Experts predict that because of e-commerce, globalization, and IP piracy, increased standardization of international IP laws will be forced. Unfortunately, this may be at the expense of developing nations. This brings up an entire philosophical discussion; however, in lieu of all of this, there are many jobs that are interrelated to this field now cropping up for lawyers and paralegals.
What is Intellectual Property?
Intellectual property (IP) is a term used that relates to any sort of creation that is intangible in a sense. These can be inventions, commercial symbols, or artistic creations. What all of these things have in common are that they are protected under the law, the same as personal property. The various protections for these intellectual properties fall under laws of copyrights, trademarks, patents, and yes, even, trade secrets. These are all associated with laws that protect the creator, while allowing him/her to publicize at the same time.
The creator, or the rights holder, is entitled to gain profit from his idea. He/she is also entitled to control how that information is used and by whom. The Constitution of the United States gave Congress the power to regulate copyright issues in 1976. The basic law or statute is entitled “Copyright Act of 1976”. This law protects creative works, online text, images, and sound files. Violators of copyright laws can be prosecuted in civil or criminal court. This is all well and good, but it sounds easier than it is.
Does this field interest me?
In order to answer this question, you may need to consider the recent problems that have come about with Intellectual Property. The Internet, in particular, is making it very difficult to control this aspect of law and protect the right holders. By using the Internet, people can generate endless reproductions that are exact replicas to the original and send them anywhere in the world. The music industry is a prime example of this. Vocal artists can no longer make a living just selling their record albums because of all of the Internet foul play. As a result, many are doing concert tours.
This is only a small example of how things are becoming a bit more complicated. Currently, we are facing what people call a “cyber law dilemma”. Although these laws seem do seem to be held in disregard by many, people fear that making stricter laws may be counter productive in our society. There are many groups who are in favor of the current copyright exceptions that permit unauthorized use of works for scholarly or critical purposes or news.
When talking about intellectual property, one must consider that the idea or creation in question is not a “random fluke”. It is most likely the result of lengthy careful research and development by an individual or group of individuals. Technological inventions take years of prototypes. Scientific discoveries result from decades of investigation and study. Literary and artistic and literary creations result from months and years of effort. In order to make sure that the people who spent the time and exerted the efforts get the benefits, the law recognizes four main types of intellectual property: patents, copyrights, trademarks, and trade secrets. These are the four specialized areas for jobs.
The authors of the United States constitution saw the need to encourage and reward inventors. As a result it is written in the constitution, "to promote the progress of science and useful arts, by securing for limited terms to authors and inventors the exclusive right to their respective writings and discoveries." This means that the purpose of these patents was and still is to encourage further progress, particularly in technology and in the field of science. Patent systems exist in most nations of the world and the need is recognized universally.
Patents are granted by the U.S. Patent and Trademark Office (USPTO), a branch of the Department of Commerce. A U.S. patent protects the owner and gives him/her the right to exclude others from making or selling the patented invention in the U.S. for 17 years from the date of the patent. The USPTO examines each application and only those inventions that meet stringent legal standards are considered. The invention must be useful, original, and must not be “obvious over what is already known”. The inventions that get patents are usually inventions machines or manufactured articles or processes. (There are also patents available for new plant varieties.)
Corporations invest billions of dollars into product development and production techniques, all at a risk to them. None of this would happen if there were no protection that competitors could copy their successes. Patents are considered to be property and can be sold and licensed. The Federal Government, many corporations, research organizations, as well as individuals, own patents.
A copyright is another kind of federal protection in the United States based on a right stated in the Constitution. Copyright protection applies to musical, literary, dramatic, audiovisual, computer program expression, and other kinds of works that require authorship. Copyright protection for works begins when the work is first written down or otherwise recorded. This copyright lasts for the life of the author plus fifty years after that. The U.S. copyright law has protected authors and artists in numerous ways since for over a decade. The owner of a copyright has the exclusive right to –
Distribute copies of the copyrighted work
Prepare adaptations, translations, etc.
Perform work publicly
Display the work
The copyright owner may prevent others from doing any of the above.
Trademarks are words, groups of words or logos connected with a product. It is intended to distinguish the particular product from the competitors. Companies use trademarks, or service marks, in the sale of their merchandise. These words and logos are seen in sales everywhere – services, music, sports, drinks, etc. These logos become recognizable to the public and the product is sold because of this. Other companies cannot use a similar mark on their products. Well-known trademarks and service marks as Coca-Cola, Kellogg's, Burger King, AT&T, and Visa.
This is an important right for a business after all the time, money, and effort spent designing their logo. This same “trademark protection” also protects the public against the consequences of confusion - buying something, thinking it was some other brand due to the similarity of the logo. Trademark protection is recognized under state law.
A trade secret is information or an idea that has business or commercial value because it is not generally known. In business, competitors may be tempted to steal another’s ideas and methods. This is called industrial espionage. Trade secret protection is a shield against such actions as industrial espionage.
Trade secret, however, is quite a broad concept. It can include an array of things - business processes and methods, machines, patterns, formulas, and techniques that are supposedly kept secret from one's competitors. Trade secret protection is gained as soon as the idea is created. It lasts for as long as the information is considered a secret. Trade secrets are covered under state law. However, it is possible that this same idea may be derived at properly add fairly by a competitor, perhaps by the use of reverse engineering, perfectly legal and ethical, once the product has been sold on the open market.
In conclusion, all of these variations and exceptions to the IP laws make for interesting debate and even more interesting careers.
- See Top 10 Reasons Most Law Firms Have No Idea How to Hire and Evaluate Patent Attorneys for more information.