The problem with “intellectual property”

I recently read an article by Richard Stallman where it was suggested that “if you want to think clearly about the issues raised by patents, or copyrights, or trademarks, the first step is to forget the idea of lumping them together, and treat them as separate topics”. The essence of the article is that lumping copyrights, patents, and trademarks together and calling it “intellectual property” can be distorting and confusing. Seeing as how I am in my first year of law school and pretty much everything seems distorting and confusing I decided that it might be helpful, at least for me, to briefly visit the basics of each area.

Patents

The World Intellectual Property Organization describes a patent as an exclusive right granted for an invention, which is a product or process that provides a new way of doing something, or offers a new technical solution to a problem. In Canada patent rights last up to 20 years.

Patents fulfill several useful functions. The first is creating an incentive to invent. The Canadian government’s guide to patents states that “without the possibility of patent protection, many people might not take the risk of investing the time or money to create or perfect new products”.

Another function of patents is to benefit the public at large by encouraging disclosure of innovations to the public. In Canada patent applications are made public 18 months after filing. Making innovations part of the public record allows them to be exploited by anyone, after expiration of the patent, and encourages perpetual improvement by other inventors. In Canada 90 percent of patents are for improvements to existing patented inventions.

Copyrights

A copyright is an exclusive right to copy a creative work or to allow someone else to do so. Copyright covers such things as literary, dramatic, musical and artistic works. Creators automatically acquire a copyright when an original work is created. In Canada copyright exists for the life of the author plus 50 years following their death. The main function of copyright is to reward and protect creative endeavour.

One main difference between patents and copyright is the area of public disclosure. As Richard Stallman notes “copyright law was designed to promote authorship and art, and covers the details of expression of a work. Patent law was intended to promote the publication of useful ideas, at the price of giving the one who publishes an idea a temporary monopoly over it”. Taking an existing, patented invention and adding or modifying a single component can be lawful and may well lead to a new patent. Writing a new and improved ending, or an extra chapter, for an existing novel is deemed to be copyright violation even if such an addition were widely viewed as a marked improvement to the existing work.

Trademarks

The Canadian government’s guide to trademarks defines a trademark as “a word, a symbol or a design (or a combination of these features) used to distinguish the wares or services of one person or organization from those of others in the marketplace”. Trademarks serve to identify a particular business/organization as the source of a good or service. Registering a trademark is not essential to its creation and a trademark that remains in use can exist indefinitely.

The function of trademarks is to ensure clarity among consumers regarding the source of a product or service. A word or symbol may be deemed a trademark in relation to a particular product but this does not necessarily mean that other companies are barred from using the word or symbol in a different way. This was illustrated in 2006 when the Supreme Court of Canada ruled that a small restaurant chain named “Barbie” was not violating the trademark of Mattel because this use was not likely to create consumer confusion with Mattel’s dolls.

Conclusion

So what do you think? Are the fundamental concepts behind, patents, copyrights and trademarks so different that it’s a grave mistake to refer to them all as “intellectual property”? Stallman also argues that the phrase is problematic in that it “carries a bias that is not hard to see: it suggests thinking about copyright, patents and trademarks by analogy with property rights for physical objects”. Is it time to retire “intellectual property”?

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