<< Chapter < Page Chapter >> Page >
This is a very broad primer in intellectual property law from the perspective of its original justification, and the basic legal and institutional distinctions that accompany it in the modern period (roughly 1700-2000).

The role of law in modern society

The importance of law in modern societies is hard to overestimate. The systems are complex, the institutions arediverse and range from small to mammoth, and the number of people involved, from para-legal to federal judge, can only beproof of its central role in society. And yet, for the most part, law and legal issues are left to lawyers, legal theoristsand the occasional sociologist. For most people, the law is only reluctantly confronted during those signature events inlife: marriage, paying taxes, immigrating, or suing the buttwipe in the SUV who smashed up your right-hand rear-view mirror. Andso it should be.

Intellectual Property (IP) Law, however, seems to have broken this mold. For about twenty years, IP lawhas slowly become something more and more people confront. It is not only becoming easier to violate the law, due to changingtechnology, but it is also becoming much easier and more common for people to use the law to police their own intellectualproperty. In order to understand what this body of law consists of, where it came from, and what it's original justification andcurrent uses were and are, it's necessary to look more carefully at both the law, and the reasons for its existence.

The origin of american intellectual property law

Intellectual Property law stretches back at least to the 17th century, and depending on the definition, further. However, aswith many modern government institutions, it was given a special place in the American constitution. It is interesting to notethat the US constitution does not specify anywhere that humans have a right to tangible property such as land (though the 5thamendment guarantees that there shall be no government taking of property without just compensation), but it does insist that theCongress of the United States be given a special right concerning "Authors and Inventors":

To promote the Progress of Science and useful Arts, by securing forlimited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
This statement, in Section 8 of the US constitution, is the solelegal justification for the creation of the immense body of law and diverse institutions that we now live with. Implied by this phraseare both economic and social justifications.

The inclusion of this phrase in the constitution is by no means arbitrary. It was, like the rest ofthe constitution, extensivvely debated by the framers. Perhaps one of the most famous statements about intellectual propertycomes from Thomas Jefferson. Jefferson's 1813 letter to Isaac McPherson has been very widely quoted in the context of debatesabout the role of intellectual property. In it, he explains why he considers it unreasonable to consider ideas to be property.

It has been pretended by some, (and in England especially,) that inventors have a natural andexclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But whileit is a moot question whether the origin of any kind of property is derived from nature at all, it would be singularto admit a natural and even an hereditary right to inventors. It is agreed by those who have seriouslyconsidered the subject, that no individual has, of natural right, a separate property in an acre of land, forinstance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common,is the property for the moment of him who occupies it; but when he relinquishes the occupation, the property goes withit. Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then,if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive andstable property. If nature has made any one thing less susceptible than all others of exclusive property, it is theaction of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it tohimself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannotdispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every otherpossesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as hewho lights his taper at mine, receives light without darkening me. That ideas should freely spread from one toanother over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have beenpeculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, withoutlessening their density in any point, and like the air in which we breathe, move, and have our physical being,incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be asubject of property.
The passage does not end there (indeed, the whole of the letter, as with most of Jefferson's writings, is incrediblyerudite, and goes on at length about the particular invention--a grain elevator--which McPherson had sought hisadvice for. See the supplementary links for more information.). Jefferson recognized the subtle balance thatmust exist between the need to reimburse inventors for their hard work, and the "embarrassment" of giving them solemonopoly rights to an idea, something Jefferson clearly considered unnatural, he continues:
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas whichmay produce utility, but this may or may not be done, according to the will and convenience of the society,without claim or complaint from any body. Accordingly, it is a fact, as far as I am informed, that England was, untilwecopied her, the only country on earth which ever, by ageneral law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in agreat case, and by a special and personal act, but, generally speaking, other nations have thought that thesemonopolies produce more embarrassment than advantage to society; and it may be observed that the nations whichrefuse monopolies of invention, are as fruitful as England in new and useful devices.
Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I knowwell the difficulty of drawing a line between the things which are worth to the public the embarrassment of anexclusive patent, and those which are not.
Jefferson's explanation references both issues of economics, the so-called utilitarian justification for granting monopolies,as well as a social one: that the granting monopolies for ideas is an inherently difficult and dangerousthing to do.

Questions & Answers

how do they get the third part x = (32)5/4
kinnecy Reply
can someone help me with some logarithmic and exponential equations.
Jeffrey Reply
sure. what is your question?
okay, so you have 6 raised to the power of 2. what is that part of your answer
I don't understand what the A with approx sign and the boxed x mean
it think it's written 20/(X-6)^2 so it's 20 divided by X-6 squared
I'm not sure why it wrote it the other way
I got X =-6
ok. so take the square root of both sides, now you have plus or minus the square root of 20= x-6
oops. ignore that.
so you not have an equal sign anywhere in the original equation?
Commplementary angles
Idrissa Reply
im all ears I need to learn
right! what he said ⤴⤴⤴
what is a good calculator for all algebra; would a Casio fx 260 work with all algebra equations? please name the cheapest, thanks.
Kevin Reply
a perfect square v²+2v+_
Dearan Reply
kkk nice
Abdirahman Reply
algebra 2 Inequalities:If equation 2 = 0 it is an open set?
Kim Reply
or infinite solutions?
The answer is neither. The function, 2 = 0 cannot exist. Hence, the function is undefined.
Embra Reply
if |A| not equal to 0 and order of A is n prove that adj (adj A = |A|
Nancy Reply
rolling four fair dice and getting an even number an all four dice
ramon Reply
Kristine 2*2*2=8
Bridget Reply
Differences Between Laspeyres and Paasche Indices
Emedobi Reply
No. 7x -4y is simplified from 4x + (3y + 3x) -7y
Mary Reply
is it 3×y ?
Joan Reply
J, combine like terms 7x-4y
Bridget Reply
how do you translate this in Algebraic Expressions
linda Reply
Need to simplify the expresin. 3/7 (x+y)-1/7 (x-1)=
Crystal Reply
. After 3 months on a diet, Lisa had lost 12% of her original weight. She lost 21 pounds. What was Lisa's original weight?
Chris Reply
what's the easiest and fastest way to the synthesize AgNP?
Damian Reply
types of nano material
abeetha Reply
I start with an easy one. carbon nanotubes woven into a long filament like a string
many many of nanotubes
what is the k.e before it land
what is the function of carbon nanotubes?
what is nanomaterials​ and their applications of sensors.
Ramkumar Reply
what is nano technology
Sravani Reply
what is system testing?
preparation of nanomaterial
Victor Reply
Yes, Nanotechnology has a very fast field of applications and their is always something new to do with it...
Himanshu Reply
good afternoon madam
what is system testing
what is the application of nanotechnology?
In this morden time nanotechnology used in many field . 1-Electronics-manufacturad IC ,RAM,MRAM,solar panel etc 2-Helth and Medical-Nanomedicine,Drug Dilivery for cancer treatment etc 3- Atomobile -MEMS, Coating on car etc. and may other field for details you can check at Google
anybody can imagine what will be happen after 100 years from now in nano tech world
after 100 year this will be not nanotechnology maybe this technology name will be change . maybe aftet 100 year . we work on electron lable practically about its properties and behaviour by the different instruments
name doesn't matter , whatever it will be change... I'm taking about effect on circumstances of the microscopic world
how hard could it be to apply nanotechnology against viral infections such HIV or Ebola?
silver nanoparticles could handle the job?
not now but maybe in future only AgNP maybe any other nanomaterials
can nanotechnology change the direction of the face of the world
Prasenjit Reply
At high concentrations (>0.01 M), the relation between absorptivity coefficient and absorbance is no longer linear. This is due to the electrostatic interactions between the quantum dots in close proximity. If the concentration of the solution is high, another effect that is seen is the scattering of light from the large number of quantum dots. This assumption only works at low concentrations of the analyte. Presence of stray light.
Ali Reply
the Beer law works very well for dilute solutions but fails for very high concentrations. why?
bamidele Reply
how did you get the value of 2000N.What calculations are needed to arrive at it
Smarajit Reply
Privacy Information Security Software Version 1.1a
Got questions? Join the online conversation and get instant answers!
QuizOver.com Reply

Get the best Algebra and trigonometry course in your pocket!

Source:  OpenStax, Text as property/property as text. OpenStax CNX. Feb 10, 2004 Download for free at http://cnx.org/content/col10217/1.7
Google Play and the Google Play logo are trademarks of Google Inc.

Notification Switch

Would you like to follow the 'Text as property/property as text' conversation and receive update notifications?