New approaches to intellectual property

AuthorJanelle Orsi
ProfessionIs the Director of the national nonprofit Sustainable Economies Law Center, and she is a 'sharing lawyer' in private law practice in Oakland, CA
Pages535-553
535
CHAPTER TEN
NEW APPROACHES
TO INTELLECTUAL
PROPERTY
By D. Inder Comar, Esq.
A philosophy of sharing has made tremendous str ides in all areas of law,
including intellectual property. Due to its intangible nature, intellectual
property is more easily shared than ot her types of propert y. Yet,
traditional copyright and patent protection frameworks have offered
very little on the spectrum bet ween sharing with everyone and sharing
with no one.
Today, new licensing fra meworks increasingly abound for creative
people to share on their own terms, by controlling the ways ideas
and works are used and shared. This dynamic framework for sharing
intellectual property is broadening everyones access to information,
stimulating creativity and collaboration, spurring rapid innovation as
people build upon the creations of others, and allowing important ideas
to simultaneously benefit the public good and reward in novators.
* D. Inder Comar is an att orney in San Francisco who helps comp anies and individua ls
promote change— technologica l, social, a nd legal change. H is practice sp ans intellec-
tual propert y, I nter net, employment and civil and huma n rights concerns. Mr. Comar
has worked on projects w ith start-ups, nonprofits, Fort une 100 companies, and govern-
ments related to creative approac hes to intellectual propert y protection, licensing, and
management.
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PART 1: INTELLECTUAL PROPERT Y AND SHARING
What Is Intellectual Property?
Intellectual property is a special form of property that is produced by
the human mind. Ideas, creative works, business secrets, and bra nds
have no physical reality, but they nonetheless possess value even in an
intangible form.
Four Major Forms of Intellectual Property
Intellectual propert y is created either by federal statute or recognized
by state law. In the United States, four forms of intellectual propert y are
generally recognized:
• A patent is a federal government–issued monopoly on an
invention, giving t he inventor the exclusive right to use and
monetize the invention for a certai n amount of time (20 years in
the case of utilit y and plant patents).
• A copyright is a federal government–issued protection over any
creative expression fi xed in tangible form, generally giving the
author the exclusive right to display, distribute, reproduce, and
create derivatives of that expressive work for his/ her entire life,
plus another 70 years.
• A trademark is a government-issued acknowledgment that a
person or company has the exclusive right to use a specif ic mark—
such as a name or logo—to distinguish goods or ser vices in the
marketplace. Federal trademark regist ration protects a mark in the
national market.
• A nd finally, a trade secret is any business secret that gives a
company an edge in the marketplace.
There are other forms of intellectual property (trade dress, for
example, protects the way a product is pack aged), but patent s, copyrights,
trademarks and t rade secrets are ones that are well recog nized across
numerous j urisdictions.
Why Does Intellectual Property Exist?
Whereas the reasons for government recognition and protection of
intellectual propert y in the United States could occupy several large
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