Today is World Intellectual Property Day, the site commemorating it has film clips from a number of creatives discussing the challenges in intellectual property, and a map of events around the world.
Intellectual property refers to anything created by the intelligence of a person (or group of people), which is then owned by the creators according the law, and which the creators/owners can then sell. The laws protecting these rights include trademarks, copyright, patents, and industrial design rights.
The fundamental reason for having intellectual property rights is that it allows creators to be paid for their inventions or creations and in that sense it is a good thing. Musicians, writers, artists and designers get to earn a living. Inventors get to have a temporary monopoly on their invention to earn money from it.
But there are some downsides; defining original work can be challenging, protecting intellectual property rights is difficult, the rights can be inherited and sold like other property, protection is temporary, and the digital world presents its own challenges. I’ll show some examples of these, and point to some ways in which the law is evolving.
Defining Original Work
Richard Prince, a photographer has tested the definition of “original work” in his work, most recently in an exhibition of screen captures taken from Instagram. His contribution to making this into an original work is a single comment. He is currently being challenged in court regarding one of the images. But he’s won similar cases before, notably when he photographed Marlborough ads and edited them.
Protecting Property Rights
It’s up to the holder of the intellectual property to protect their creation, including finding and prosecuting infringers.
Large organisations, or wildly successful artists can afford agencies and lawyers to sort this out for them. For smaller artists it’s more challenging, although one, Matthew Inman – the genius behind The Oatmeal raised the stakes when one content aggregator when after him in a law suit (spoiler alert; he raised 200,000 USD for charity).
When such cases do come to court there tends to be an out of court settlement that includes a non-disclosure clause so few details are known and the publicity around the case ends. Examples include “The Full Monty”, which was alleged to be an infringement on the New Zealand play “Ladies Night”. I saw the play back in the late 80s when it was newly released and sat through the movie in 1998 with a strong sense of déjà vu – for the storyline, the characters, and the jokes. But the case is now reduced to a couple of lines in a wikipedia entry.
Intellectual property rights can, like any other property, be licensed, sold or inherited. (Copyright exists for 50 – 100 years after an author dies for example, the exact length of time depends on the country. )
Which means that the rights can end up being fought over in court, as in Disney’s recent battle over Winnie-the-Pooh.
Patents, which protect intellectual property that defines and describes an invention last for 20 years under the WTO guidelines. Copyright extends beyond the death of the creator for 50-100 years, or – in the US – for 95 years after first publication.
This means that with age items become copyright free; you can republish all of Shakespeare, Dickens and Austen but you’ll need to wait a bit for Barbara Cartland.
It’s also led to a fascinating controversy over the Diary of Anne Frank. According to Dutch law her original diary enters the public domain this year, as it is 70 years since her death in Bergen-Belsen. But under US law, the copyright extends until 2042, and copies are removed from US sources.
(There’s a second controversy around the copyright of the diaries, relating to authorship, in which Frank Otto has been promoted to co-author which means that copyright is extended on the basis of his lifetime. In the meantime versions are being published in Europe to test this decision).
The rise and rise of digital comes about because of the incredible inventiveness of thousands of people. Some of the ideas generated are genuinely original and deserve protection, and some of those have been patented. But there’s been a rise of a counter movement – the “open source” programmers who create code and licence it for everyone to work on.
There have also been over-zealous patenters, in the US you can patent a process without ever developing a working tool. For example the process of assessing someone’s knowledge online and assigning courses based on that test is patented. Even though the exact same process has existed off-line since the Knights of the Round Table. Patent offices seem to be more aware of the digital world now and require a little more originality in a patent that “making it work online”.
In fact some jurisdictions have severely limited the patentability of any software, New Zealand being one. The idea being that software itself isn’t patentable, except in limited examples. The debate continues as to whether this enhances innovation by allowing more people to exploit an innovation, or limits it by removing the right to have a monopoly on a new invention.
Copyright vs Rights Free
The digital world makes it incredibly easy to copy and share content, and I regularly seem claims that “copyright is dead”. There’s a sort of myth around content should be free and copyright is dead but I think this stems from the multiple meanings of “free” in English. Yes content should be free – in the sense of freedom of movement – you are free to express your views, you are free to share content
It doesn’t have to be free – in the sense of no payment necessary. It’s someone’s work. I’m all for openness and sharing of content, which is why this blog is published on a creative commons licence; but recognition and payment should follow the creator.
My perspective is that IP is important but the law is still catching up with the reality, and I’m celebrating World Intellectual Property Day by writing about it.