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Saturday, February 10, 2018

What is Intellectual Property?

The idea that what someone thinks or produces in the course of communicating with others can be "owned" has evolved over time into a complex web of traditions, laws, privacy claims and a myriad of other beliefs and restrictions.

Intellectual property is an inclusive generic term that has become current in the legal community to designate any work that is protected by statutory laws such as copyright, trademark, patents and any other such regulations or provisions. Every time genealogists look at a record, document, book, or go online to do research, they are becoming involved in intellectual property and all its issues. Disputes about intellectual property rights sometimes end up in court but surprisingly, very few issues arising in the context of genealogical research have been litigated in any of the courts in the United States. Despite this fact, I have found that copyright issues are commonly the subject of questions and concerns by individual genealogists and even commercial entities that are involved in genealogical pursuits.

What is more common than litigation issues are issues arising from record access and control. The statutory limitations form only a small, but important, part of the overall intellectual property issues confronting a historical researcher.

The concept of "intellectual property" has such a broad application that almost anything containing information or communication of any kind can be and is often included. The entire topic has become so complicated that there are now entire law firms that "specialize" in intellectual property law.

The main issues concerning claims to intellectual property ownership are fuzzy in the extreme. What is and what is not "intellectual property" is the basis for constant commentary by the US courts. What is clear is that in general intellectual property rights such as a patent or copyright protects an item, it will be subject to copying. See TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U. S. 23, 29 (2001). Also, see the following:
The rights of a patentee or copyright holder are part of a "carefully crafted bargain," Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U. S. 141, 150-151 (1989), under which, once the patent or copyright 34*34 monopoly has expired, the public may use the invention or work at will and without attribution.
Many of the issues surrounding intellectual property claims have gone to the U.S. Supreme Court. One interesting case is that of Dastar Corp. v. Twentieth Century Fox Film Corp., 539 US 23 - Supreme Court 2003. The facts, in that case, are complicated and Supreme Court's opinion is rather long but if you want an idea of the complexity of the issues, you can try reading the decision of the court.

For genealogists, this issue comes up in the context of copying substantial portions of an original work. I have mentioned this resource a number of times, but it is so valuable that it needs to be part of any genealogist's reference material. It is the Cornell University Library's "Copyright Term and the Public Domain in the United States." This reference is as short and concise as is possible and provides basic guidelines for copyright issues. The main reference point is that before 1923 in the United States there is no protection for works registered or first published in the United States. But remember that every country has its own laws.

Here are a few of the many books on the subject.

Bainbridge, David I. Intellectual Property. Harlow, England; New York: Pearson Education, 2012.
College of Law (England and Wales). Intellectual Property: An Introduction. Guildford: College of Law, 1993.
Engdahl, Sylvia. Intellectual Property Rights. Detroit, MI: Greenhaven Press, 2010.
Fitzgerald, Anne, and Dimitrios G Eliades. Introduction to Intellectual Property, 2015.
Golvan, Colin. An Introduction to Intellectual Property Law. Sydney: Federation Press in association with Golvan Arts, 1992.
Gregory, Donald A, Charles W Saber, and Jon D Grossman. Introduction to Intellectual Property Law. Washington, D.C.: Bureau of National Affairs, 1994.
Johnson, Stephen, and Economist Newspaper Limited. Guide to Intellectual Property: What It Is, How to Protect It, How to Exploit It, 2015.
Spiers, Duncan. Intellectual Property Law. Dundee: Dundee University Press, 2009.
Vaidhyanathan, Siva. Intellectual Property: A Very Short Introduction, 2017.
Wherry, Timothy Lee. “The Librarian’s Guide to Intellectual Property in the Digital Age: Copyrights, Patents, and Trademarks.” American Library Association, 2002.
World Intellectual Property Organization. Introduction to Intellectual Property: Theory and Practice, 2017.

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