Text II. Intellectual Property Historical Roots of the Problem

Intellectual property is neither a new nor a static concept. The grant by a state of some form of exclusive rights in their inventions to inventors originated in the early part of the 15^th century in Venice and spread rapidly during the 16^th century to Germany, France, the Netherlands, and England. It was early recognized that in a free market economy, patent protection provides the necessary incentive to invent, to disclose the invention, to invest in the commercial development of the invention, and to motivate others to add to the store of human knowledge by designing around the patented invention. The Statute of Queen Anne, enacted in 1709 in England, was the first true copyright statute and the first recognition of the source of the copyright interest in the creative act of authors the benefit of economic rewards, while the public receives the benefit of literature, music, and other creative works that might not otherwise be created or disseminated.

Trademarks are thought to date back at least 3,500 years to potters’ marks used to identify the source of fired clay pots. Jurisprudence and statutes for the protection of trademarks appear to date back “only” 350 years, to early 17^th century England. Trademarks serve to indicate the origin or source of a particular product or service and, related to that, distinguish the goods or services of an enterprise from those of other enterprises. Trademarks also serve an important consumer-protection function in establishing the link between a good or service and its source. The consumer knows, therefore, whom to turn to if he or she receives poor goods or services. Trade secret protection is an integral part of honest business practices – if information is not generally known, has commercial value, and the owner takes reasonable steps to protect it, it should be protected. Trade secrets are often the oil that lubricates a technology transfer agreement. Without it, the parties to an agreement find it difficult or impossible to freely exchange the information vital to making the agreement work.

Laws for the protection of intellectual property are not static but change in concert with changes in technology and society. In Book 2, chapter III of The Wealth of Nations, Adam Smith stated that the labor of persons we now call “performers” is “like that of menial servants, unproductive of any value, and does not fix or realize itself any permanent subject, or vendible commodity, which endures after that labor is past, and for which an equal quantity of labour could afterwards be procured.” He concluded that, “like the declamation of the actor, the harangue of the orator, or the tune of the musician, the work of all of them perished in the very instant of its production.” In 1776 it was not possible, of course, to fix a performance in a tangible medium. Today, a multimillion dollar worldwide industry has been built around the fixation of performances in videos, cassette tapes, and compact disks.

It is these changes in technology that cause the greatest challenges and greatest opportunities to the intellectual property system. It is a large part of the reason that the norms in the field of intellectual property developed so rapidly in the 20^th century – the century that saw the creation of photocopiers, radio, television, videocassette recorders, cable television, satellites, computers, and the Internet.

Vocabulary notes

incentive – стимул, побуждение

to disseminate – распространять

to enact – вводить в действие

a potter – гончар

reasonable – разумный

vital  – жизненно необходимый

to lubricate – подмазать, угощать

menial [' mi: njə l] – лакейный

vendible – годный для продажи

commodity – товар широкого потребления

harangue [hə'ræŋ] – публичная речь

to endure – терпеть, выносить

tangible – материальный

medium – средство

to procure [ prə' kjuə] – обеспечивать

 

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