The world as we know it will change by the time you’ve finished reading this sentence. That’s how fast innovation is taking place. Suddenly, it’s very important for professionals to understand the basic ideas behind intellectual property, copyright and patents. If you don’t, what you create today might come under fire tomorrow, through no fault of your own.
This article is my attempt to help you understand these terms, and to provide a general overview of the landscape as it stands today. I will not be referencing any particular country or region or law, but will treat the issues as it affects the world as a whole.
Important: This article is only a brief and overly simplified overview of the concepts as I understand it. My definitions and explanations may be inaccurate, may represent my personal views and prejudices, and are not meant to be legal and/or practical advice about patents, technology or intellectual property. Please consult a lawyer before taking any action. Just treat this article as one more opinion on the state of affairs. And don’t forget these terms mean different things in different countries.
What is Property?
The idea of property isn’t alien to any of us. By law, a physical and tangible object can be owned, and the owner has the right to exploit this property for economic and personal gain. Some countries forbid the ownership of certain kinds of physical objects, like guns, nuclear weapons, banned books, head scarves or even websites.
Why is it important to have ownership?
This can be debated, but some of the most important reasons are:
- Scarcity – If you walk into a store to buy a camera and there’s only one in stock, and somebody else walks in for the same camera, what happens? If humans have to be apprehensive about a thing that can be taken away at any moment, they will always be in a state of stress.
- Social development – If you have a shelter for your family, you can live peacefully and be more productive to society as a whole. Also, if you’re skilled with a particular tool, society benefits if they let you use it, rather than an idiot who just covets it but can’t do any good with it.
- Complexity – If humans don’t own and take responsibility for things, who will? The number of humans on earth is in the billions, and the number of physical objects humans need and use is far higher.
- Responsibility – ownership also means there’s a fingerprint. If you do something antisocial, society knows whodunnit.
- Justice – many have tried to define justice, but if fairness is one aspect of justice, then, like any primary school teacher knows, you must be fair to your citizens, and provide an atmosphere of equal opportunity.
What is Intellectual Property?
Intellectual Property is a relatively new term (1867 according to Wikipedia), and not everyone agrees on its meaning. In general terms, though, the definition goes like this:
Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time. – World Trade Organization (WTO)
Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce. – World Intellectual Property Organization (WIPO)
The creations of your mind. That’s what it all boils down to. Here are some examples:
- You create a new cartoon character.
- You put together a new drug.
- You write something down – poems, blogs, software code, etc.
- You design a new mobile phone that you can also eat if you’re hungry.
- You photograph in a public setting.
As humans, we covet things, so there’s no reason why we shouldn’t covet our own creations, even if they are flesh-eating zombies. Yet many have taken up arms against the term ‘intellectual property’, and the laws that have been formed to enforce it. Why?
Why is there so much controversy over intellectual property?
Here are some reasons given by individuals on why intellectual property (IP) isn’t property:
- IP isn’t scarce – If you copy and use it, you will not hinder the owner’s enjoyment of his or her copy. Nobody leaves the ‘store’ without their copy.
- What if another person invents the same thing independently? Basic human rights dictate that given the law of equal opportunity, both must have claim to the same ‘property’. E.g., if a software company claims its code is unique, how can anyone know if somebody somewhere, among the millions of coders worldwide, hasn’t coded some of its parts individually, and possibly prior to this company’s effort? Who should win first prize – the kid who finished the essay first, or the kid who threw his arms up first and said “I’m done”?
- Monopoly – some people believe intellectual property should be renamed intellectual monopoly. E.g., if you own a house and design it in a specific way, it does not give you the right to stop others from building houses. However, if your house is a monument and you charge people for entry, you won’t like it very much if a competitor copied the exact same thing and charge half the price. The competitor’s monument does not affect your monument, only your income. Therefore, intellectual property as a concept is worthless unless the right to exploit it exists alongside. Contrast this to normal property. What you really get with IP is a monopoly on that exact idea or concept or formula, for a limited period.
- It cannot be implemented to everybody’s satisfaction – Study how the world has changed over the last fifteen years. Every form of intellectual property has been copied – designer clothes, movies, songs, scripts, software, drugs, mobile phones, etc. – some have even been freely distributed. That’s the problem with monopolization – it angers those who are left out, and they feel they are being cheated. It’s similar to what happens when a local warlord builds a fence around the only water body, for his private consumption. What do you think is going to happen? Similarly, there is no court or government or corporation on earth that has been able to stem the tide of intellectual property theft.
- It does not make sense – if a thousand years ago a carpenter was popular because of his great skill, and another carpenter opened shop nearby with the same tools, where would the people go? This is the nature of competition – would the first carpenter be angry that the other guy has the same tools, or whether the other guy is probably good enough to take away some of his customers if not all of them? If a company invents a new technology or drug, and another copies it, it does not stop the first company from selling it. What could happen though, is if the second company is a large corporation, and the innovator is a small startup, the large competitor could use its muscle to make life difficult for the newcomer. Even with intellectual property laws in place, who would win this battle anyway?
- Intellectual property is a slippery thing, and can be easily copied – so laws cannot be formulated that will guarantee to work – especially when regular property laws don’t work 100% of the time. So, the guy who gets caught holding the parcel at the end gets screwed – everyone else gets away.
Anyway, it’s for each individual to understand and interpret the meaning of intellectual property. I’ll leave you with this quote from Wikipedia:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson in a letter to Isaac McPherson on August 13, 1813
The two types of intellectual property we are concerned with are:
What is a Copyright?
I’m just going with Wikipedia’s definition, which is as good as any:
A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or “works”. Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.
The key differentiator is that copyrights are usually formed for artistic work. It’s strange how children are taught to copy at school, but then suddenly one day that privilege is taken away!
Some countries have simple copyright application procedures, while others have terrible ones if at all. It is not uncommon for some parties to copy whole movies in another language, in a different country. The biggest problem though, is that in countries where copyright isn’t enforced, any claim to copyright will be a long drawn-out affair. The mentality among those who copy has always been: “Can we get away with it?”
There are a lot of valid points in favor of copyright:
- If you write a script, but somebody copies it and makes a movie without acknowledging or paying you, is it fair?
- If you create music, and somebody rips it off and sells it to those who make corporate videos on the cheap, is it fair?
- If you write a blog post, but somebody at a consulting firm copies your words and sells it as an ebook, is it fair?
What is a Patent?
Let’s stick to Wikipedia again:
A patent grants an inventor exclusive rights to make, use, sell, and import an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process.
The differences between a patent and a copyright, as far as I understand it, are as follows:
- Copyright is usually limited to creative or artistic work. A patent is usually for inventions and processes for businesses or inventors or developers, etc.
- Copyright law stops at ‘copying’. If you copy, you’re punished. Done. A patent not only stops another from copying, but also has additional protection so the holder of the patent can exploit his or her work. It gives you exclusive ‘cloning’ rights.
- A copyright need not always make sense, but a patent must.
- A patent has to be made public. Everyone knows how its done, but nobody can copy it. A work under copyright need not be made public.
Because the two concepts evolved separately, they have different agendas and aims. They also cover different kinds of individuals, products or bodies. Whether they are the right tools to protect intellectual property in the future, is another question entirely.
Who benefits from patents?
Humanity usually benefits from standing on the shoulders of those who have passed. In other words, by copying. Patent laws try to give the holders a temporary time-bound privilege only. There are some strong reasons for patents:
- Incentive – humans need a pat on the back, or their own yacht. The pursuit of financial gain is a strong motivator. If you know your work is protected, you will forge ahead.
- Recognition – humans like to stand out, even if it’s just while facing a mirror. A patent (as does a copyright) acknowledges the holder as the author of the work – for all time.
- If man believes he has the right to earn from the fruits of his physical labor, then why not his intellectual property? Similarly, if man covets material possessions for personal gain, what is wrong in exploiting intellectual property as if it were a tangible privilege?
- The law already allows discrimination in business. E.g., if you choose to sell your services to one business but not another, you don’t have to justify your choice, even if you made the choice based on illegal profiling. A cinematographer or composer has the right to choose whom he or she works with, and the reasons don’t always have be given under oath. If such is the case, then why can’t those who hold intellectual property discriminate based on only those who are willing to pay?
Basically humans are complex creatures, with wildly conflicting thoughts, feelings, motivations and ideas. If humans steal, they also lie. If they tell the truth, they also keep mum. If they cry for help, they also stand as mute spectators when a public accident takes place. Humans don’t like others taking credit for what they have achieved. How would you feel if you start a joke to your group of friends but somebody else cuts you off midway and finishes it for you? We are as envious as we are altruistic.
It is no accident that our patent laws reflect our own selves. Here are some murky areas:
- If a group of employees create something, who owns it – they, or the organization that pays them?
- If an organization attains a patent, exploits it, and goes out of business, the patents can be sold. Does the buyer of the patent have a right to exploit something that they have not created?
- Some laws are being made to extend patents. How long can an organization hold on to a patent? If the number of toilets are scarce, how long can somebody spend some time in it when there’s a queue outside?
- Ultimately, other than the holders of the patent, does mankind really benefit? E.g., if the idea or intellectual property were given away freely, more people would benefit. If a patent holder sells to only those who can pay, the number of people who benefit will be far lesser.
- Is any idea truly unique? Patents are usually acquired for complex inventions. Many of the parts of the invention are built on earlier technologies in the public domain (or even somebody else’s intellectual property). Does this mean only large corporations and organizations can hold on to patents? Who will protect those who can’t afford to patent something, or who, by nature of geography, physical issues, social conditions, etc., does not have access to a patent office or patent law?
- Finally, the mismatch between patent laws among countries means that your geographical location counts. Why should it?
I hope I’ve given you a general overview of the concepts underlying intellectual property, copyrights and patents. To read further, you can start with the What is Intellectual Property? ebook published by WIPO, and Wikipedia.