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On Intellectual Property
As a professional engineer and scientist, I regularly create new intellectual property and navigate intellectual property concerns. I am often amazed and sometimes appalled by peoples' widespread failure to recognize intellectual property and their ignorance of laws limiting its use, despite nearly 300 years of intellectual property law. A Dangerous, Growing Culture of IgnoranceIgnorance of intellectual property law is dangerous and inexcusable. An old (and often upheld) legal maxim states, "Ignorance of the law is no excuse for breaking the law." So, ignorance of intellectual property law exposes many people to legal liability and places them in actionable positions, often inviting substantial lawsuits and judgments against people that don't even realize that they've done wrong. The danger of this ignorance is growing. Peoples' recognition of and respect for intellectual property has diminished as the availability of convenient means with which to duplicate it has increased. Some of these means include document photocopying (xerographic) machines, audio and video recorders, and the "music sharing" service Napster – from which many young people get the notion that music (and perhaps other forms of intellectual property) is "free" (Boynton). Among its other effects, this "Napsterization of knowledge" led to widespread academic plagiarism of which 122 students were accused in 2001 at the University of Virginia (Boynton). That inter-network (Internet) data communication has also increased easy access to the laws themselves makes this ignorance even more inexcusable. In an apparent effort to counter this trend, the United States Patent and Trademark Office stresses:
What Is Intellectual Property?"Intellectual property" (often abbreviated "i.p.") is a broad – and sometimes nebulous – term used to describe one or more product(s) of intellectual endeavor that have been reduced to a tangible form. For something to be considered tangible, it must be capable of being perceived or of being "precisely identified by the mind" (Webster). It does not necessarily need to be in physical form (Austin Community College), such as, for example, the sound of spoken words or music. Examples of intellectual property include:
Intellectual Property RightsIntellectual property rights are defined and supported by various laws, doctrines and other rules. Types of Intellectual Property RightsAssociated with intellectual properties are rights of ownership and attribution. The right of ownership refers to rights of possession and exclusive use, as with most other things. The right of attribution refers to recognition as the creator of a work. For a particular piece of intellectual property, these rights may rest with the same or different person(s) or corporate organization(s). As examples, authors, musical composers, sculptors, painters, performers, and inventors typically sell their rights of ownership but retain their rights of attribution.
Right of OwnershipJust as one may own an object such as a device or a book, one may also own the right to reproduce an object, such as manufacturing a device or printing a book. One may not republish intellectual property owned by another without the owner's permission. Doing so is called infringement, commonly known as piracy. Right of AttributionThe right of attribution refers to recognition as the creator of intellectual property – as the inventor of a device or as the author of a book, for example. In general, attribution should always be given to the creator of a work. Misrepresenting the work of another as one's own work – even if only through omitting an adequate citation – is called plagiarism. Conversely, a work should not be attributed to someone who did not create a work, as doing so could defame the person attributed. A false attribution could cause a famous person to disclaim the attribution, as in the case of The Paradox of Our Time (sometimes titled The Paradox of Our Age), an essay circulated via e.mail that is often attributed to and publicly disclaimed by George Carlin. (The urban legends Web site Snopes.com attributes the essay to Dr. Bob Moorehead, a former pastor of Seattle's Overlake Christian Church.) Another example includes another widely-forwarded electronic mail message alleged to be a 1997 M.I.T. commencement speech given attributed to author Kurt Vonnegut; the message's popularity spawned its use as lyrics for a popular song by cinema director Baz Luhrmann Everybody's Free (to Wear Sunscreen), though Wikipedia's authors cite that the message's source was Mary Schmich's Chicago Tribune column dated 1997/06/01 Advice, like youth, probably just wasted on the young. (wiki:Wear_Sunscreen) In the latter example, attribution to Vonnegut may be justified as a parody, though the republication of the column clearly violates the newspaper's copyright. Intellectual Property DoctrinesA doctrine is a "rule, principle, theory, or tenet of the law" (Black's Law Dictionary). Some common doctrines related to intellectual property include Exclusive Use, Work-for-Hire and Fair Use. Exclusive Use for a Limited TimeGenerally, those crafting intellectual property laws attempt to balance the individual owners' interests with the needs of their society as a whole. Intellectual property laws are designed encourage innovation through granting owners the potential to profit through exclusive use of an innovation for a limited time. The expiration of the owner's time limit allows social benefit through widespread use and encourage building upon the innovation. To avoid the public disclosure requirements and time limits, some owners may choose to protect an intellectual property as a trade secret. Fair Use DoctrineThose other than the owner of a work's copyright are granted limited priviledge to use some of the work's the copyrighted material in a reasonable manner without the owner's consent. (Black's Law Dictionary) Determining whether fair use has been made invloves a process of examining to what extent other interests should override the rights of the copyright owner. The United States Copyright Act (17 U.S.C.A. § 107) explicitly identifies four interests that should be considered:
Some examples of generally-accepted fair use include:
The last example now often takes the form of the purchaser of a music album on compact disc copying it to a computer's fixed hard disk drive (through a process commonly referred to as "ripping") for convenient later playback on the computer or a compatible portable audio device. As long as the purchaser retains the original album, the purchaser retains a right to use a single copy (at any given time) made from that album. Conversely, if and when the purchaser sells the album, the purchaser releases all rights to have and/or use any copies made from that album. The purchaser of a copyrighted work ordinarily does not gain rights to publish copies of the work (including via broadcasting). For example, the purchaser of a book, music album, motion picture or computer software is ordinarily prohibited from publishing copies of the work in any form, and doing so is to engage in the unlawful act of piracy. Just as Xerox was not shut down for creating devices that could copy books, Napster should not have been shut down for creating a device that could copy music; the liability should fall on those who unlawfully republish copyrighted works in whatever form, and only those pirates should pay for their crimes. Shutting down Napster set a bad legal precedent that will likely handicap the development of new technologies that could otherwise enable creative endeavors. Work-for-Hire Doctrine and the Shop Rights RuleIf the one enters into an employment relationship, the ownership of any intellectual property created by that person is governed by well-established rules including the "work made for hire" (sometimes "work for hire") doctrine – which governs the ownership of authored work through copyright law – and the "shop rights" rule. A "shop right" refers to "the right of an employer to use employee's invention in employer's business without the payment of a royalty" and apply to instances in which "an employee during his hours of employment working with his employer's materials and appliances conceives and perfects and invention for which he obtains a patent." According to this rule, the employee must afford his or her employer "a non-exclusive right to practice the invention." (Black's Law Dictionary) The "shop rights" rule effectively defines how "fair use" of an employee's work shall be granted to his or her employer. According to James Riegel, an intellectual property attorney in California's Silicon Valley, the license granted to the employer under the "shop rights" rule is also non-transferable. Intellectual Property LawsThough the attribution of authorship was already of concern to scholars in ancient Greece and the Roman Empire (UK Patent Office), ownership of intellectual property is still a relatively modern concept. Only with the emergence of the printing press in the fifteenth century, the first copyright protection was devised (UK Patent Office). Intellectual property rights are protected by national laws and international treaties. The degree of legal protection available for intellectual property varies greatly by nation. The United States of America, for example, grants the owners of intellectual property legal protection through issuing and regulating patents, copyrights and trademarks. Statute of AnneCopyright law as we know it began with the British 1709 Statute of Anne (passed into law by Parliament on 10 April 1710), which required that only new works could be protected, and then only for a limited time. This protected the public interest by creating a "public domain" into which knowledge would fall (UK Patent Office; Association of Research Libraries). United States ConstitutionCopyright law in the United States is derived from the British common law and Statute of Anne (Association of Research Libraries). With the 1789 introduction of the Constitution of the United States of America (Pilon), the framers of the United States' government sought to "promote the Progress of Science and useful Arts" (Article 1, Section 8) by granting authors and inventors limited time periods during which they would have exclusive use to their respective writings and discoveries (United States of America). At the same time, they defined that copyright law would fall under federal jurisdiction (Association of Research Libraries). United States Copyright ActsThe United States Congress has since passed into law the Copyright Act of 1790, with major revisions in 1831, 1870, 1909 and 1976 (Association of Research Libraries). United States Trademark Act of 1946On July 5, 1946, Congress approved "An Act to provide for the registration and protection of trade-marks used in commerce, to carry out the provisions of certain international conventions, and for other purposes", (15 U.S.C. 1051 et seq.).United States Bayh-Dole Act of 1980Through the Bayh-Dole Act of 1980, Congress now encourages schools to own and protect with patents inventions made at their campuses (Association of University Technology Managers; Council on Governmental Relations). This act appears to have introduced the terms "technology transfer" and "licensing" into the vernacular of many universities. Since the passage of the Bayh-Dole Act, many post-secondary schools have emphasized engaging their students in serious research at earlier ages (Nordheden 234), usually to the benefit of both the schools and their students. Through "active learning", students gain comprehension more effectively (Meyers qtd. in Nordheden 234) and become better able to solve problems outside the classroom (Sabatini qtd. in Nordheden 234), thus also increasing their value as future employees. Early exposure to research methods may eliminate apprehension of and encourage students – especially undergraduates – to continue their education into graduate school and beyond (Compton qtd. in Nordheden 234), resulting in a better-educated workforce. This practice also provides schools with a source of free or inexpensive labor with which to conduct research (Nordheden 234). The Intellectual Property Protection Restoration acts of 2001 and 2002, which may have limited the Bayh-Dole Act, were brought before the United States House of Representatives (as H. R. 3204) and Senate (as S. 2031), respectively, but ultimately failed.
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