Intellectual Property is the group of legal rights in things
people create or invent. Intellectual property rights typically
include patent, copyright, trademark and trade secret rights.
Intellectual Property Law Origins
Most people are surprised to discover that Intellectual Property
rights originate with our Founding Fathers in the Constitution
(Article 1, Section 8, Clause 8) which states that Congress
shall have the power "to promote the Progress of Science
and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings
and Discoveries." The right to exclusive ownership and
use of one's inventions and the monetary rewards from giving
others permission to use them complement the other beliefs
of our Founders.
In the middle to late nineteen century, these beliefs grew
into capitalism which embodies the benefits and rewards of
hard work (as remained from Puritanism); the exchange of
business ideas through products and services; and competition
in the marketplace and financial reward for the most popular
or beneficial ideas. It was not accidental that capitalism
had many of the same theoretical bases as Charles Darwin's
notions of survival of the fittest from the same time; author
and Harvard biology professor Stephen Jay Gould* states that
Darwin read Adam Smith prior to writing his "survival
of the fittest" theory . Indeed, intellectual property
law, with exception of patents which preceded the rest in
codification by several centuries, reached major legal codifications
in this same period, during the late eighteenth to late nineteenth
century. These laws sought to ensure that the best and most
popular inventions and creations earned monetary compensation
for their creators. This, in turn, inspired others to create
through discussion and understanding.
The Heart of Intellectual Property Law
The heart of intellectual property law is the balancing of
(a) financially rewarding creation through granting of exclusive
rights to the author and (b) promoting the free flow of ideas
to facilitate more creation. This balance is two-fold. First,
it can been seen as the a tension between rewarding ideas
and spurring new ones. Secondly, it can be seen as a balance
between the "Promotion of Science and Useful Arts"
Constitutional clause above and the First Amendment –
this is an equally compelling tension between ownership of
arts, words and invention and the freedom of Americans to
speak and express themselves without restriction. This balance
is visible through all the laws and all the cases about intellectual
property in the United States. If you keep this tension in
mind, everything else becomes much easier to understand.
With this in mind, consider what rights
are granted under patent, copyright, trademark and trade
secret law by reading those articles in this section.
*Stephen Jay Gould, The Panda's Thumb: More
Reflections in Natural History (New York: Norton, 1982),
p.64 according to www.crosscurrents.org/darwin
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