Date: May 4, 2018
Copyright and Patent Issues Facing the USA
Basically, copyright and patent protection is a way to give the little person a fair chance to make their mark in business, art, and society. How do these protections work? When filed with the proper office, you get a piece of paper that says your invention (whether it be words on the page or a description of a mechanical device or a design) is indeed yours and the clock starts ticking. What clock? Again, very basically, you have a limited time to profit on your sole control of your invention and anyone who "knocks you off" (copies you) is wrong and can be stopped, either in a court of law or by international police action (such as customs people seizing fake Luis Vuitton imported handbags).
But the problem comes with "fair use" and that strays into the arena of what may be technically of legally wrong but perhaps not morally wrong. Is it wrong to quote an author's words to support an argument? Is so, or if not, how many words would be considered inappropriately unfair or breaking copyright? If I write here, "The Old Man and the Sea," yes, that is copyright Hemingway, but is it fair to use this example, even here? Is it too long a selection, or is it short enough not to be "stealing?"
Want another example? The standard pencil. A man wanted to stick an eraser on the top and applied for a mechanical patent. The pencil was already a known device, so was the eraser. Sticking them together made a "new" product. Patent applications were denied. The eraser topped pencil never had any protection, the inventor made nothing.
Decades ago in the '80s, I visited the Polaroid offices in Boston. Dr. Land showed me around. We passed a room, door open, where 20+ people were sitting at desks typing away. He waved a hand and explained, "They're writing every person who says "polaroids" in the papers because our trademark is Polaroid and if someone misuses it by making it publically plural, we might lose our protection." All across America patent attorneys mention such familiar cases, like Hoover which became, in the UK, a verb and the name itself is no longer protected (the company design logo is however). So where's the common sense in all this and why do people need protection?
Well, Coke doesn't. They have no written down formula for Coke. You see, if you write it down it is covered by international copyright. But if you write it down you start that clock ticking... the time is always limited (although corporations always seek to extend that time frame). By not writing it down or applying for patent or copyright protection, Coke simply has a secret.
In law, there is a term called malum prohibita meaning things that are illegal but not morally wrong. Polaroids would be one of those, as would, for example, speeding and even quoting an author's words. One step up from that is malum per se (bad in and of itself) like robbery or piracy. Part of the problem in dealing with industrial espionage is that often the malum lies between those two. For example, did you know that every year Ford buys every new Chevy model and takes it all apart to see what their competition is doing and, perhaps, sees what they can do better? If that bad? Immoral perhaps, but illegal?
In China, US companies are facing a serious issue. For a start, Chinese students first went to Japan to learn how Japan went from being the country of "cheap little knock-offs" in the '50s and early '60s to the technological marvel it is today. Then China set to work on a 25 year plan to revolutionize their industry and build for technological superiority within 50 years. They are now 25 years into their program, with a new 25-year impetus announced this past February – the plan being to be world leaders in "robotics, engineering, computer sciences, space exploration, and industry." To get there from here they need to build on and use copyright (computer coding is all copyright material) and patent information currently available. Well, the USA sees this as stealing, in that gray area between outright illegal theft and morally wrong misappropriation. The Chinese see it as an artist does, building on what went before (the Japanese model by the way). And before we point too many fingers, it is worth remembering that Microsoft's code was originally written and developed by IBM (who were hired by the government and DARPA). Deep within the millions of characters of your computer's operating system are still three little letters: "IBM." And it is there - doesn't matter if you are an Apple or MS user either.
Is protection necessary? You bet. Is it always a clear-cut case? Nope. Piracy is a serious issue that needs to be handled carefully and expeditiously. And the benefit of identifying piracy is that the malum is clear and obvious. What is far harder to identify is what is morally wrong but not illegal - the "borrowing" or using portions of someone's invention. The Chinese know that they can build a whole economy out of borrowing.