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The Future of Intellectual Property Law

intellectual-lawIn 1623, the British Parliament passed the Statute of Monopolies, which proclaimed that inventors of new technologies would be granted sole control over the design and manufacture of those devices.

In effect, the statute was the West’s first-ever legal support of intellectual property, and in the coming centuries, the ownership of ideas would swell into an exceedingly complex legal field. In the modern era, intellectual property theft is one of the most expensive crimes a business can commit, and infringement of copyrights and trademarks can irreparably damage reputations — and profits.

Yet, in recent years, more and more professionals are questioning whether intellectual property rights have a place in our increasingly cooperative society. As the Internet and other emerging technologies continue to change our perception of ownership, what is the future of intellectual property law?

The Past

American intellectual property law is intertwined with the history of the nation; each of the 13 colonies had a distinct body of patent law before the Constitution was drafted and signed. Unfortunately, these separate, state-governed legislations degraded the very idea of intellectual property law: A patent granted in Massachusetts was not protected next door in Connecticut, making moot state protections of copyrights and patents. Thus, within the Constitution, the federal government claimed ultimate authority over intellectual property rights, precluding states from interfering in intellectual property disputes and thereby unifying the system nationwide.

Throughout the decades since 1790, U.S. intellectual property law has morphed and expanded. In 1834, the Supreme Court decided various works of writing, including journalism and private letters, were subject to ownership, and in 1886, the Berne Convention tackled the issue of international intellectual property protection. Slowly, the duration of the federal protections extended from 14 years to 28 years to the life of the author plus 70 years, in some cases. As technology changed, so did copyright law, and in the 1990s, the courts ruled that computer software was worthy of patenting. This long, rich history of intellectual property law has shaped how creation must occur in our country today.

The Present

Nearly anything a person or company creates can be protected by U.S. intellectual property law. As a result, modern intellectual property law is multi-layered and complex, despite its necessity and ubiquity in the world at large. Fortunately, entities seeking protection have a relatively streamlined process of application considering the nuances of the legal system.

Authors and inventors have three basic options when it comes to intellectual property law: patents, copyrights, and trademarks. The first two are fairly straightforward — Patents govern inventions or unique features of inventions, and copyrights concern tangible and intangible works of art, such as writing and music.

Trademarks are comparatively vague. Essentially, an entity can file for trademark protection on any asset that distinguishes one party from another. Usually, a company will hold trademarks on words, phrases, symbols, and designs essential to its brand; McDonald’s widely used slogan “I’m Lovin’ It” is trademarked, as is Target’s red and white, circular logo.

However, it is important to note that the patent is the only intellectual property that must be filed in order to receive protection. The United States employs a use-based rule to copyright and trademark law, meaning essentially that everything is protected until there is a dispute, upon which time the quarreling entities must demonstrate who was the true progenitor of the concept. Still, it is valuable to physically file for copyrights and trademarks to avoid potentially expensive intellectual property legal battles.

The Future

brandingThe Internet is a massive data dump with little regulation, and it is well-known that Web users have historically rampantly used, reused, and abused intellectual property with few repercussions. In direct response, governments have increased vigilance for intellectual property law online, and the harsh penalties have scared many users from creating, sharing, and becoming involved with any online content whatsoever.

This has prompted many businesses, which perhaps most staunchly support intellectual property law, to begin calling for copyright and trademark reform to ensure adequate protection while allowing for creativity and innovation online.

Plenty of businesses see unending benefits in expanding intellectual property use. By allowing online audiences to engage with content and become creators, businesses can inflate their influence and garner new, supportive fans and customers. Thus, businesses as well as individuals have begun to release more content under Creative Commons licenses, which allows their concepts to be manipulated more or less freely.

However, it remains as important as ever to give attribution to original designers and authors, and the Internet’s reluctance to do so ensures that formal copyright and trademark systems will remain in place for at least the foreseeable future. Yet, perhaps in the next decade or so, we will see a loosening of strict intellectual property law and an acceptance of the power of cooperation and community on creation.


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