In general, intellectual property (IP) refers to products of the intellect protected under the laws of patents, copyrights (more on that below), trademarks, trade secrets, and unfair competition. These laws foster innovation and creativity, helping to ensure that the competitive struggle occurs within certain bounds of fairness. The protection of intellectual property can contribute significantly to technological progress, competitiveness of businesses, and a country’s economic, social, and cultural well-being (Vidraşcu, 2014).
Trademarks are the oldest form of intellectual property, with origins in ancient times. From pre-Roman potters’ marks and medieval guild symbols to holographic trademarks on modern products, trademarks have been used to distinguish one maker’s goods from that of others. Copyright was not invented until after the advent of the printing press and wider public literacy. In England, the King was concerned with the unfair copying of books and used the royal prerogative to pass the Licensing Act of 1662, which established a register of licensed books and required a copy to be deposited with the Stationers Company (Nipps, 2014). The Statute of Anne was the first real act of copyright, giving the author rights for a fixed period. Internationally, the Berne Convention outlined the scope of copyright protection in the late 1800s and it is still in force to this day (WIPO, n.d.).
U.S. History of Intellectual Property
The U.S. Constitution (Article 1, Section 8, and Clause 8) gives Congress the power “to promote the progress of science and useful arts by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” The patent and copyright systems established under this power are as democratic as the Constitution that created them – offering the same protection and the same hope of reward to every individual (National Archives, n.d.). The U.S. did not create intellectual property laws, but we are a key player in developing global rules to protect IP.
Key International Multilateral Agreement
The World Trade Organization’s (WTO) Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) was one of the most significant achievements of the Uruguay Round of GATT (General Agreement on Tariffs and Trade – now WTO) negotiations. TRIPS requires all WTO Members to provide certain minimum standards of protection for patents, copyrights, trademarks, trade secrets, and other forms of intellectual property. TRIPS created its own standards but also incorporated by reference several of the key pre-existing multilateral IP agreements. In addition to substantive obligations, TRIPS requires countries to provide effective enforcement of these rights (WTO, 2017).
TRIPS is the first multilateral intellectual property agreement that is enforceable between governments, allowing them to resolve disputes regarding fulfillment of obligations through the WTO dispute settlement provisions. The TRIPS agreement came into force in 1995, going into effect in developed countries – including the United States – in January 1996 and developing countries had until January 2000 to comply with the TRIPS standards with respect to geographical indications while the least developed countries had been given until January 1, 2006 to comply. With regard to the patent provisions that may have an effect on the access to medicines, least developed countries had until January 2016 to comply (WTO, 2017).
Copyright protects the rights conferred by a government – for a specified period – to the creator of literary, dramatic, musical, and artistic works such as books, articles, drawings, photographs, musical compositions, motion pictures, recordings, or computer programs. Copyright protects the expression of the idea, but not the ideas themselves. This protection is available to both published and unpublished works. In the United States, copyright protection is provided under Title 17, U.S. Code, which is administered by the U.S. Copyright Office. There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions and these conditions have been greatly simplified by international copyright treaties and conventions (Cornell, n.d.).
What Rights Does Copyright Provide?
According to the U.S. Copyright Office (2012), the original creators of works protected by copyright and their heirs have certain basic rights. They hold the exclusive right to do and to authorize others to do the following:
- To reproduce the work in copies;
- To prepare derivative works based upon the work;
- To distribute copies of the work to the public by sale or other transfer of ownership, or by rental, lease, or lending;
- To perform the work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and motion pictures and other audiovisual works;
- To display the copyrighted work publicly in the case of literary, musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the individual images of a motion picture or other audiovisual work;
- In the case of sound recordings, to perform the work publicly by means of a digital audio transmission.
Term of Protection
The economic rights for a copyright have time limits that enables both creators and their heirs to benefit financially for a reasonable period of time. In the U.S., copyright protection filed after January 1978 is term of the author’s life plus seventy years (U.S. Copyright Office, 2012). The Berne Convention and the TRIPS Agreement establish international copyright laws including the term of protection. According to the Berne Convention, Article 7.1:
“The term of protection granted by this Convention shall be the life of the author and fifty years after his death.”
TRIPS Article 9.1 states members shall comply with Articles 1 through 21 of the Berne Convention, but when the term of protection is not based on an author’s life, provisions under TRIPS Article 12, state:
“Whenever the term of protection of a work, other than a photographic work or a work of applied art, is calculated on a basis other than the life of a natural person, such term shall be no less than 50 years from the end of the calendar year of authorized publication, or, failing such authorized publication within 50 years from the making of the work, 50 years from the end of the calendar year of making.”
What is Not Protected by Copyright?
Some countries may have material that is not protected under their national law. In the U.S., there are several categories of material that are generally not eligible for U.S. federal copyright protection. According to the U.S. Copyright Office (2012) these include (among others):
- Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded);
- Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents;
- Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration;
- Works consisting entirely of information that is common property and arranged without original expression. Examples include: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources.
The Internet Treaties
The field of copyright and related rights has expanded enormously with the technological progress of the last several decades that has brought new ways of spreading creations by new forms of worldwide communication. Dissemination of works via the internet is the latest development, raising new questions concerning copyright. The World Intellectual Property Organization (WIPO) is involved in the ongoing international debate to shape new standards for copyright protection in cyberspace. The organization administers the WIPO Copyright Treaty (WCT) and the WIPO Performances and Phonogram Treaty (WPPT) often known together as the “Internet Treaties,” which set down international norms aimed at preventing unauthorized access to and use of creative works on the internet or other digital networks. The WIPO Copyright Treaty (WCT) was concluded in Geneva in December 1996 and entered into force in March 2002 (WIPO, n.d.). The WCT mentions two types of subject matter to be protected by copyright:
- Computer programs, whatever the mode or form of their expression;
- Compilations of data or other material databases, in any form, which due to the selection or arrangement of their contents constitute intellectual creations.
Digital Millennium Copyright Act (DMCA)
The Digital Millennium Copyright Act (DMCA) is a United States copyright law which criminalizes production and dissemination of technology that can circumvent measures taken to protect copyright – not merely infringement of copyright itself – and heightens the penalties for copyright infringement on the internet. Passed in May 1998 by a unanimous vote in the United States Senate and signed into law in October 1998, the DMCA amended Title 17 of the U.S. Code to implement internet treaties while providing “safe harbors” to online service providers from copyright infringement by their users (GPO, 1998). On March 10, 2004 the European Union passed the EU Copyright Directive or EUCD, similar in many ways to the DMCA.
Over the past decade, the internet and digital technologies have revolutionized the spread of ideas and information, including creations protected by copyright and related rights. The internet and digital technologies are having a significant impact on the way that copyright content is created, disseminated, and used, with major implications for the copyright system. As the sharing of digital content becomes quick and easy, the spread of open and free software illustrates the viability of emerging business models based on collaborative creativity. The content-delivery role of internet intermediaries such as ISPs and peer-to-peer software companies is also completely evolving, against a background where differing standards of copyright liability apply across national jurisdictions.
With the increased application of technological protection measures (TPMs) to ensure legitimate delivery and use of digital copyright content, the conditions under which beneficiaries of exceptions and limitations are afforded access to TPM-protected content has become an issue of growing concern, including with respect to implementation of the WCT and WPPT. The need for interoperability between copyright content in digital form and digital devices is increasingly apparent, and a number of ongoing standards initiatives in the field of digital rights management are creating ethical implications for users that are not fully understood.
Open Source Software Code
Copyright law ensures that software developed under open source licenses is distributed in accordance with the principles of the movement. Software licensed under the Gnu General Public License, for example, originally developed by Richard Stallman for the Free Software Foundation, can only be modified and distributed provided the source code is made publicly available (Free Software Foundation, 2007). Most open source software is licensed and most licenses share two common elements: the right to payment of license fees is waived and there is a condition that the underlying source code is made available. These licenses rely upon contracts to build upon the protections and rights inherent in copyright law, and are enforceable in court on that basis. The licenses grant rights and permissions subject to conditions that restrict how the software can be changed or distributed – and these conditions are based on intellectual property. In addition, the use of source code from open source developers is often permitted on condition of appropriate attribution to the author of the original source code.
Open Source Licenses
The benefits that open source software may offer include access to source code, community-based development, local skills and capacity building, freedom from vendor lock-in, reduced costs, broad rights, and the ability to customize to local conditions. However, while open source software licensing is increasingly well accepted, these licenses have not yet been fully tested in the courts of various legal jurisdictions. Moreover, they do not contain the warranties, representations and indemnities in favor of the licensee that are standard elements in other licenses. This has given rise to legal and ethical concerns that licensees may be exposed to liability for intellectual property infringement if the infringing code is included in derivative software products. Software innovation is a powerful tool for economic development and intellectual property plays a critical role in promoting research and development in this field and in protecting and rewarding creative software development, whether based on open source or proprietary models. The choice between open source and proprietary models of software is therefore not a decision antagonistic to intellectual property but rather a business decision, based on strategic and ethical choices to be made according to the circumstances of each case.
Open Source and Proprietary Software
Users (governments, enterprises, organizations, and individual citizens) should be free to identify the solution that best meets their requirements. The U.S. Government does not believe that open source software should be advocated in preference to proprietary software and views the growth of the open source movement as beneficial, in that these communities increase the diversity of software technologies available to users (U.S. Chief Information Officer, 2016). The existence of this diversity – including open source, proprietary, and combinations of both software – provides greater choice, which in turn enables users to choose the best alternatives based on their needs, constraints, and associated trade-offs while being ethically compliant.
Fair Use and the Public Domain
Fair use is primarily for the use of copyright-protected work for commentary, parody, news reporting, research, and education. The U.S. Copyright Act lists four factors to help judges determine, and therefore help users ethically determine when a usage may be “fair use.” These relate to:
- The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit, educational purposes;
- The nature of the copyright-protected work;
- The amount and substantiality of the portion used in relation to the copyright work as a whole;
- The effect of the use on the potential market for or value of the copyright-protected work.
If something is in the public domain then copyright protections do not apply. However, the law related to public domain is somewhat complex. A formal notice of copyright on the work is no longer required and just because something is on an unrestricted website does not mean it is in the public domain nor does it mean the copyright owner does not care if you use the material. Determining fair use must be done on a case-by-case basis. All four “fair use” factors must be weighed in determining fair use in a specific situation. Any use for educational or non-profit purposes is not automatically permitted. While various groups have developed educational use guidelines, none of the guidelines has the force of law, and relying on them is ethically controversial.
Issues with Intellectual Property
Some people characterize intellectual property as protectionism and there is ongoing debate as to whether intellectual property laws truly operate to confer the stated public benefits or whether the protection they are said to provide is appropriate in the context of innovations derived from such things as traditional knowledge and folklore. This controversy also contributes to the ethical issues of users of the internet misappropriating intellectual property especially in developing countries where the use of others’ work can be the first step out of poverty or the seed that leads to innovation. Manifestations of this controversy can be seen in multiple forums and the way that countries decide whether to grant intellectual property protection and how much energy they devote to enforcement.
The growing value of intellectual property in a knowledge-based economy emphasizes the need for effective enforcement mechanisms. Intellectual property disputes can be resolved through litigation, although parties are more frequently submitting disputes to Alternative Dispute Resolution (ADR). Approximately 7% of world trade is in goods that infringe on intellectual property and millions of jobs disappear worldwide due to lost profits, countries lose tax revenues from legitimate businesses and workers who pay tax on products sold, and inferior, infringing products compromise public health and safety (WTO, 2017).
High profits and low risk attract all types of illegal organizations to intellectual property rights infringement and counterfeiters and pirates have the contacts, the clientele, and the expertise to return to their illegal operations as soon as they walk out of the courtroom. The TRIPS Agreement introduced intellectual property rules into the multilateral trading system for the first time and the agreement included standards, enforcement, and dispute settlement. TRIPS also defines the main elements of intellectual property protection, the rights that are conferred, and the minimum duration of protection (WTO, 2017).
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