The "I" in Intellectual Property Law

By: Marisela Mendez

Intellectual Property Law... What is that?

Intellectual Property as defined in the 8th edition of West's Business Law states:

Intellectual Property is property resulting from intellectual, creative processes. Patents, trademarks, and copyrights are examples of intellectual property. The word Intellectual Property is in itself as abstract as the concept.

Furthermore Christopher Kelty points out in A primer in Modern Intellectual Property Law , that although the United States constitution does not specify anywhere that humans have a right to tangible property (ex: land), the constitution does express that congress be given a special right concerning "Authors and Inventors". Specifically stated in Section 8, of the Constitution of the United States of America: The Congress shall have 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 (

Let's think about this definition for a moment. Author Lessig brings out a key point, he has come to the conclusion that based on this definition our constitution, originally intended to have intellectual property in society to be an "instrument", to set the groundwork for a richly creative society that remains subservient to the value of creativity. Nonetheless, at this age in our society we have become so concerned with protecting the instrument that we are loosing sight of the value(Lessig 19,2).

And is he the only one who sees this?

Not quite. Christopher Kelty seems to agree. Through research it shows that the framers, just like any legislative body, had different takes on what they were trying to accomplish by establishing what has come to be the Intellectual Property Law. Thomas Jefferson has historically been noted through his different letters and through his writing, particularly in a letter to Issac McPherson considering how "unreasonable" he sees the idea of making "ideas to be property". It sounds as if Jefferson agreed on giving ownership to ideas solely on, as Kelty put it, having a balance. A balance between the restriction of free ideas, and meeting the need found in rewarding those individuals who made social progress, and improvements in any "creative" way throughout their lives; it seemed fair in comparison to their societal contribution. The protection existed for the benefit of society, not merely for individual benefit and profit.

Today, however, the concept of "owning ideas", has taken literal form. Continuing within the historical tract, the definition of Intellectual Property Law, is changing both in meaning and purpose; it is loosing it's historical purpose and societal value. The implied meaning is constantly evolving to meet technology demands, and for differently cultured societies, for centuries to come. Today, this is how the World Intellectual Property Organization entails the Concept of the Intellectual Property:

" The Concept of Intellectual Property"

1.1 Intellectual property, very broadly, means the legal rights which result from intellectual activity in the industrial, scientific, literary and artistic fields. Countries have laws to protect intellectual property for two main reasons. One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

1.2 Generally speaking, intellectual property law aims at safeguarding creators and other producers of intellectual goods and services by granting them certain time-limited rights to control the use made of those productions. Those rights do not apply to the physical object in which the creation may be embodied but instead to the intellectual creation as such. Intellectual property is traditionally divided into two branches, "industrial property" and "copyright."

1.3 The Convention Establishing the World Intellectual Property Organization (WIPO), concluded in Stockholm on July 14, 1967 (Article 2(viii)) provides that intellectual property shall include rights relating to:

  • literary, artistic and scientific works,
  • performances of performing artists, phonograms and broadcasts,
  • inventions in all fields of human endeavor,
  • scientific discoveries,
  • industrial designs,
  • trademarks, service marks and commercial names and designations,
  • protection against unfair competition,
and all other rights resulting from intellectual activity in the industrial, scientific, literary or artistic fields (

Going into detail, the Intellectual Property Law System, today can be briefly understood as is explained in the Web-site How Stuff Works : The United states government maintains copyright and patent programs to ensure that everybody is able to profit from their original creative works. It goes on to explain that the main reason is not for profit, although it feels like it, but to give the creator legal control over when, where and how his or her creation is published or used in the United States. The United States Patent and Trademark Office (USPTO) is an Agency of the United States Department of Commerce. The Agency, as described in their official site , leads efforts to develop and strengthen both domestic and international intellectual property protection and advises the Secretary of Commerce, the President of the United States, and the Administration on patent, trademark, and copyright protection.

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What is Copyright?

A copyright is a from of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished. The 1976 Copyright Act generally gives the owner of copyright the exclusive right to reproduce the copyrighted work, to prepare derivative works, and to distribute copies or the copyrighted work, to perform the copyrighted work publicly, or to display copyrighted work publicly (USPTO copyright section).

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What is a Patent?

A patent for an invention is the grant of a property right to the inventor, issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions. Under certain circumstances, patent term extensions or adjustments may be available. The right conferred by the patent grant is, in the language of the statute and of the grant itself, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee must enforce the patent without aid of the USPTO. There are three types of patents: 1) Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof; 2) Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and 3) Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant (USPTO Patent Section).

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What is a Trademark?

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO (USPTO Trademark Section).

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Well, one thing is for sure, after dipping my thoughts a bit in the Free Culture, a hardback that critically analyzes, as author Lawrence Lessig states in the title, "How big media uses technology and the law to lock down culture and control creativity", I agree, they had me on lock down. I am guilty of only seeing the "I", in the purpose and benefit of having the Intellectual Property Law.

I have not really captured what we could be as a society, if we were collectively steered by media, and by our government differently. If as a society we did as before, thought things out more on our own, to oversee how our actions could be more beneficial, for everyone.

Sadly however, at this time this isn't the case. We, the upcoming generation, currently have the unbearable, invisible, individualistic outlook of growing up only to hope we will be "well off" someday. For the most part, this Is It. There is not society; there Is Us.

Continuing with this philosophical approach, it is safe to say that the immediate outcome of things is really what is drilled as most important to us, today in the pop-culture era. We don't get as many messages regarding the importance of having a historical foundation of concepts. On how caring for humanity in general can benefit everyone, as much as we hear about how great it is to be financially "well off".

If we followed Mcluhan's take on what he coined as the "Globalvillage", if the purpose of laws, and technology were rooted more on bettering our living relations and conditions as a human race, as a global society, our way of living at home and around the globe could be much more rewarding, as the "Globalvillage" that we are, literally.

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