|
 Protect Your Idea$
Turning Ideas Into Value – Part VII
By Brent
Britton
Is something wrong with
Intellectual Property (IP)? That is to say, are IP laws
good laws or bad laws? Does IP make life better or
worse? Should we keep our IP laws the way they are, or
should we change them?
Reasonable minds can (and
most definitely do) differ on the answers to these
questions. While many, many companies rely heavily on
existing IP laws to build assets and forestall
competition, an increasingly vocal faction insists that
some of our IP laws might have lost touch with modern
technology and business practices. This anti-IP lobby
claims that some IP laws do not serve their
constitutional purpose and should be repealed or
restricted.
Do our IP laws serve their
intended purpose? What is that purpose anyway?
To approach an answer, let’s
first review the basics. IP refers to two things:
1. IP assets –
the stuff you create; and
2. IP rights –
your ownership rights in that stuff.
IP assets include
inventions, works of authorship, brand names, and
confidential information. IP rights include patents,
copyrights, trademarks, and trade secrets.
We typically say that IP
rights “protect” IP assets. So:
-
patents protect
inventions;
-
copyrights protect works
of authorship;
-
trademarks protect brand
names; and
-
trade secrets protect
confidential information.
By saying that IP rights
protect IP assets, we mean that IP rights give the
holder the exclusive right to use the underlying IP
asset. You can use IP rights to exclude everyone else
from using IP assets.
Functionally, and in
extraordinarily general terms, this means that the
holder of an IP right can sue someone to make them stop
using the underlying IP asset. That’s what IP rights
give you, the right to sue people out of your way so you
alone can profit from your IP assets.
When the framers of the U.S.
Constitution famously enshrined the genesis of modern IP
laws within that sacred document, they did so with the
express purpose of advancing the pace of innovation.
“Congress shall have the power…to promote the
progress of science and the useful arts,” they
began, “by securing for limited times to authors and
inventors the exclusive right to their respective
writings and discoveries.”
The basic reasoning seems
straightforward: give people exclusive rights to profit
from their creations – permit them to sue copycats and
thieves – and we as a nation will get more inventions
and more writings and thereby promote progress. Give
people stronger IP rights and they’ll create more IP
assets. More IP, more stuff. Put another way, without
the protection of IP laws, inventors and artists and
writers will be less likely to create new stuff and
progress will stagnate. Or so the Constitutional theory
goes.
IP dissidents suggest that
IP laws create artificial property rights. They claim
that patents and copyrights are contrived monopolies
that would not naturally arise in a free market and are
thus anathema to capitalism. This argument holds little
merit. All property rights are artificial in just about
every respect. You’re ownership rights in your home or
your car are granted, enforced, indeed created by
our system of government. There is no natural law of
physics that dictates that you have the right to prevent
me from driving your car away and using it for myself.
Our government “creates” that right by enacting laws and
rules and procedures that ultimately permit you to call
the police reasonably expecting that I will be caught
and punished on your behalf, and you will get your car
back. But make no mistake; that right is no less
artificial than any IP right. The government creates
them both. We the people (and our elected officials and
the judges they appoint) decide what is lawful and what
is unlawful. If I can convince enough people to
legalize car theft, you’re out of luck.
So, were the Framers
correct? Have our IP laws resulted in more progress?
There is no doubt that massive, miraculous innovative
progress has occurred over the past two centuries. But
have our IP laws had anything at all to do with that?
The anti-IP lobby says no.
Citing research and anecdotal evidence, they claim not
only that that IP laws don’t result in more innovation,
but that IP laws actually hinder innovation. Most IP
scholars regard these arguments as specious, based as
they are on the rather absurd notion that innovation
requires copying; to prohibit copying, therefore, is to
stifle innovation. Ipso facto.
The anti-IP lobby wants the
right to copy stuff. At the risk of overtaxing the
metaphor, they want to steal your car.
For the time being, the
political tide is against them. While the debate rages
on, IP laws remain firmly in place. The conservative
business practice is to avail yourself of every
opportunity they present to you to create assets and
build value for your company.
But lock your car, just in
case.
Brent C.J. Britton is an
intellectual property lawyer in Tampa. Learn more at
www.brentbritton.com.
back to top
|
