Intellectual Property Law - An Introduction
by John Bandler
This article introduces general concepts of intellectual property law. Intellectual property (IP) is a term that seeks to describe the value and ownership of one's thoughts, ideas, and mental effort. IP law is a particular legal area that recognizes and gives protection to this IP and the creations of our minds. There are four main areas: copyright, trademark, patent, and trade secrets (I have separate short articles on each).
This is not my field of legal practice, as it is a highly specialized area of law, but I can get you started because I have familiarity with it, teach a course that touches upon it, and can research and write. I also know some accomplished IP lawyers who helped me.
An intangible type of property
"Intellectual property" is an odd term, so compare what "property" typically means -- something tangible that you can touch. [Side note: there are two main types of tangible property: personal property and real property. Personal property means the things we as individuals can easily possess and can be transported, a baseball, a book, a smartphone, an automobile. Real property is real estate, meaning land and the buildings on land, and apartments within buildings].
Intellectual property is not tangible and yet the law protects it. Laws are made by governments for society, and the rationale for intellectual property law is that there is great value in the mental work done by individuals and organizations. Government creates legal protections for IP so that creators can reap sufficient rewards from their work. IP is often referred to as a "negative right", or the power to exclude someone else from doing something. The government essentially gives the IP owner a monopoly (for patents, this monopoly is for a limited period of time).
Sometimes the distinction between physical tangible property and intellectual property can require some analysis. A book is tangible property, physically owned by someone, and there are criminal and civil laws that prohibit someone from stealing the book from the owner (e.g., theft/larceny and conversion). But the book also represents an author's writing, affixed to paper, and that creation is protected by intellectual property law -- copyright -- which prohibits reproducing it. All sorts of intellectual property or confidential data might be stored on or transmitted through a variety of mediums (paper, USB thumb drive, laptop hard drive, or in the "cloud"), which leaves room for debate on whether the storage medium is physical or not. Whatever the medium, intellectual property protections may apply (as well as cybersecurity considerations).
Valuable intangibles mean thinking about licensing
Intellectual property requires us to consider licensing (in addition to ownership). Once upon a time, we purchased a paper book, bought a video tape or video DVD, and we owned that tangible object, subject only to copyright laws and the protections it afforded to the authors and publishers. We were free to use it as we pleased, share it, or resell it -- but not copy it. Today, when we "purchase" an e-book or movie -- such as through Amazon -- we merely obtain a license to read that book and watch that movie, we don't own the book or movie. The license is found within the contract we executed with Amazon (few of us have even read that contract, the terms of service and other documents).
Why intellectual property?
Some debate the relative merits of various IP laws. Some might argue it is unfair for information to be "monopolized", or for companies to reap excessive financial rewards based on their patents, copyrights, or other intellectual property. Others argue there is important societal value in rewarding those who create, and those who sponsor and invest in the creative process. If IP was not protected, companies would not invest in research and development, and authors and musicians could not earn a living creating their works.
Intellectual property protection has deep roots in our country. The U.S. Constitution gives the federal government (specifically Congress) the power "To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries." In other words, our Constitution specifically identifies the need for patent and copyright protections.
The four areas of IP law
There are the four areas of intellectual property law summarized here and covered in more detail in the other four articles:
- Copyright: Gives protection for certain creative works from improper copying. The protected works might be books, online articles, or other writing, art, or music. Intellectual work went into crafting those words, drawings, or music, they were affixed into some type of medium (paper, digital, audio, video), and copyright law seeks to protect these works. It does not protect the ideas, just what was created and affixed to some type of medium.
- Trademark: Gives protection to words, logos, and designs (marks) that a company uses to identify themselves or their product or service. This is so consumers can properly recognize the company or brand, and to prevent confusion or misleading representations by competitors or fraudsters.
- Patent: A right the federal government grants to an inventor to exclude others from making, using, or selling what the invention covers, for a certain period of time. A principal goal of the patent system is to encourage inventors to disclose inventions that are useful to society.
- Trade secrets: A protection and process for keeping certain proprietary information confidential and secret. This could be a recipe, formula, customer list, manufacturing details, or any other confidential information that might give a business the advantage over competitors.
The business challenge (opportunity) with IP
Businesses (and many individuals) face a challenge when evaluating how to identify and protect their intellectual property. Ideally, every person and business could afford to hire a good IP attorney to evaluate every writing they create, and every idea they have and that might have future value. But attorneys are expensive, not every attorney is always right, and even after consulting with a great attorney business decisions still need to be made. As in all areas of business and life, it comes down to risk management, and some basic questions.
- What intellectual property do I have? (Or will I create?)
- How is it protected now? How should it be protected?
- What is it worth to me? What is it worth to others?
- What are the risks to it?
- What are the potential threats? (Copying/plagiarism, improper use, outright theft, etc.)
- What are the potential harms from those threats? How severe are those harms? How frequent might they occur?
- What legal action could I take after being harmed, and what might the result be?
- What (if anything) should we do to manage those risks? Mitigate? Reduce changes of a harm occurring? Reduce potential magnitude of a harm? Etc.
- What are the costs for managing that risk? Cost vs. benefit analysis.
It takes a good and ethical attorney to properly advise on legal risks. Such an attorney will advise you on the relative risks, and whether it is worth investing further. For example, is it worth investing $X in attorney fees plus $Y in filing fees to apply for a patent, based on the benefits of that patent (if granted), and based on the risks of doing nothing? Hindsight is always 20-20, predicting the future is harder! It is a business decision about whether or not to invest to mitigate a particular risk.
Good cybersecurity protects IP
Here is the tie-in to cybersecurity and my work outside of teaching. (Side note: I wrote this series for a course I teach). Every organization holds confidential information, many hold trade secrets, and most hold data that is governed by law. Business needs and legal duties require organizations to protect certain information, and if it is compromised by breach, to investigate and report. All of this means that every organization should devote reasonable resources to improving their security and protecting confidential information and data.
This is a brief summary with many simplifications, bringing complex subject matter to all readers in an understandable and accessible manner. This article is for myself and students, and anyone else in need of information. It is not legal advice nor consulting advice, and is not tailored to your circumstances.
If your organization needs help with protecting its trade secrets and other proprietary information and confidential data, improving cybersecurity, creating or improving your policies, complying with cybersecurity related laws and regulations, contact me. Good policies are an important part of cybersecurity, along with Bandler's Four Pillars of Cybersecurity. Sometimes individuals need help with cybersecurity and investigations too.
If your organization needs help in the specifics of intellectual property law, I can help you find the right person, or see below.
While I remain responsible for what I have written here (subject to my disclaimers in this article and in my website's general disclaimer), I want to thank the following experts in intellectual property law for reviewing this article and providing quality control as needed:
Additional reading (see below articles for references as well)
- Copyright law
- Trademark law
- Patent law
- Trade secrets law
- Students, Learning, and Teaching
- StopFakes.Gov, https://www.stopfakes.gov/welcome
This article is hosted at https://johnbandler.com/intellectual-property-law, Copyright John Bandler, all rights reserved. (See, this writing is my intellectual property, and I am letting people know that, and that also gives me certain legal rights).
This article is also available on Medium.com at https://johnbandler.medium.com/intellectual-property-law-an-introduction-f5125048a3ff (though not updated as frequently and without the references).
Originally posted 12/23/2021. Last updated 04/03/2022.