24 April 2014
(This is adapted from an article by Thomas G. Field Jr. that appeared in the U.S. Department of State publication Focus on Intellectual Property Rights.)
Intellectual property is a valuable asset for an entrepreneur. It consists of inventions, literary and artistic works, symbols, images, names, designs used in commerce and original expressions of creative individuals.
The key forms of intellectual property protection are patents, copyrights, trademarks and trade secrets. Because intellectual property shares many of the characteristics of real and personal property, associated rights permit intellectual property to be treated as an asset that can be bought, sold, licensed or given away. Intellectual property laws enable owners, inventors and creators to protect their property from unauthorized use.
Inventors, artists and authors — whose work is intangible — face difficulty in earning a living if their claim to their creations is not respected. Unable to rely on locks and fences to protect their work, they turn to intellectual property protection laws.
WHY DO COUNTRIES PROTECT INTELLECTUAL PROPERTY?
Countries know that safeguarding intellectual property rights fosters economic growth, provides incentives for technological innovation, and attracts investment that will create jobs and opportunities for all their citizens.
Intellectual property protections are also critical to consumers. Most advances in transportation, agriculture and health care would not exist without strong intellectual property support.
Copyrights offer essentially the only protection for music, films, written works of fiction, poems, architectural designs and other works of cultural value. The owner of copyrighted material has exclusive rights to reproduce the work, prepare derivative works, distribute copies of the work, and perform or display the work. As creators develop new forms of expression, these protected categories expand. Intellectual property now includes such works as computer programs and sound recordings.
For works created after January 1, 1978, copyright protection generally lasts for the life of the author plus 70 years. For an anonymous work, a pseudonymous work or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first. Only an author or someone deriving their rights through the author, like a publisher, can claim copyright.
A patent gives the inventor the exclusive right to prevent others from making, using or selling a similar product for a fixed period of time — 20 years in most countries.
Patent applicants must negotiate a defendable claim. Because patent claims are as varied as the technologies they protect, applicants must set boundaries of what their invention consists of and what in the invention can be protected from infringement.
To avoid protecting technology that is already available or within easy reach, claims are examined by experts.
Any information that may be used in the operation of a business and is sufficiently valuable to give actual or potential economic advantage is considered a trade secret. Examples are recipes for popular food products, customer mailing lists, advertising strategies and distribution processes.
Trade secrets are usually protected by contracts and nondisclosure agreements. Trade secrets are valid only if the information has not been revealed.
Trademarks are commercial source indicators, distinctive symbols, words or designs that identify certain goods or services produced or provided by a specific person or enterprise. Trademarks are especially important when consumers and producers are in different locations. Consumers need trademarks to seek or avoid the goods and services of particular firms.
In most countries, trademarks must be registered to be enforceable and renewed to remain in force.
Geographical indications identify a good as having a certain quality, reputation or other characteristic attributed to its location of origin. Geographic indications are treated as a subset of trademarks used to prevent consumer confusion.
OTHER FORMS OF INTELLECTUAL PROPERTY
In some countries, certain well-known people can license or forbid the fraudulent use of their names or likenesses for commercial use.
Some countries also protect the ornamental or aesthetic aspects of goods.
THE IMPORTANCE OF INTELLECTUAL PROPERTY PROTECTION
When patents are not available, technology is held back. If inventors had to rely on secrecy to protect their inventions, much important but undisclosed information would never be known by others.
Although effective intellectual property enforcement is important economically, it also promotes common goals. For instance, by enforcing the property rights of pharmaceutical companies, the companies are able to recoup some of their investments in the development of one drug and use those funds to develop other drugs that can be used against other health risks.
Besides encouraging the creation of new technologies, patent and trademark laws are useful to prevent harm posed by counterfeit goods and by falsely labeled medical and food products.
Local cultures also are at stake when works by local artists, authors and musicians are displaced by the illegal sale of pirated music, films and handicrafts.