IP Antiquated: Research Report

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By Brenna Robertson
20:56, 8 May 2006 (PDT)


Contents

Abstract

The protection of intellectual property (IP) (also see Intellectual Property has a long history in the world. Laws such as copyright, patent, and trademark. The intension is to protect IP rights of an original inventor or author, who is granted the right to use and benefit from hier particular good or service. Since IP refers to an intangible idea, but covers mere “ideas,” points to a language discrepancy. In reading the history and particulars of the IP rights and laws, there is a need for the expansion or change in the language associated with these terms and the laws identified with it.

Description

This paper will describe and define the history of the terms related to IP, of which include copyright, patents and trademarks. The discussion will include the relevance of the term IP to the current status of the laws.

Analysis and Evaluation

If you were dropped into the middle of the time that Jesus supposedly walked the earth before the Common Era, you would not have hear anything about copyright or even anything about “copy”. A Neanderthal would not have wondered if he should patent his particular way of creating flames for his mammoth meat. Only until recently, as early as the 13th and 14th centuries, were people beginning to think about what would one day be called “Intellectual Property”. Property was always thought of as a tangible idea, property referring to land that one worked or cattle that was regularly tended by a shepherd. But as world civilization developed, industry brought with it literacy and new ways of printing text. For the first time possessions were assumed and regulated under industrial property or tangible property, was also extended thin air, something only held in the subjective mind. People now wanted possession over their original ideas and their words, even their dance steps. IP is the blanket term for all exclusive rights, mainly copyright, trademark and patent in the United States, which affords people the to protect their ideas and profit from them. The term of IP is very new and has a rapid rise in the world vernacular. Determining its history and what exactly these exclusive rights, are is part of my particular brand of research. Maybe I will copyright it.

The idea of copyright or literally the “right to copy” can be traced to the 14th century in England. Moral law preexisted IP, as it is a law meant to deter stealing one another’s written materials and ideas. Ancient Jewish law even states that there should not be a “theft of ideas” in the Talmud. Before it was called copyright in modern terms, it was a series of laws initiated by monarchs wishing to censor available print and distribution, maintaining exclusive profits for the copies they distributed. There was little worry that the books themselves would be stolen or distributed on a mass scale in this period. The reason is that, there were a great deal of illiterate citizens, and the only way to mass produce the books was by copying them by hand, enabling creators to make a profit from it. In Europe, after the Roman Empire fell, reading and writing was commonly done in the monasteries, where literacy rates were no higher. The idea of copyrights and IP was at a standstill.

It is commonly taught in grade school that Gutenberg is the inventor of the printing press, but the impact on European culture, and eventually the colonies of America, is extremely important to the discussion of IP. When Gutenberg released his printing press in the 1450’s in Europe, the ability to make money off of books, primarily IP, skyrocketed. People who owned a printing press of their own started businesses in setting and printing original works and selling them, ultimately increasing literacy. However, the fierce competition for obtaining a printing press enabled printers to sell books at whatever price they wished. Edited and chopped copies of original works were common, theft of the ideas, and monopolizing profits was upsetting to many in the business. This brought rise to the first copyright, or “privilege,” as it was originally called. The Republic of Rome allowed the first privilege to an author for the work called “Phoenix” by Peter of Ravenna in 1491. Ravenna received exclusive rights to the original copy of his work and was free to print it properly and sell. England was not far behind in these types of privileges and it soon spread to the rest of Europe.

Queen Anne’s Act of 1709 was really the first budding US saw of copyright laws. It laid a foundation to protect the author’s work for 21 years, and even covered not yet published works, ideas only!, for 14 years, where they could be renewed after this time. The Act covered the current colonies for England and the future United States was one of them. America was infused with the idea of intellectual property rights, under which is copyright terms, from the beginning. The US Copyright Office was started in 1790 and started issuing copyrights within weeks. Currently the office is housed in the Library of Congress which is our national library and contains millions of copyrighted works. The Library of Congress stated that currently under US law, copyright is “a form of protection provided by the laws of the United States for original works of authorship, including literary, dramatic, musical, architectural, cartographic, choreographic, pantomimic, pictorial, graphic, sculptural, and audiovisual creations.” But there is a snag. The Copyright Office also explains that “copyright protection does not extend to any idea, procedure, process, slogan, principle, or discovery.” So what does?

Patents are generally attached to inventions or manufacturing devices. Early in the 13th century in Europe “monopolies” were granted to people who invented new devices and intended to use them for their own economic gain. Like copyright, this was intended to prevent others from using the same device for their own profit or bastardizing the device and misusing it. England issued a Statute of Monopolies in 1623 where an inventor could protect their particular type of goods or services. Because monarchs charged citizens for these “monopolies” (this is exactly the current meaning of “patent”) and were greedy, they abused the power and gave anybody the right to monopolize anything, even foodstuffs. There was even a noted case of James I in England giving a monopoly or patent to someone who was selling salt. This obviously was a simple abuse of the money acquired with monopolies and was abhorred by Parliament and citizens of the state. Eventually Parliament forced the crown to limit his excessive patents and James repealed all current patents. The law was amended in the Statute of Monopolies and covered only original inventions.

Patent laws have not changed much since this period in England. The same Act set forth by Queen Anne affected the “monopolies” office as well and helped to form the same type of patent process in the United States as a colony. Just as in the early period of US history, the application of a patent is required to pay a fee and submit a description of the invention to the patent office so sufficient recording is possible to protect the inventor, just as in copyright. In some cases, the patent office requires a small working model because patents extend primarily to original inventions in a manufacturing sense. The current patent office website describes that something is able to be patented for anyone who “invents or discovers any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof” and says that it covers anything that is made by man and the process by which the objects are made. But again we have a snag. The patent office also says that “a patent cannot be obtained upon a mere idea or suggestion” and is only granted upon the working machine and goods not just a suggestion or idea of the machine or process. The term IP gives the impression that even an intangible idea can be protected under law, but so far the laws that are covered underneath this term are not consistent with this. Maybe it can be found in trademarks.

In the patent case regarding Davoll et al. vs. Brown the presiding judge was recorded as saying “only in this way can we protect IP, the labors of the mind, productions and interests as much a man’s own as the wheat he cultivates, or the flock he rears.” Even after the term IP was introduced in America in the Davoll case in 1845, the term was rarely used until the development of the World IP Organization in the 1960’s. But if we look strictly at what is described as intellectual property, that is the laws and rights that are afforded to inventors and authors as stated in the copyright, patent and trademark laws, intellectual “property” may be an incorrect term in the end. It really should be called intellectual protection because the term property gives the impression that simply an idea is able to be protected by law, when in fact it is not. It is only the resulting items that are able to be registered and protected in the current laws the US and other industrialized nations have. The World Intellectual Property Organization (WIPO) describes (IP) as any creation of the mind. But that seems contradictory to me. If you look at the history of this term and what is encompasses and even the language of the copyright, patent and trademark offices themselves, you cannot copyright, patent or trademark just an idea. The controversy surrounding IP is completely justified because of these types of contradictions and overlaps. It is not necessarily the intangible idea that is able to be protected by current law but the physical items that can result from it. In reality, IP laws don’t protect the thought; they protect the person who might which to use the thought to their advantage.

Trademark is generally coupled with the term of patents and falls under industrial property because it mostly has a commercial use. Whereas copyright covers “original works of authorship” and may be hard to regulate as some original works are maintained as ideas only, patents are attributed to physical, industrial and commercial products just as trademarks are. Trademark is a certain design or logo that is associated with a company that distributes a particular good or service. The trademark is given to notify the consumer of where their product is coming from and to make it distinct from other goods of the same type. For example, even though McDonald’s and Burger King both sell hamburgers, you know what company you are getting your food from by their trademark or company name. This trademark is registered and is effective for as long as the commercial user keeps using it and can claim authority of the products it sells. Trademarks are governed by the patent office in the United States and trademarks are recognized internationally through the Madrid Agreement that was chartered in 1891 and then redefined almost 100 years later. Because of globalization, trademarks needed legislation over an international level. Now, trademarks are internationally recognized by industrialized nations due to these agreements. But again, the term intellectual property is not appropriate here in its essence. Trademarks are still covering a “thing”, something that is tangible or at least able to be written and drawn, the mark is not the idea itself.

This is where we come to the present day in IP. Because of advancing technology and the extremely wide distribution available in the cut and paste world of the internet, people are scrambling to cover areas that never even existed before, such as the World Wide Web. The Digital Millennium Copyright Act formed in 1998 was a welcome addition to the copyright laws that have been in place for centuries, covering new bases of infringement and unauthorized printing, but new arenas are being invaded by IP issues all the time. There will need to be a new type of language formed as the issue continues and our technological lives expand, because as I have discovered through researching the history of intellectual property, this term may be very obsolete, very quickly.

Works Cited


Edited by Michelle Hodges 13:53, May 20, 2006 (PDT)

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