for example, videos and cinematic performances).

f. Sound Recordings:

Sound Recordings (for example, oral history tapes and recorded lectures).

g. Broadcasts:

Broadcasts (for example, TV and radio).

h. Typographic Works :

Sound Recordings (for example, the arrangement of websites and translations).

A copyright protects the expression of an idea, but not the idea itself.

The copyright holder has the exclusive right to the following with his/her work:

a. To reproduce the work.

b. To prepare derivative works.

c. To sell, lend, distribute copies or transfer ownership.

d. To perform the work publicly.

e. To display the copyrighted work publicly.

To qualify for protection, the work must be original (meaning ‘not copied’), be recorded in a permanent form, and the author must be a qualifying person. Copyright protection does not depend on registration but arises automatically once the work is created. Copyright protection lasts for a long time, generally speaking for the lifetime of the author plus 70 years. Copyright does not protect ideas; it will protect them once they are fixed in material or tangible form.

For example, an idea for a story will not be protected by copyright, once the idea is transferred into writing, and then it will be protected by copyright. Another example: many authors write textbooks on physics covering various aspects like mechanics, heat, optics etc. Even though these topics are covered in several books by different authors, each author will have a copyright on the book written by him/her, provided the book is not a copy of some other book published earlier.

2. Patent :

A patent is an exclusive right granted by a country to the owner of an invention to make, use, manufacture and market the invention, provided the invention satisfies certain conditions stipulated in the law. Exclusive right implies that no one else can make, use, manufacture or market the invention without the consent of the patent holder.

The protection secured by the registration of a patent is commonly limited in time, usually 20 years. At the end of the period of protection, the patented invention is said to be within the public domain (i.e., available for anyone to exploit).

The applicant for the protection of an invention is usually the inventor or his successor in title. Inventions have to be registered with the government. A patent registration process can take more than one year, and if it is granted, the inventor gains the legal right to exclude anyone else from manufacturing or marketing it.

Conditions for Granting a Patent:

For an invention to be protected by a patent, it must:

a. Meet the criteria of novelty.

b. Involve an inventive step and;

c. Be capable of industrial application.

An invention is conventionally considered to be novel if it is unknown or unavailable to others prior to the date of application for the patent. That is, the invention must not be anticipated by prior art. Prior art is usually taken to comprise everything disclosed to the public, anywhere in the world by prior publication in a tangible form or in the subject country by oral disclosure, or by use in any way prior to the filing of the patent application.

An invention is said to involve an inventive step if, having regard to the prior art, it would not have been obvious to a person having an ordinary skill in the art. In other words, the invention must involve a creative advance on existing knowledge.

An invention shall be considered as industrially applicable where it can be made or used in any kind of industry. In other words a patent will not be granted if it is not useful.

3. Trademark :

Trademarks provide exclusive rights to use distinctive signs, such as symbols, colours, letters, shapes or names to identify the producer of a product, and protect its associated reputation. A trademark can be a combination of words, phrases, symbols, logos, designs, images or devices, used by an individual, legal entity or business organization to distinguish their products from that of others. For example, one can identify the products of Nike, Reebok etc. through their logo, which is embossed on their products.

Trademarks can be registered, which gives the holder the exclusive right to use them. Once registered, trademarks are protected legally and the owners can sue persons who use their trademarks. Trademark protection lasts for 10 years after registration and, like patents, can be renewed.

If a company creates a symbol or name it wishes to use exclusively, it can simply attach the trademark symbol. This effectively marks the territory and gives the company room to prosecute if other companies attempt to use the same symbol for their own purposes.

4. Trade Secret :

Trade secrets are the designs, practice, formulas, instrument, processes, recipes, patterns or ideas, which are used by a company to gain economic advantage over its competitors. The owner of a trade secret does not possess any right over anyone who gains access to that secret independently, but he can prevent the use of trade secret by anyone who has learned it through the owner.

It differs from other types of intellectual property, because it is the responsibility of the owner to keep the secret and it is not protected through government policies. Once the trade secret is leaked, any person can use it.

Examples of trade secrets can be formulas for products, such as the formula for Coca-Cola; compilations of information that provide a business with a competitive advantage, such as a database listing customers; and even advertising strategies and distribution processes. Unlike patents, trade secrets are protected for unlimited period of time, and witho ut any procedural formalities.

5. Geographical Indications :

A Geographical Indication (GI) is a sign used on goods that have a specific geographical origin and possess qualities or a reputation that is solely due to the place of origin. A geographical indication merely tells that a product is produced in a certain place and has certain characteristics, which are due to the place of production.

All producers who make their products in a place designated by the geographical indications and share the same qualities can use it. For example, food products sometimes have qualities that derive from their place of production and local environmental factors. Some countries separately protect, geographical indication for goods such as French cognac or Scotch whiskey.

There are two terms used in the context of geographical indication: appellation of origin and indication of source. Indication of source on a product merely indicates that the product originates in the place indicated. Appellation of origin indicates not only the place of origin but also the essential quality link between the product and the area of its origin; e.g., Kolhapuri chappals from Kolhapur, India. Geographical indications can have indefinite life provided these are renewed after a stipulated time specified in the law by paying official fees.

6. Industrial Design :

An industrial design is the ornamental or aesthetic aspect of an article; it may consist of three-dimensional features such as shape or surface, or of two- dimensional features such as patterns, lines or colour. The design serves as a tool for product differentiation and lures customers by enhanced visual appeal.

It becomes a kind of intellectual property to be protected. Industrial designs are applied to a wide variety of products of industry or handicraft: watches, jewellery, fashion and other luxury items, industrial and medical implements, house ware, furniture, electrical appliances, vehicles and architectural structures, textile designs, toys etc.

The design right owner has the exclusive right to stop anyone else from reproducing the design (that is, copying it) by making articles to it for commercial purposes, and the right to stop anyone else dealing in infringing copies of the design by way of trade.

The person who has an industrial design right has the exclusive right to make or sell any objects in which the design is applicable. The right is conferred for a period of 10 to 25 years. For registration, a design needs to be new and original, though the notion of these qualities may vary from country to country.

Essay # 4. Advantages of Intellectual Property Rights :

Intellectual Property (IP) is an umbrella term that covers copyright, patents, trademarks, designs, circuit layout rights, and trade secrets. Each of these terms covers a different type of property that is made up of knowledge.

Some of the advantages of IPRs are:

a. Intellectual property rights help in providing exclusive rights to creator or inventor, thereby induces them to distribute and share information and data instead of keeping it confidential.

b. It provides legal protection and offers them incentive of their work.

c. Rights granted under the intellectual property act helps in socio and economic development.

Essay # 5. Infringement of Intellectual Property Rights :

An intellectual property infringement is the infringement or violation of an intellectual property right. Generally speaking, the use of a patented invention, copyrighted work, or trademark without the authorization of the IP owner constitutes infringement.

The IP owner may initiate a civil action against an alleged infringer for a violation of any of the exclusive rights conferred by a patent, copyright, or trademark. Depending on the type of intellectual property involved, one may have a variety of ways to respond to violations.

Intellectual Property Rights (IPRs) are dealt with by administrative procedures and legal proceedings. In terms of civil liabilities, the infringer may be ordered to stop the infringing act, eradicate the damage done, make public apologies or compensate for damages. In terms of administrative measures and criminal liabilities, they include warnings, orders to stop the infringing act, confiscation of unlawful gains, fines, and compensation for damages.

In all cases of intellectual property violation, negotiation is the simplest and cheapest possible remedy. Sometimes, intellectual property violations occur as the result of innocent mistakes. A simple phone call or friendly letter notifying the perpetrator might be enough to resolve the problem. Litigation is also an option.

As previously mentioned, copyright, patent, and trademark violations are actionable in the federal court system. Alternative Dispute Resolution (ADR) is another means of resolving these issues. There are two general types of ADR, mediation and arbitration. Mediation is a process where the parties mutually reach an agreement with the help of a facilitator. Arbitration involves a third party determining the outcome of a dispute.

Intellectual property infringement can be:

1. Copyright Infringement.

2. Patent Infringement.

3. Trademark Infringement.

1. Copyright Infringement :

Copyright gives the creator of the work the right to reproduce the work, make copies, translate, adapt, sell or give on hire and communicate the work to public. Any of these activities done without the consent of the author or his assignee is considered infringement of the copyright.

There is a provision of ‘fair use’ in the law, which allows copyrighted work to be used for teaching and research and development. In other words making one photocopy of a book for teaching students may not be considered an infringement, but making many photocopies for commercial purposes would be considered an infringement.

The copyright act provides several civil remedies for infringement, including the possibility of obtaining injunctive relief, actual damages suffered by the copyright owner due to the infringement, statutory damages, and costs.

2. Patent Infringement :

Patents play an important role in economic development by encouraging technology transfer and investment, research and development, and the discovery of new technologies. Violations of patent laws are known as patent infringement. Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder.

If a defendant is found guilty of patent infringement in a lawsuit brought by the patent holder, the remedies available to the patent holder includes an injunction to cease and prohibit the offending activity by the defendant, damages to compensate for the infringement, and even attorney fees. The law only provides civil remedies in the event of patent infringement; there are no criminal sanctions.

3. Trade Marks Infringement :

Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license).

Infringement may occur when one party, the ‘infringer’, uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers.

An owner of a trademark may commence legal proceedings against a party which infringes its registration. Trademark infringements carry civil penalties such as injunctions prohibiting continued violations and/or monetary damages.

Related Articles:

• Essay on Intellectual Property | Law | Business
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International Intellectual Property Law: Cases and Materials

This casebook organizes contemporary foreign, as well as U.S., case law and literature to equip law students with the knowledge they need to practice intellectual property law in both transactional and litigation settings in the current globalized environment. Carefully selected materials also expose students to the social, economic, and cultural considerations that underpin intellectual property law around the world. The casebook covers aspects of public international law, conflict of laws (private international law), and comparative law of intellectual property. Each area of law―copyright, patent, trademark, unfair competition, trade secrets, and industrial design―is introduced by a comprehensive authors’ note placing the field in its international and comparative law context, and extensive notes on the cases and materials fill in relevant details, including current and historically important topics. Materials on the major fields of intellectual property law are accompanied by materials on other related intellectual property matters, such as the protection of databases, plant varieties, geographical indications of origin, and internet domain names. A comprehensive teacher’s manual offers step-by-step assistance for teaching every case and doctrine, and also sample syllabi, final exams, learning outcomes and means of assessment.

Buy International Intellectual Property Law: Cases and Materials

West Academic

Table of Contents

Ai, ethics & human agency, collaboration, information literacy, writing process, intellectual property.

• © 2023 by Joseph M. Moxley - University of South Florida

Intellectual Property (IP) refers to

• a document or ideas owned by authors, publishers, and corporations. IP is anything that reflects an original thought that is written down or expressed in any medium . Simply put, what you create is your “intellectual property.”
• Graphics, songs, poems, pictures, and essays are examples of properties that are owned by their creators
• properties that are subject to U.S. and international copyright laws.

Intellectual Property Resources

Copyright refers to the laws that protect your ownership of property (whether or not you file a formal copyright application). Plagiarism refers to the theft of someone’s intellectual property. According to the U.S. Copyright Office,

Copyright is a form of protection provided by the laws of the United States (title 17, U.S.Code) to the authors of “original works of authorship” including literary, dramatic, musical, artistic, and certain other intellectual works. (U.S. Copyright Office, Copyright Basics, Circular 1).

Copyright refers to the laws that protect the creator’s intellectual property. Copyright laws allow you (as the creator) certain rights. You can:

• Reproduce the work in copies such as books or CDs.
• Prepare a derivative work. For example, if you write a book or short story, only you can create a play or movie from that story. (Of course, you can sell these rights if you so desire.)
• Distribute copies of your work to the public by sales or other methods. You get to perform or display the work publicly (e.g., plays, music, or dance performances).

Copyright Resources

• iCopyright : “Our goal is to put the iCopyright icon on every Web page—and give it intelligence. It will “know” about the content it sits on. It will help publishers protect, license, and track their intellectual property. It will give credit to the people who created it. It will help Internet users obtain the proper license to reprint or reuse copyrighted works in the format they desire.”
• Chilling Effects Clearinghouse : Written by students at UC Berkeley’s Boalt Hall School of Law, “These pages will help you understand the protections intellectual property laws and the First Amendment give to your online activities. We are excited about the new opportunities the Internet offers individuals to express their views, parody politicians, celebrate their favorite movie stars, or criticize businesses.”
• Intellectual Property Law: This site “provides information about intellectual property law including patent, trademark and copyright. Resources include comprehensive links, general information, space for professionals to publish articles and forums for discussing related issues.”
• Gigalaw.com : Excellent resource for information on intellectual property and copyright.
• Copyright Myths : Wonderful, easy-to-understand, rich essay on copyright. If you’re going to read just one essay on copyright, read this one!

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