Intellectual property has been a valuable commodity and a generator of wealth for people and companies throughout modern history. It is an umbrella term that encapsulates all results of intellectual and creative processes. A great number of things fall under its categories, from company names and slogans, to design elements and works of art. Due to its importance for a broad range of applications in the modern world, a great interest in intellectual property exists among both independent creators and international corporations.
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Unfortunately, the field of intellectual property law often encounters cases of companies and individuals attempting to make a profit outside the allowances of the copyright, patent, or other laws that concern intellectual property. This paper will provide an overview of intellectual property, covering its various aspects, issues that it concerns, and the abuse of the legal system that companies perpetrate in this field, as well as the cases that accompany it.
Importance of Intellectual Property
Although the concept of intellectual property has only gained mainstream attention in the last few decades, its origins are found to be centuries old. No exact date for the creation of the intellectual property as a concept is found, but instances of laws that touch upon the ideas of copyright, industrial design, and trademarks can be found dating hundreds of years earlier. This includes the history of patents that often differed wildly for the modern definition of the concept. Some were given for less than a year, while others granted full monopoly privileges.
The ideas that led to the current concept of intellectual property were often designed with almost minimal protection to the rights holder in order to avoid stagnation in the field of invention and various markets that these laws applied. The process of innovation had to be encouraged for a steady stream of new ideas, but the laws around intellectual property can serve to both facilitate new ideas and prevent them from occurring. Until recent years, the time limits on intellectual property were relatively limited and afforded less exclusive rights than the current laws provide.
While this may seem like a negative critique of the original concepts, the reality shows that the current state of the international law surrounding the concept of intellectual property often disregards any cultural benefits that a looser system may bring or the differing economic climate between the countries. This, in turn, prevents people from having access to such things as films, television shows, and other types of art and entertainment that do not have a clear owner, and yet are not allowed to enter the public domain.
The main reason behind the increase in intellectual property rights comes from the wealth that a monopoly on a popular or important product may have. Large international conglomerates have worked for decades to ensure their creations would be protected almost indefinitely.
Actions of companies such as Disney and organizations as the Motion Picture Association of America have done a great number of legal actions with the purpose of making the laws stricter, while at the same time giving more rights to companies that own intellectual property. From a business point of view, these actions are lawful, allow for a larger profit, and provide more security to authors and companies. On the other hand, this trend has led not only to great difficulties in providing international access to the products of intellectual property but also contributed to stagnation in a variety of fields.
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Nevertheless, the protection of the intellectual property is important. Patents allow inventors to gain an advantage over larger and more established corporations. The protection of industrial design provides a guarantee that a creator’s reputation would not be tarnished due to an illegally produced copycat product. Trademarks prevent confusion in the marketplace, and copyright prevents people from making money on a person’s invention without their approval. All of these benefits have served inventors and creators for decades, and have prevented people and companies from exploiting the talent of others through legal action. The results are not always satisfactory to the creators, but the power given to them by the intellectual property rights emboldens them to protect themselves.
Intellectual property right consists of a number of different rights that apply to various types of creations. The process of receiving the rights differs between the types, with most allowing for registration of creations. Not all creations may be registered, however, and some lie in a gray area that requires attention from judicial courts to make a consensus on the matter. The core rights that apply to intellectual property are patents, industrial design rights, trademarks, copyrights, and confidential business information protection. These five components make up the majority of intellectual property rights, with some additional ones that apply in very specific cases.
Patents apply to inventions and are often seen as essential tools for businesses to gain a competitive edge in the market. Electronics companies such as Apple, for example, are focused on creating new types of products with previously unseen technologies. Therefore they heavily utilize patents and their registration in the business dealings of the company. Subsequently, this leads to a great interest in patent litigation with the goal of protecting the new technologies from other companies, with perhaps one of the largest cases being Apple Inc. v. Samsung Electronics Co.
It is an ongoing series of lawsuits that began in 2012, and as of 2017, the companies are still competing with one another in the court of patent law (Cusumano, 2013). Not all things can be patented, however. Some, like software programs, are protected under a different set of rights, and therefore cannot be patented. Others include scientific principles or things such as methods of surgical treatments due to policy reasons.
The first person to file the patent receives the monopoly on the invention, which makes the timing and original secrecy of the invention paramount. The invention must be novel, yet is not required to be absolutely new. It must have clear use in the solution of an existing problem. The invention must be completely operational and must require a level of ingenuity required for its creation. If the invention fits this description, the creator must provide a detailed description of the product’s specifications, creation process, and claims to the exclusive rights of the patent holder. The process is not simple but allows the creator 20 years of monopoly over the invention, during which they may utilize it as they please.
As the title suggests, industrial design rights are focused on the design elements of the intellectual property. They protect the shape, pattern, configuration, ornamentation, and other visual elements of a finished mass-manufactured product. The only object manufactured in numbers more than 50 is allowed to be protected by industrial design rights. Just as the patents, the designs must be original and novel to be officially registered.
The design should not be disclosed before being registered unless the disclosure happened within a year before the application was filed. The application itself contains two elements: a written description and a graphic depiction. The written description explains the design, while the graphic depiction showcases the design through photos or drawings. The designer is considered the owner of the design was not made as a paid order. The time limit on the design lasts for ten years, and just like the patent, it allows exclusive rights for production, import, and selling of the products utilizing the specified design.
Trademarks are created to make a clear distinction between the products of one company and another. The trademark can consist of a word, slogan, design, or sound. The presence of a trademark allows the company to seek monetary damages from the perpetrator, if the product is unmarked, the company can only seek an injunction. The nature of a trademark may vary between companies, leading to situations where specific colors may be considered trademarks.
Also, for names of business operations, a special term is used titled “trade name.” They are protected by the same set of laws as trademarks. Trademarks may be registered and unregistered. To register a trademark, the individual or organization is required to demonstrate the fact that the title belongs to them. Trademarks need to be distinctive or to have a potential of becoming distinctive. Finally, it needs to be registrable. The time limit for a trademark is 15 years, after which the owner must either pay the renewal fee and show that the trademark is still used or lose their rights for this specific trademark.
In 2016, a case was filed by Fashion Week Inc. against the Council of Fashion Designers of America Inc. over the name “New York Fashion Week.” Despite the name being an established title of a major bi-annual event in the industry of fashion, Fashion Week Inc. was able to file a lawsuit after CFDA lost the legal rights to the name of the event which were transferred to Fashion Week Inc. in an earlier ruling. Although the Council of Fashion Designers of America Inc. was handed a preliminary victory in the trademark case, the lawsuit was voluntarily dismissed, suggesting that the parties have settled the disagreement outside of court (“CFDA,” 2017). Such cases are relatively common and often end with settlements outside of court to avoid excessive spending on prolonged legal battles, as well as the negative publicity that might come with them.
One of the most discussed areas of intellectual property is copyright. Copyright determines whether the party has or does not have the right to modify or copy creative works such as books, plays, music, and other works of art. The attention to this component of intellectual property comes from the popularization of the internet and the fact that piracy has changed from illegal selling of unofficial copies of products to online sharing of them in the form of digital information.
The debates around the issue are quite controversial and have led to a variety of legal action. The time limit for copyright protection lasts 50 years past the death of the author. Copyright is granted automatically when a work is created. However, the work can also be officially registered. The owner may reproduce the work, arrange its public performance, publish, translate, adapt, mechanically reproduce, cinematographically present, exhibit, communicate, rent it out, and authorize its use.
Copyright lawsuits are very common and can revolve around a large sum of money due to the artistic nature of copyright. A class action lawsuit against the streaming service Spotify has been settled in June 2017. Although originally the company was charged by two separate musicians, the two lawsuits were soon consolidated. The company was accused of knowingly distributing copyrighted songs without paying for mechanical licenses.
A settlement of $43.4 million was proposed by Spotify representatives as a way to pay off the missing licenses. If this settlement is approved by the judge, the money will be spread between all the people who were not paid their required royalties (“Spotify,” 2017). This is one of the more common scenarios that show how copyright law can serve to protect the interests of the author.
The last core element of intellectual property is confidential business information. This type of information can serve to provide a business advantage to a company or individual in possession of it. Due to the possible advantage that could be gained from it, the information must be kept confidential. There are four types of confidential business information. The first is strategic business information, and it can represent future plans of the company or business strategies. The second is information about products, be it projects in development, or any other similar information. The third is information about the complications at the company.
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Finally, the last one concerns technological secrets such as secret recipes and manufacturing methods. There is no clear limit on protection of confidential information. It often stays a secret until it becomes disclosed to the general public. A popular method of keeping such information hidden is nondisclosure agreements which prevent people from disclosing secret information. However, after the information has been disclosed, it loses all protection.
In recent years a new type of issue has become evident in the field of intellectual property. Established companies have become increasingly aggressive in pursuing individuals who are downloading unauthorized copies of films, music, and software from the internet. While the actions might seem sensible, they often result in unlawful actions on the side of the company. In fact, it has been such a common issue that companies intentionally look for possible gaps in privacy and copyright laws to make a profit. Canadian courts have already rejected a number of cases created with such goal. This practice has gained a lot of negative response from legislators and citizens alike. Hopefully, a better solution will be found in the future.
Intellectual property is an essential component of the modern society. Despite its flaws, the concept has a lot of positives, and perhaps with further reforms, it may again enable people to access and create new ideas. The age of the internet has already changed many people’s perspectives on copyright, and the high cost of litigation has scared off small business owners and independent creators. It is only a matter of time until a change in the system will become a requirement to continue further.
CFDA, WME-IMG handed preliminary victory in ‘New York Fashion Week’ case. (2017). Web.
Cusumano, M. (2013). The Apple-Samsung lawsuits. Communications of the ACM, 56(1), 28-31.