WHAT IS INTELLECTUAL PROPERTY?

The phrase ?intellectual property’ has come into common English
language use only within the last two or three decades – mere twinkling of an eye, so far as legal matters go. (The law of copyright traces back to the early 18th century, and even earlier to the practices of the English stationers – the printers and publishers of yore.) On one level, there is no such thing as intellectual property, let alone an intellectual property system.
What we have is number of pieces of legislation – dealing mainly with patents, design rights, trade marks, copyrights and related rights such as those for performers. These establish various devices to protect creative or inventive work, supplemented by patchwork of common law and equitable actions which fill in some of the gaps left by the legislation.
If I write book or letter, paint mural or draw doodle with pen or paintbox computer program, compose symphony or jingle, construct play or limerick, record an orchestra performance or birdsong, or take photo of the family in the garden, I get copyright in my work. The right arises automatically. I make the work: I do not need to mark or register my claim with anyone.
The right lasts very long time – up to 50 years (now 70 years in Europe and the United States) after my death – and is treated as piece of property that I can sell, license, mortgage and bequeath. It is enforceable almost anywhere in the world, because most other countries have similar law. Thus, if I write letter to someone in Britain who makes copy of it there without my approval, that person infringes my UK copyright. I can recover the copy from him and get an injunction against his repeating the wrong.
I can also recover whatever damage or loss his act may have caused me or whatever gains he made from it. Similarly if I invent better mousetrap, or, these days better mouse, (whether for my computer or my mouse farm), I can apply to the Patent Office for patent. So long as my mousetrap or mouse is different from what’s already out there, and is not obvious in the sense that any fool skilled in the art of mousetrap or mouse engineering could have done the same with little mental sweat, then I will be granted monopoly for 20 years from the date when I filed my application. This will prevent anyone in New Zealand from making or selling the same thing without my consent, whether or not they knew of or had ever seen my mousetrap or mouse.
Again, I can sell or license my invention as I choose. If, however, I want protection outside New Zealand – typically, Australia, the US, Canada, Europe and Japan – I must quickly file for similar patents in those countries or regions: an expensive exercise which needs the help of professional local and foreign patent agents. But then, why should buying monopolies come cheaply? I can, of course, choose not to patent and try to keep my invention secret. But the risk then is that anybody is free to copy and sell my invention if they get hold of or reverse-engineer it legitimately. So once I sell or publicise my creation, I have lost the right of exclusivity I had so long as I keep it to myself.
That is as it should be. The right to copy and compete has long been established at common law and is the basic principle of free market economy. The fewer barriers that exist to market entry, the greater are the opportunities for people to work, trade and compete freely, and the greater the resulting public benefit.

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