Intellectual Property and the Internet: "You Can't Sell It If You Give It Away."

By Simmons, Edlyn S. | Searcher, January 1995 | Go to article overview
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Intellectual Property and the Internet: "You Can't Sell It If You Give It Away."


Simmons, Edlyn S., Searcher


Manager, Patent Information Science Group, Marion Merrell Dow Inc.

It was sometime in the 1960s on the old Tonight Show. The featured guest was the renowned strip-tease artist, Gypsy Rose Lee. She walked onto the set wearing a stunning sequined gown with a high neck, long sleeves, and a long skirt, slit to the knee. The host (Jack Paar, if memory serves) commented that Gypsy's outfit seemed uncharacteristically modest for a woman in her line of work. "You can't sell it," she replied, "if you give it away." A profound truth, simply stated. Without meaning to, Gypsy had summarized the legal status of intellectual property!

The U.S. Constitution and the laws of most other countries guarantee authors, inventors, and other innovators the right to exclude others from making, using, selling, and otherwise profiting from their innovations. But there are strict limits on those rights. The innovator must follow the appropriate laws and regulations to stake a claim to the property he or she wants to protect.

Protecting intellectual property is not the responsibility of the government: it is up to the owners of intellectual property to prosecute pirates and infringers through the courts. Owners of intellectual property who fail to defend their rights lose their rights.

Owners of trade secrets who reveal the secrets to potential competitors without swearing them to secrecy can lose both the secrets and the right to punish competitors who use them. ("You can't stop me from selling this chicken, Colonel Sanders. You didn't tell me the recipe was a secret before you fired me.") When a trademark owner permits others to use the mark without acknowledging the relationship between the trade name and the owner of the trademark, the mark becomes a generic term, which may be used freely to describe the underlying product. Name your company "Searchers 'R' Us" or serve Pepsi Cola to customers who order Coke, and see how long it takes to get sued.

Authors and artists who publish without copyright notices or fail to file suit against plagiarists lose their work to the public domain. When 2 Live Crew recorded a song based on "Oh, Pretty Woman," the copyright infringement suit went all the way to the Supreme Court. the Court ruled that the recording did not infringe because it was a legitimate parody.

Inventors can lose the right to obtain a patent if they make their invention public before filing a patent application. Patentees can inadvertently dedicate their inventions to the public if they fail to sue infringers.

The World Needs Intellectual Property Rights

In the excitement about the potential free flow of information across the Internet, much has been said and written about the obsolescence of copyright as we know it(1) and about the savings in research time that could be achieved by testing ideas in an online forum before investment of resources in research(2). Proponents of change maintain that the potential benefits of free information exchange and the difficulty of enforcing intellectual property rights in the electronic age mandate the replacement of outdated intellectual property laws with new forms of intellectual property. Barlow goes so far as to state that the difficulty of enforcing existing copyright and patent laws imperils what he calls the ultimate source of intellectual property--the free exchange of ideas.

Barlow has it wrong. The source of intellectual property is the right to control ideas developed through one's own labor. Copyright provides a means for sharing the expression of ideas without giving up ownership of the form the author has labored to give to the ideas. Jurassic Park is copyrightable; the idea of a dinosaur park is not.

Patents provide a forum for free exchange of ideas while giving the patentee the opportunity to profit from the use or sale of embodiments of the ideas claimed in the patent without competition during the term of the patent.

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