Creative Destruction

April 25, 2006

An Intellectual Property Primer

Filed under: Uncategorized — Brutus @ 5:59 pm

This post is preliminary to a response I have yet to compose to Adam's post on The Open Source of Art. I believe it's necessary to provide this background first, which is ruthlessly condensed from what it probably should be.

There are three principle types of intellectual property: patents, trademarks, and copyrights. Each of them awards exclusive rights over an intangible creation or tangible invention, which is balanced by a recognized need for a free flow of ideas to foster further creativity.

In the area of patents, a creation might be a business method, a design for a manufactured item, or an invention or improvement on an invention. A patent owner is given a monopoly on use and/or license of the patented creation for a period of 20 years, after which the property falls into the public domain. In obtaining patent rights, the workings of an invention become public information, and others are encouraged to design around the patent to improve technology. If disclosure is undesirable, an inventor may decide not to seek patent rights and keep the invention secret. The recipe for Coke is an example of a trade secret.

In the area of trademarks, a monopoly is granted to use a word, phrase, slogan, design, logo, or combination of these to distinguish the source of certain goods and/or services. Most of us are familiar with trademark use in connection with brand development. Trademarks are renewable in perpetuity.

In the area of copyrights, the creator of a work, such as a novel, a poem, a painting, or a musical composition, is granted a monopoly to copy, modify, distribute, perform, and display the work publicly. Copyright duration for a work created after 1976 is the life of the author plus 70 years, after which point the work falls into the public domain.

Public domain means that anyone, for any reason, can use, adapt, and/or reproduce the work without having to pay a licensing royalty to the creator or his/her assigns. Shakespearian plays are public domain, as are the writings of Thomas Jefferson, or the musical compositions of Johannes Brahms. The mere fact that something is made public does not mean that it is public domain.

U.S. intellectual property law stems from English Common Law. Intellectual property rights are granted in the U.S. Constitution (Article 1, Section 8, Clause 8.), which states that Congress shall have 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 first United Kingdom patent was issued in London in the fifteenth century; in the U.S., the first patent was granted in 1790. The first United Kingdom trademark legislation was in the late nineteenth century; in the U.S., the first Federal trademark legislation was enacted in 1870. In the United Kingdom, the Statute of Anne from the eighteenth century established the first copyright protection; in the U.S., the first copyright law was passed in 1790.

Ongoing tension exists between the right of a creator to enjoy the fruits of his own creation and the public's desire to either make use of other's creations (often in a derivative sense) or simply copy a creative work — especially when technology allows for an efficient and low-cost or cost-free mechanism for doing so. It is considered an infringement of the rights of an intellectual property owner to defy the exclusive rights granted to him or her and enshrined in law. The government does not generally police acts of infringement. It is up to the owners of intellectual property to monitor use of a creation and to seek redress for unlawful use. Unlike other laws, a decision to not seek redress for infringement — sitting on rights — does not relinquish those rights. The monopoly includes the right to tolerate a certain level of infringement.


  1. I think it’s important to distinguish between the “creator,” meaning the person or people who personally crafted the work, and the “creator,” meaning the person or corporation which is legally considered to be the creator of the work.

    Comment by Ampersand — April 26, 2006 @ 1:16 am | Reply

  2. Amp, you’re probably right. As I said, this was ruthlessly condensed.

    That said, a creator is a person, or in the case of collaborative works, a group, whereas an owner may be a corporate entity. Even when creative work is done within the context of a work-for-hire, there is a formal assignment process. This comment applies to patents and copyrights but not to trademarks.

    So an assignee or owner may be a corporation (or similar legal entity), but the creator is a person.

    Comment by Brutus — April 26, 2006 @ 1:23 am | Reply

  3. There are three principle types of intellectual property: patents, trademarks, and ?copyrights.

    As soon as I read that, I immediately thought of trade secrets. You did mention them, but only as a alternative to patents. My understanding is that they are a category of intellectual property in their own right and that the ideas protectable by each form overlapping but non-congruent categories. For example, a business’s list of customers is probably protectable as a secret, but is certainly not patentable, while inventions which have been disclosed can still be patented.

    Comment by Daran — April 26, 2006 @ 9:35 pm | Reply

  4. Trade secrets are an empirical thing, Daran; it’s a secret because you keep it one. If it gets out, too bad for you; you have no protection. You cannot patent something and still hold it as a trade secret.

    An easy example is the formula for Coke. That’s a trade secret; only a handful of people allegedly know the dark chemical processes at the heart of Coke’s hellish empire. It isn’t patented; you are free to come up with your own cola recipe and if it happens to taste exactly like Coke, you’ll be rich. (For about ten minutes, before they find your body at the bottom of the ocean.)

    Comment by bobhayes — April 26, 2006 @ 9:45 pm | Reply

  5. Trade secrets are an empirical thing, Daran; it’s a secret because you keep it one. If it gets out, too bad for you; you have no protection. You cannot patent something and still hold it as a trade secret.

    I could enjoin a former employee from revealing my trade secret, or from exploiting it himself. presumably I could also sue him for the damage to my business caused by him doing this. I don’t know whether I would have a case against a third-party recipient of the secret. My guess is not.

    The point is, that a trade secret is both an empirical thing and a legal thing which the law will protect so long as I (including a corporate ‘I’) act to preserve secrecy. While you’re are correct that patent and trade secrets are mutually exclusive, the example I gave of an unpatentable trade-secret demonstrates that it is a category of intellectual property in it’s own right.

    Comment by Daran — May 1, 2006 @ 5:44 pm | Reply

  6. The government actually rather frequently polices acts of infringement. Sometimes it does this with criminal prosecutions. Another common approach is to have a trademark infringing item blacklisted by customs officials.

    Comment by ohwilleke — May 1, 2006 @ 5:54 pm | Reply

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