intellectual-property law

Introduction

      the legal regulations governing an individual's or an organization's right to control the use or dissemination of ideas or information. Various systems of legal rules exist that empower persons and organizations to exercise such control. copyright law confers upon the creators of “original forms of expression” (e.g., books, movies, musical compositions, and works of art) exclusive rights to reproduce, adapt, and publicly perform their creations. patent law enables the inventors of new products and processes to prevent others from making, using, or selling their inventions. trademark law empowers the sellers of goods and services to apply distinctive words or symbols to their products and to prevent their competitors from using the same or confusingly similar insignia or phrasing. Finally, trade-secret law prohibits rival companies from making use of wrongfully obtained confidential commercially valuable information (e.g., soft-drink formulas or secret marketing strategies).

The emergence of intellectual-property law

      Until the middle of the 20th century, copyright, patent, trademark, and trade-secret law commonly were understood to be analogous but distinct. In most countries they were governed by different statutes and administered by disparate institutions, and few controversies involved more than one of these fields. It also was believed that each field advanced different social and economic goals. During the second half of the 20th century, however, the lines between these fields became blurred. Increasingly, they were considered to be closely related, and eventually they became known collectively as “intellectual-property law.” Perceptions changed partly as a result of the fields' seemingly inexorable growth, which frequently caused them to overlap in practice. In the 1970s, for example, copyright law was extended to provide protection to computer software. Later, during the 1980s and '90s, courts in many countries ruled that software also could be protected through patent law. The result was that the developers of software programs could rely upon either or both fields of law to prevent consumers from copying, and rivals from selling, identical or closely similar programs.

      Copyright, patent, trademark, and trade-secret law also have overlapped dramatically in the area of so-called “ industrial design,” which involves the creation of objects that are intended to be both useful and aesthetically pleasing. Contemporary culture is replete with examples of such objects—e.g., eyeglass frames, lamps, doorknobs, telephones, kitchen appliances, and automobile bodies. In many countries the work of the creators of these objects is protected by at least three systems of rules: copyright protection for “useful objects” (a variant of ordinary copyright law); design-patent law (a variant of ordinary patent law); and “trade-dress” doctrine (a variant of trademark law). These rules stop short of protecting “functional” features, which are understood to include the shapes of objects when those shapes are determined by the objects' practical uses. Nevertheless, the rules combine to create strong impediments to the imitation of nonfunctional design features.

      The integration of copyright, patent, trademark, and trade-secret law into an increasingly consolidated body of intellectual-property law was reinforced by the emergence in many jurisdictions of additional types of legal protection for ideas and information. One such protection is the “right of publicity,” which was invented by courts in the United States to enable celebrities to prevent others from making commercial use of their images and identities. Similarly, the European Union has extended extensive protections to the creators of electronic databases. Computer chips, the shapes of boat hulls, and folklore also have been covered by intellectual-property protections.

Internet domain names

      In the 1990s the exclusive right to use Internet domain names—unique sequences of letters (divided, by convention, into segments separated by periods) that correspond to the numerical “Internet Protocol Addresses” that identify each of the millions of computers connected to the Internet—became a highly contested issue. Domain-name labels enable “packets” of information transmitted over the Internet to be delivered to their intended destinations. The mnemonic character of domain names (e.g., http://www.britannica.com) also assists consumers in locating Internet-based businesses. As commercial activity on the Internet grew, evocative domain names became increasingly valuable, and struggles over them multiplied, especially as a result of the activities of so-called “cybersquatters,” who registered popular domain names with the aim of selling them to businesses at huge profits. The task of allocating domain names throughout the world and of resolving disputes over them has been largely assumed by a private organization, the Internet Corporation for Assigned Names and Numbers (ICANN) (ICANN). With the assistance of the World Intellectual Property Organization (WIPO), ICANN promulgated a Uniform-Domain-Name-Dispute-Resolution Policy to resolve domain-name controversies and has licensed several arbitration services to interpret and enforce it. In 1999 the United States established a similar national system, known as the “Anticybersquatting Consumer Protection Act,” which is administered by the federal courts. Under the law, individuals can be fined up to $100,000 for registering a domain name in “bad faith.” Defenders of the law contended that it was crucial to protect the commercial value of trademarks and to shield businesses from extortion. Critics argued that the legislation was too broad and could be used by companies to suppress consumer complaints, parody, and other forms of free speech.

The World Trade Organization and intellectual-property law

      The Agreement on Trade-Related Aspects of Intellectual Property Rights (commonly known as TRIPS) has contributed greatly to the expansion of intellectual-property law. Negotiated as part of the Uruguay Round (1986–94) of the General Agreement on Tariffs and Trade (GATT), the TRIPS Agreement obligates members of the World Trade Organization (WTO) to establish and enforce minimum levels of copyright, patent, and trademark protection within their jurisdictions. Countries that fail to do so are subject to various WTO-administered trade sanctions.

      The leaders of some developing countries contend that the TRIPS Agreement reflects and perpetuates a form of Western imperialism. Noting that most owners of intellectual property (e.g., the copyrights on popular movies and music, the patents on pharmaceutical products, and the trademarks of multinational food and clothing companies) reside in developed countries, these officials argue that strengthening intellectual-property rights unfairly raises the prices paid by consumers in the developing world. Accordingly, developing countries generally have been slow to implement TRIPS. Some economists, however, maintain that the long-term effect of the agreement will be to benefit developing countries by stimulating local innovation and encouraging foreign investment. Despite the existence of TRIPS, global rates of piracy of software, music, movies, and electronic games remain high, in part because many countries in Africa and Latin America have not met the deadlines imposed by the agreement for revamping their intellectual-property laws. Other countries, particularly in Asia, have formally complied with the agreement by passing new laws but have not effectively enforced them.

Economic and ethical issues

      The tightening of laws governing intellectual property has been paralleled by a steady increase in the economic and cultural importance of intellectual-property rights. The entertainment industry has long been heavily dependent on intellectual property; the fortunes of record companies and movie studios are closely tied to their ability to enforce their copyrights on their products. Similarly, pharmaceutical companies have used the monopoly power created by their patent rights to charge high prices for their products, which has enabled them both to cover the enormous costs of developing new drugs and to make considerable profits. Other, newer industries have become equally or even more dependent on intellectual-property rights. The developers and distributors of computer software, for example, insist that their ability to remain in business is dependent on their power to prevent the unauthorized reproduction of their creations. Intellectual-property protection is widely thought to be even more important to the rapidly growing biotechnology industry, where the development of new techniques of genetic engineering or new life-forms employing such techniques can be extremely expensive. Biotechnology firms argue that, if they were unable to prevent rivals from imitating their creations, they would not be able to recoup their costs and thus would have no incentive to invest in the research and development necessary for scientific breakthroughs. Companies selling goods and services over the Internet have made similar claims concerning the importance of their domain names.

      The strengthening of intellectual-property rights has not met with unanimous approval. Some critics argue that it is immoral for pharmaceutical companies to use their patent rights to set prices for their AIDS drugs at levels that cannot be afforded by most of the people in Africa and Latin America who are afflicted by the disease. Others point out that many patented drugs are developed by using the genetic material of plants found in tropical regions and the knowledge of indigenous groups concerning the plants' medicinal powers. Current patent law, however, awards the exclusive right to market and profit from such drugs to the pharmaceutical companies, leaving uncompensated the countries and indigenous groups whose contributions were essential to the finished products.

Theoretical debates

      The growth and increasing importance of intellectual-property rights have stimulated a vigorous debate among scholars concerning the justification for and the appropriate contours of this body of law. The debate has largely centred around the advancement and criticism of four theories. The first and most prominent of these is an outgrowth of Utilitarianism. Utilitarians argue that the primary problem with intellectual products is that they can be copied easily and that they are “nonrivalrous”—i.e., consumption of them by one person does not prevent their consumption by others. These seemingly benign characteristics result in the danger that, unless the creators of intellectual products are given legal control over their reproduction, there will be little incentive to create them, because creators will be unable to recover their original production costs. Somewhat more specifically, utilitarians urge lawmakers to craft intellectual-property regulations carefully in order to strike an optimal balance between the socially desirable tendency of such laws to stimulate the creation of inventions and works of art and their partially offsetting tendency to curtail the widespread public enjoyment of these products.

      A second theory was inspired by the writings of the 17th-century English philosopher John Locke (Locke, John), and specifically by his account of the origin of property rights. Proponents of this theory argue that a person who labours upon unowned resources has a natural right to the fruits of his efforts, and the state has a duty to respect and enforce that natural right. Theories in this vein are considered especially strong when applied to items such as books, music, and simple inventions, which are created primarily through intellectual labour and which are commonly fashioned from raw materials (facts and ideas) that lie in the public domain.

      A third theory grew more loosely out of the writings of the 18th- and 19th-century German philosophers Immanuel Kant (Kant, Immanuel) and Georg Wilhelm Friedrich Hegel (Hegel, Georg Wilhelm Friedrich) and out of a sentiment, common in western Europe, that artists and authors should enjoy certain “moral rights.” This approach is premised on the notion that private-property rights are crucial to the satisfaction of fundamental human needs, among which is the need for creative expression. Intellectual-property rights are thus justified either because they protect artifacts through which authors, artists, and inventors have expressed their “wills” or because they create social and economic conditions conducive to creativity.

      A fourth, less-well-defined theory contends that intellectual-property rights can and should be shaped so as to help foster the achievement of a just and aesthetically sophisticated culture. Advocates of this approach emphasize the capacity of copyright, patent, and trademark systems—if properly crafted and limited—to promote a vibrant democracy and a participatory and pluralist civil society.

      Each theory has its critics, who either doubt the premises of the argument in support of the theory or contest their application to the law. Together the proponents and critics of the four perspectives have generated a cacophonous debate in journals of law, economics, and philosophy. On occasion, lawmakers have been moved by this debate. In the 1990s scholars of all four stripes denounced the growth in the United States of the right of publicity. Utilitarians argued that the lures of fame and money already provided more than sufficient incentives to induce people to become renowned and thus that no additional creative activity would be stimulated by protecting celebrities against commercial uses of their identities. Labour theorists argued that celebrities were already more than fairly rewarded for their creative efforts; personality theorists noted that a strengthened right of privacy would more effectively prevent illegitimate encroachments upon celebrities' senses of self than the commercially oriented right of publicity; and social planning theorists contended that the right of publicity impeded “semiotic democracy” (in which the many would actively participate in defining cultural meaning). Some appellate courts responded to this chorus of criticism by limiting the scope of the right.

      Another example of scholarly influence involves the proliferation of patents on methods of doing business. Patents of this sort were rarely granted in any jurisdiction before 1998, when an influential U.S. court decision led to a surge in applications for and grants of business-method patents (e.g., the manner in which a company takes orders placed over the Internet or how a company determines the profile of computer users). Scholars have been nearly unanimous in denouncing this development, and in part this opposition led the Patent and Trademark Office to revise its procedures to limit the availability of such patents. Several European Union countries also were hesitant about following the lead of the United States. Such points of contact between scholars and legislators have been rare, however, as the development of intellectual-property law has been largely unaffected by the views of scholars.

Trends

      Despite the strengthening of intellectual-property laws, the growing economic and cultural importance of intellectual-property rights, and a widespread view that such rights are socially desirable, the future of intellectual property remains in some doubt. Intellectual-property rights are threatened principally by the proliferation of technologies that facilitate the violation of copyright and patent rules. At the beginning of the 21st century, the sector most affected by these technologies was the music industry, as the combination of compression technologies and “peer-to-peer” copying systems led to widespread unauthorized copying and distribution of digital music. One such system, known as Napster, acquired 70 million subscribers before courts in the United States compelled its closure. From the ashes of Napster sprang many other less-centralized, and thus less legally vulnerable, file-sharing systems. Partly as a result, sales of authorized copies of recorded music began to decline, and the recording industry attempted to develop procedures to enable it to profit from Internet file sharing.

      Analogous developments threaten copyrights on movies, books, and software. Similarly, the owners of patent rights or other intellectual-property rights on new plant varieties complain that the unauthorized replication of their inventions is common. The creators of these materials have sought (and often have secured) legislative reinforcements of their legal positions, but those reinforcements often are not sufficient to stem violations.

      To combat the threat and to provide themselves with effective protection, many developers have turned to technological shields or to alternative sources of revenue. Encryption systems for music, movies, and software, “terminator genes” that prevent the natural reproduction of genetically engineered plants, and government prizes and subsidies for artistic or technical advances may eventually partially replace intellectual-property law in some areas. Nevertheless, the system of intellectual-property rules is likely to play an evolving and vital role in economic and social life in the 21st century.

William Weston Fisher

Additional Reading

Helpful resources on the development of intellectual-property law are Bruce W. Bugbee, Genesis of American Patent and Copyright Law (1967); Frank D. Prager, “A History of Intellectual Property from 1545 to 1787,” Journal of the Patent Office Society, 26(11):711–760 (November 1944); and Frank I. Schechter, The Historical Foundations of the Law Relating to Trademarks (1925, reissued 1999).An excellent treatment of the law of industrial designs is Ralph S. Brown, “Design Protection: An Overview,” UCLA Law Review, 34(5–6):1341–1404 (June–August 1987). A good general study of the World Trade Organization's TRIPS Agreement is Michael P. Ryan, Knowledge Diplomacy: Global Competition and the Politics of Intellectual Property (1998).The utilitarian argument for copyright protection is criticized in Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies, and Computer Programs,” Harvard Law Review, 84(2):281–351 (December 1970). The Lockean argument is discussed in Wendy J. Gordon, “A Property Right in Self-Expression: Equality and Individualism in the Natural Law of Intellectual Property,” The Yale Law Journal, 102(7):1533–1609 (May 1993). A study of the Hegelian argument is Lynn Sharp Paine, “Trade Secrets and the Justification of Intellectual Property: A Comment on Hettinger,” Philosophy & Public Affairs, vol. 20, pp. 247–263 (1991). The social-planning approach is exemplified by Rosemary J. Coombe, The Cultural Life of Intellectual Properties: Authorship, Appropriation, and the Law (1998).William Weston Fisher

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