The Unseen "Other "of Intellectual Property Law


Intellectual Property Is Not Property: Debunking the Myths of IP Law

TyAnna K. Herrington

Misperceptions and inaccuracies regarding intellectual property law are both extreme and ubiquitous in this age of digital communication, when ease of access, copying, and dissemination of copyrighted materials has created a backlash of fear against public access to information. This fear has, unfortunately, lead to general inattention to the policy goals behind the constitutional provision that forms the basis for our current U.S. intellectual property law. But ignorance can lead to acceptance of common inaccuracies regarding intellectual property law. Contrary to some common misreadings of the current law, among other statements, the following are actually true:

  • Current law does apply to digital communication.
  • The public is granted both constitutional and explicit statutory rights to use copyrighted intellectual property, despite common blanket claims from owners that it is illegal to do so.
  • U.S. intellectual property law was developed from British law, which was created to protect against censorship, not from law granting property rights to authors and creators.
  • Copying and/or disseminating an expression of an idea can violate copyright law, but copying and/or disseminating an idea does not.
  • Why Fair Use Is Essential to Free Speech   The Potential Loss of Our Public Domain 

    Recontextualized Art: The Expressive Embodiment of Fair Use 


    Intellectual Property Foundations

    The following material provides an overview of the basic tenets that drive intellectual property law. I focus, in particular, on copyright law because most of the work produced for educational and personal use is governed by this area of the law.

    The intellectual property provision of the U.S. Constitution provides authors and creators with a limited right to control what happens to the works they create, but does not provide them a property right in the work itself. In fact, the purpose behind the constitutional provision is to promote the creation of societal knowledge.

    Intellectual Property Provision of the Constitution

    The Congress shall have the power . . . to Promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. (U. S. Const., art. 1, 8, cl. 8.)
    The Constitution provides creators with limited exclusive rights; the limitation is included to establish the existence of a public domain in information. Under current law, presently under attack in the Senate, copyrighted material reverts to the public domain 50 years after the death of the creator, which ensures that the public has access to created knowledge as a basis upon which to build new knowledge. This process, in turn, ensures the continued development and progress of societal knowledge.

    Further, the ordering of the clauses above makes the primacy of knowledge creation clear. The Constitution promotes the advancement of knowledge by providing authors with incentive to create.

    In addition, our statutory law in the 1976 Copyright Act, which is based on the constitutional provision above, protects the expression of ideas rather than the ideas themselves, further indication of the intent to ensure that information is accessible to members of society for the purpose of advancing knowledge.

    (See L. Ray Patterson and Stanley Lindberg's, The Nature of Copyright for a more detailed and excellent interpretation of the language of the Copyright Act. )


    Fair Use

    107. . . . The fair use of a copyrighted work . . . for purposes such as criticism, comment, news reporting, teaching . . . scholarship, or research, is not an infringement of copyright. . . .
    Full text of the Fair Use Section of the Copyright Statute

    An additional assurance of the public's right to access copyrighted information is embodied in the fair use provision of the 1976 Copyright Statute, currently in force. Fair use not only supports the constitutional goal of advancing knowledge creation, but also ties the policy goals of our intellectual property law to those of the first amendment. Ironically, although fair use may be unfamiliar to many, it may also be our greatest buttress for educational and individual access to the information that contributes to the substance of our society and our nation. Fair use is essential to the operation of the first amendment.


    Fair Use Access Areas

    Fair use is the most important aspect of copyright law for education, individual self-development, and free expression. This statutory exception to copyright supports the principle that the public should have access to knowledge in order to create new knowledge; it generally allows access to otherwise restricted expressions for the following purposes:


  • quotation
  • critical comment
  • educational purposes
  • parody
  • news reporting

    Current Treatment of Intellectual Property Issues

    Generally, intellectual property conflicts treated in the judicial system today are economic in nature, and the courts rightly attempt to resolve conflicts between individuals. The constitutional policy that supports public access to information is seldom considered in case law.

    Policy is properly considered in legislative proceedings; however, most legislators are lawyers who have been trained to adjudicate cases between individuals rather than to treat issues of policy and often are not even cognizant of the policy issues that drive the intellectual property law. They, instead, tend to educate themselves regarding the seemingly more exigent economic issues at hand. The result is that the public's interest in access to information is underrepresented.

    Educators and public interest groups, such as the Conference of College Composition and Communication's Intellectual Property Committee and Caucus, the Electronic Frontier Foundation, and the Digital Future Coalition have taken on the heaviest responsibility for bringing policy issues to legislators' attention and for fighting to protect public access to information. Unfortunately, most educators and members of public interest organizations have no legal training and can encounter difficulty in treating the often very complicated, entangled legal issues inherent in intellectual property law. In addition, the time and money required to defend public access rights in intellectual property most often transcend that allowed by university employers and public-supported, non-profit public interest organizations; thus, as a result of fear of potential litigation, many protected uses of intellectual products are lost to the very individuals whose use is explicitly supported by the intellectual property law.

    Fear of loss of easily transferable digital material often leads copyright owners to disregard the policy issues behind the intellectual property law. The developing trend among corporate copyright owners such as Microsoft and Disney is to treat digital intellectual products as inaccessible, which effectively denies our explicit rights of access provided by fair use. Acceptance of the concept that digital products (and the ideas within them), because of their different physical character, are inaccessible could inhibit our ability to teach in electronic forums, to generate critical comment about information gathered from the World Wide Web, and to report news if it comes from a digital source. We must educate regarding the importance of policy in our treatment of intellectual property law in order to fight the trend to inhibit public access to explicitly accessible information. We must support public access to information, even when that information is digital.

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