What is Intellectual Property

In law, particularly in common law jurisdictions, intellectual property or IP refers to a legal entitlement which sometimes attaches to the expressed form of an idea, or to some other intangible subject matter. In general terms this legal entitlement sometimes enables its holder to exercise exclusive control over the use of the IP. The term intellectual property reflects the idea that the subject matter of IP is the product of the mind or the intellect, and that once established, such entitlements are generally treated as equivalent to tangible property, and may be enforced as such by the courts.

The most well known forms of intellectual property include copyrights, patents, trademarks, and trade secrets. Patents and trademarks fall into a particular subset of intellectual property known as industrial property.

The purposes of laws dealing with exclusive rights have varied, but they all share in common the appearance of granting the "owner" of the exclusive rights a monopoly on copying or distribution of a protected form of "property". This was originally done to grant a boon to a king's favourite (with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). The United States Constitution accords Congress the power to promote the progress of science and the useful arts by granting exclusive rights to authors and inventors for limited times.

The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analyses associated with the term tend to overlook or even to attempt to defeat the fact, noted by Thomas Jefferson when he took part in wording the exclusive rights clause, that published information is intrinsically free and that in fact this is the whole point of exclusive rights -- to publish, to provide information to the public.

By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup her or his investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his or her invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.

In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rightsholder, even to the detriment of society at large; and this development has attracted some opponents.

In some fields, patent law has had an unintended consequence: treating abstract rules and mental products like concrete ones has stifled innovation in those fields, rather than aiding it.

The four main types of non-physical things considered by this point of view are copyrights, patents, trademarks and trade secrets. Common types of intellectual property rights include conflicting areas of law:

These rights, conferred by law, can be given, sold, rented (called "licensing") and, in some countries, even mortgaged, in much the same way as physical property (especially real property). However, the rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified provisions for fair use for copyrighted works). Some analogize these considerations to public easements, since they grant the public certain rights which are considered essential.

It is important to understand that authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Some use the term "intellectual monopoly" instead, because such so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Others object to the negative connotation of the term "monopoly" and cite the wide availability of substitute goods. Still others prefer not to use a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.