Get smart! About intellectual property.

• Author: Andolsen, Alan A.

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Over the past 50 years, there has been a meteoric rise in claims to intellectual property around the globe. In fact, intellectual property has in many ways become the foundation of some economies. Since the existence of and rights surrounding intellectual property are realized only through complete and exacting documentation, records and information managers must assume important and expanded responsibilities in the management and protection of intellectual property. This article focuses on the principal types of intellectual property: patents, trademarks, copyrights, publicity rights, and trade secrets. In addition to a discussion of the nature and structure of each of these types of intellectual property, important international issues, responsibilities, and tasks for the records and information management (RIM) professional will be addressed.

Intellectual Property

The ownership of the expression of ideas, which is at the core of the concept of intellectual property, came late in the development of Western civilization. Most Western philosophers, including Jeremy Bentham and Thomas Hobbes, focused on the ownership of physical property in their discussions of utilitarianism and politics. Until the 17th century, there were no legal protections even for inventions that had a physical component (e.g., textile loom, typewriter, sewing machine, etc.); and it was not until the mid-19th century that these protections were extended to items without a physical component (e.g., commercial processes, medical procedures).

As the legal structure surrounding intellectual property developed, each nation determined the granting of specific types of monopoly to creators or owners. As the global economy developed, harmonization of the various approaches to intellectual property became necessary. Out of the Uruguay Round of the General Agreement on Tariffs and Trade (GATT) negotiations in 1994 emerged the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), which lays out a set of minimum standards for all the members of the World Trade Organization (WTO) to adopt. The TRIPS agreement is only the beginning. Many practical and concrete outcomes from TRIPS still need to be resolved (e.g., the availability of patented AIDS drugs in developing countries). Efforts to continue the harmonization of intellectual property law continues today through the World Intellectual Property Organization (WIPO), the current successor to the United International Bureaux for the Protection of Intellectual Property founded in 1893.

For the RIM professional, the key element is the recognition that intellectual property is an important asset, not just a collection of information artifacts. The monopoly granted by government to the inventor or owner of a specific piece of intellectual property permits the creation of substantial, protected income (whether the owner/inventor is an independent person, part of a commercial enterprise, an educational entity, or a not-for-profit). Because of the inherent value of the documentation that permits the granting of the monopoly, RIM professionals must view it as a vital record and take a value-based approach to the collection, organization, and preservation of the information resources.

In particular, the approach to the maintenance of intellectual property documentation requires, above all, defined structure and clarity. During the creation and application phases of the process granting an intellectual property monopoly, the RIM professional can augment the process by helping staff to identify all the required documentation, creating dear and comprehensive classifications to organize the material, assuring the proper preservation of the documentation (especially those components that are digital), and providing appropriate vital-record protection.

Patents

Patent law protects inventions that are original and not obvious by granting a monopoly to the inventor for a stated period of time (e.g., in United States and the European Union, the grant is for a period of 20 years). Patents were first granted by medieval kings for property or certain economic rights (e.g., the right to create or to sell a specific cloth). The British passed the first patent law, called the Monopoly Act in 1624; the first U.S. patent law was passed in 1790. Until recently, patents were linked to physical products ("inventions") that had a tangible aspect. U.S. law was changed in the 1950s, however, to permit the patenting of processes. However, until 1998, few, if any, claims of patents for processes were filed. Today, in all of the major developed countries, patents can be granted both for physical inventions and for processes...