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Intellectual Property

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Intellectual Property, defined as those creations of the mind that can be protected by law once they take tangible form. An idea for a story, a recipe handed down through generations of a family, a tune whistled in the street—none of these can be protected by law: but once they are written down, recorded, or even performed in public, then the laws protecting copyright, designs, or patents, can be invoked to protect the rights and interests of the creator—the copyright holder, or the owner of the intellectual property.

The copyright system in most countries of the world rests on this fundamental principle of intellectual property. This provides a mechanism for the orderly buying and selling of rights, their transfer or assignment, and the control of their use nationally and, to some extent, internationally.

Intellectual property covers all works that are original or novel, whether they are literary, dramatic, artistic, or musical—but nothing qualitative is implied in the meaning of any of those words: any work of whatever quality is protected.

Laws protecting intellectual property are drawn up nationally. However, a number of international conventions have attempted to create a system of common protection. The most important for owners of intellectual property are the Berne Convention of 1886 and the Universal Copyright Convention which dates from 1952. Other agreements to protect performers and recording companies were drawn up in Paris and Geneva.

Article 9 of the Berne Convention states that “authors of literary and artistic works protected by this Convention shall have the exclusive right of authorizing the reproduction of these works in any manner or form”.

Intellectual property of any kind—whether literary, dramatic, musical, or artistic—must be in tangible form. Neither the idea behind the creation nor the ink in a book or the paint of a painting constitutes property that can be protected by copyright legislation.

There is no copyright in a name or in the title of a book. However, the owners of brand names and devices, or commercial catchphrases, may well have registered them as trademarks, which are protected in the United Kingdom by the Trademark Acts of 1938 and 1994. In addition, the law of passing off prevents misuse of someone’s name, or of the design and overall appearance of a product, where the confusion is caused or deception can be proved.

Scientific inventions or commercial designs are also protected by the 1988 Copyright, Designs, and Patents Act in the United Kingdom, or in the case of registered designs by the Registered Designs Act of 1949. Further protection may be gained by taking out a patent, under the terms of the Patents Act 1977.

Most forms of protection for intellectual property give a period of time in which owners can exercise their rights. Typically, copyright lasts for 50 years from the date a work was first issued to the public, although in the case of an author of a literary, dramatic, artistic, or musical work, the 50-year period begins after the author’s death. In some countries, the period is longer—70 or even 75 years.

As electronic publishing and electrocopying play an increasing part in the cultural, social, academic, and professional world in which we live, rights of owners of intellectual property have become threatened. The main reason for this is that detection of copying or misuse is becoming more difficult, and the means of registering and collecting payment for exploitation of the tangible forms of intellectual property are not easy to monitor and control.

Designs can be transferred via a Standard Generalized Markup Language (SGML) system, instructions for a computer software programme can be copied in microseconds, and the ways of defining originality become ever harder. The Internet system is one example of a network on which it is impossible safely to control exploitation or misappropriation of intellectual property.

The argument that the free flow of information is important to the academic and intellectual health of the world takes no account of the commercial imperative of the creator. If the creators—authors— can no longer be rewarded for their creativity or originality, then it will soon not be worth their while to create in the first place.

The situation in countries such as China, where it is politically (and financially) expedient to disseminate all intellectual property, whether or not it belongs to the individual concerned, can only lead to electronic and intellectual anarchy. The trading system becomes corrupt, the standard value of original creative work disappears, and the world’s store of intellectual property—both current and future—is permanently and irreversibly bankrupted.

Contributed By:
Richard Balkwill