“We can be aware there are such things as patents, trademarks and copyrights and perhaps have a sense of what they are, but not really understand them or how they achieve their intended purpose. And that is the case with the general public. Though intellectual property awareness is increasing, IP understanding is simply not on the same trajectory.”
Intellectual property (IP) promotes innovation. The limited right to exclude others from copying patented inventions, copyrighted original works of authorship, and trademarked brands and logos encourages innovators to invest their time and money.
IP appeals to our sense of fairness by discouraging or preventing counterfeiting, passing off, and other harmful takings of the fruits of investments in research, development, creativity and innovation, and is leveraged by entrepreneurs seeking start-up capital. Unfortunately, the general public lacks a true understanding of how IP fuels our innovation economy.
The importance of IP has increased in recent decades, as evidenced by the growth in the portion of company value that stems from intangibles and the use of IP as an important tool in global competition. Given the growth in importance of IP, it is not surprising that awareness of IP has also grown. In the past, one had to resort to law books and legal journals to learn and keep up with recent developments about IP.
Today, IP practitioners are bombarded with so many free newsletters about IP that we simply cannot read them all—it is no longer a function of getting access to information, but which sources of information are the best use of one’s time. The same is true for the general public, which is increasingly exposed to references about IP in social and news media, advertising, and other public channels. Unfortunately, those references to IP are not always accurate and often require explanation.
Awareness is Not Understanding
Awareness and understanding of IP are not the same thing. We can be aware of something and not really understand it. We can be aware there are such things as patents, trademarks and copyrights and perhaps have a sense of what they are, but not really understand them or how they achieve their intended purpose. We can know of them, but not be literate in them—and that is the case with the general public. Though IP awareness is increasing, IP understanding is simply not on the same trajectory. IP understanding might be increasing but it is not keeping up, and a significant gap remains between IP awareness and genuine IP literacy.
Why does the general public lack an understanding of IP? First, IP is complicated. Short, catchy sound bites may capture attention, but fall short on vital information. Articles frequently refer to different types of IP confusingly or even (wrongly) interchangeably. Authors also get confused about various aspects of patents—for example, failing to appreciate the difference between a patent and a patent application, conflating the title of a patent with the scope of patent claims, confusing patent issue dates with patent application filing and publication dates, etc. Although some countries (e.g. China) actively school students about IP, other countries (including the U.S.) are less focused on such education. So, often, the general public does not appreciate what IP is, how it is acquired, and how it achieves its intended purpose of promoting innovation.
Another hurdle to general public understanding of IP results from the public debate about IP. We lawyers argue vigorously for our preferred positions (and those of our clients) and we may use rhetoric and take extreme positions in order to make our points and posture for negotiations, including statements that may unjustifiably tear at the fabric of the IP system, rather than questioning the value of a particular innovation.
This can actually mislead the general public about the benefits of IP. Some members of the public nihilistically advocate for the elimination of IP altogether, without any discussion of how the IP system might be improved. It is critical that the public appreciate why IP is vital and understand the delicate balance among IP system constituents.
Public confidence in our IP system affects everyone. Misunderstanding enables a lack of respect for IP. In keeping the IP system vibrant, we must not lose sight of certain fundamental principles. If we want our competitors to respect our IP, we need to respect theirs. If we want other nations and their citizens to respect our IP, we need to set an example by respecting each other’s IP in this country. If we have concerns about the IP system, we should address them specifically and focus on improvement without condemning the entire IP infrastructure.
There is too much at stake to short-change IP understanding. We all want to optimize the promotion of innovation, which fuels economic growth and competitiveness. Those of us who are familiar with IP matters are obliged to help others overcome confusion and miscommunication and to act to fairly expand an appreciation of IP and its value. Our innovation economy and national security, as well as our quality of life, hang in the balance.
Manny Schecter is a member of the boards of directors of the Center for Intellectual Property Understanding, the Intellectual Property Owners Association (IPO), the IPO Education Foundation (where he serves as president), and Allied Security Trust. This article is based on his keynote presentation delivered at the IP Awareness Summit, held by the Center for Intellectual Property Understanding at the Columbia University School of Journalism.
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