Article on just what is “Intellectual Property”

Mike Masnick at Techdirt has written the latest in a series of posts which discuss the rationale and basis for what we think of as “Intellectual Property.” It’s a well written series, I’d recommend that you read it. I don’t agree with all he says, but it’s well reasoned.

It’s of particular interest to me because I often counsel people on their creative endeavors who do not know what regime under the umbrella of “intellectual property” their particular endeavor is best, whether it be trademark, copyright, patent, or trade secrets. It’s also interesting because people often think of “cyberlaw” as being the intersection of intellectual property and the Internet, but it really is much more than just that. It’s the application of both new and existing legal principles, whether they be IP or other regulations, to the Internet and other avenues of electronic communications. As more and more businesses go online, it’s rarer that people won’t have some issue that intersects with cyberlaw at one point or another.

Turning back to the article, to me the most important rationale for copyright and patent protection is the protecting the right of the creator to control the use, distribution, or exploitation for their ideas for a limited period of time. Trademark is a slightly different rationale, in that trademarks are tied into a consumer protection rationale and the right to identify the source of particular goods or services to avoid consumer confusion.

So, what rationale do you think is best to apply? Also, what term would you use other than “intellectual property” if you had a choice to do so? Those are certainly interesting questions posed by the article. Food for thought, as they say.

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