Likely when many people thinking of protecting what they create, they likely think of filing patents and/or obtaining copyright and trademarks. While this is indeed the right line of thinking, it is far more complicated than simply filling out some forms and paying some fees. Intellectual property law is intended to legally protect “the kind of property that results from the fruits of mental labor” (American Intellectual Property Law Association [AIPLA], 2017). According to Raysman, Pisacreta, Adler, and Ostrow (2016) describe intellectual property laws as representing a “bundle of rights” (p. 1-2).
Intellectual property law is intended to protect the rights of the property creators/holders and “govern the enforceability or interpretation of licensing terms, to the exclusion of traditional sources of contract law” (Raysman et al., 2016, p. 1-2). The International Trade Administration (ITA) (2016) asserts that these kinds of laws are “critical to fostering innovation.” Without such protections, according to ITA (2016), individuals and business would not be able to secure “the full benefits of their inventions” and would likely devote less times and resources on research and development.” Additionally, artists would not be able to obtain full compensation for their work and “cultural vitality would suffer as a result” (ITA, 2016). This suggests that not only does intellectual property law protect rights and enforce the law, it also serves to foster business, the economy, research and development, art, music, culture, and the other intellectual ‘fruits of mental labor’ that fall within its protection.
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These “rights and protections for owners of intellectual property are based on federal patent, trademark and copyright laws and state trade secret laws” (AIPLA, 2017). Patents, trademark, and copyright all represent forms of protection. They all do different things. Patents represent “exclusive rights in inventions” which can only be obtained if “they are applied for and granted by a public authority” (Carroll, 2015). Patents are intended to “protect inventions of tangible things” (AIPLA, 2017). But there are certain requirements for obtaining a patent for an invention. An invention must be “new, useful, and demonstrates an inventive step over what is already known within the relevant field of knowledge” in order to be patentable (Carroll, 2015). Furthermore, unlike trademarks and copyright, patents can only be obtained “if they are applied for and granted by a public authority” (Carroll, 2015).
Trademarks are ways of distinguishing one’s products or goods in the marketplace but they do not convey any rights (Raysman et al., 2016). Trademarks protect the “name or symbol that identifies the source of goods or services” (AIPLA, 2017). The degree of protection associated with trademarks depends on several variables which include “consumer awareness of the trademark, the type of service and product it identifies, and the geographic area in which the trademark is used” (Stim, 2017).
Copyright offers more protection than trademark but do not have as many requirements as patents, though it has some requirements in order to realize the full protection of the law. Copyright provides the creator of an original work or works with “exclusive rights” which include being able to “reproduce the work, to publicly distribute copies, to publicly display, publicly perform, or otherwise communicate the work to the public, and to make adaptations of the work” (Carroll, 2015). Protection is not indefinite, with “the length of protection” depending “on when the work was created or first published” (Stim, 2017). The interesting thing about copyright is that much like intellectual property law, copyright represents a bundle of rights as well. The owner of copyright can transfer all of the rights bundled together to someone else or “unbundled” the rights, with the individual rights being distributed to different people (Raysman et al., 2016). Copyright, unlike patents and trademarks, are intended to facilitate sharing information, especially those facts and ideas which are in the public domain (Carroll, 2015).
- American Intellectual Property Law Association. (2017). What is IP law? American Intellectual Property Law Association. Retrieved from http://www.aipla.org/about/iplaw/Pages/default.aspx
- Carroll, M. W. (2015). Sharing research data and intellectual property law: a primer. PLoS Biol, 13(8), e1002235.
- Raysman, R., Pisacreta, E. A., Adler, K. A., & Ostrow, S. H. (2016). Intellectual property
licensing: forms and analysis. Law Journal Press. - Stim, R. (2017). Overview of intellectual property laws. Copyright & Fair Use, Stanford University Libraries. Retrieved from http://fairuse.stanford.edu/overview/introduction/intellectual-property-laws/
