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According to the World Intellectual Property Organization (WIPO):
Intellectual property (IP) refers to creations of the mind: inventions; literary and artistic works; and symbols, names and images used in commerce. IP is protected in law by, for example, patents, copyright and trademarks, which enable people to earn recognition or financial benefit from what they invent or create. By striking the right balance between the interests of innovators and the wider public interest, the IP system aims to foster an environment in which creativity and innovation can flourish.
It’s critical to understand the idea of intellectual property as this balance of interests. Intellectual “property” does not work the same way as most other types of property. Our understanding of how personal, physical property can be stolen (or pirated) does not map directly to the circumstances in which intellectual property can be leveraged or re-used.
Consider this statement from U.S. Supreme Court Justice Brandeis in 1918:
[T]he fact that a product of the mind has cost its producer money and labor, and has a value for which others are willing to pay, is not sufficient to ensure to it this legal attribute of property. The general rule of law is that the noblest of human productions — knowledge, truths ascertained, conceptions, and ideas — became, after voluntary communication to others, free as the air to common use.
Over time and across cultures, theories of intellectual property and related laws have varied widely. The original U.S. copyright law passed in 1790 covered only “maps, charts, and books” for 14 years with the potential for an additional 14 years. U.S. copyright law now covers literary, musical, choreographic, architectural works, and more, and automatically lasts 70 years after the author’s death.
Continental Europe recognizes some rights not found in the U.S. system. “Moral rights” or “personality rights” give authors control over what can be done with their original works, even by someone who purchases it, and limits criticism of the work that reflects negatively on the author.
As stated in the WIPO definition above, the IP system is an attempt to strike a balance between two conflicting values: 1) encouraging and rewarding innovation and 2) public access to a public good. The best method for achieving that balance is not obvious and not consistent among governing groups or cultures. Sweeping assumptions about the ethics of how people “should” be treating others’ intellectual property gloss over the many tensions within the IP system.
Below, we explore some of these tensions and decision points.
In the U.S., copyright protections need to be consistent with First Amendment free speech protections.
The importance of acknowledging or rewarding the creator of a work or idea varies.
The prevailing method for rewarding and incentivizing creators leads to access and use of intellectual property being bought and sold.
These tensions, and the many possible ways of addressing them, mean that all of the laws, rules, and norms governing intellectual property are not obvious or intuitive.
In 1979, a Canadian artist was hired to create a showpiece sculpture for a shopping center in Toronto. The sculpture was hung from the ceiling and depicted many large geese flying above. The sculpture was purchased by the group managing the shopping center. A plaque recognizing the artist was installed. The sculpture gained a reputation as an important work from this artist and was considered a focal point of the shopping center.
Three years later, the shopping center decorated the sculpture for the Christmas shopping season with large red ribbons around the necks of the geese and advertised it as a central part of their Christmas display. The artist was unhappy with how the addition of the ribbons impacted the sculpture and complained to the shopping center asking them to take the decorations down. The shopping center managers responded that they found the decorations useful for their marketing efforts and as the owners and commissioners of the sculpture, they had the right to use the sculpture in that way.
If the artist sued the shopping center to get them to stop decorating the sculpture, do you think he would win?
Do you think it’s ethically wrong for the shopping center to decorate the sculpture this way even if it’s legal?
Answer: As with many intellectual property questions, there are no clear right or wrong answers.
In fact, the artist sued and claimed that the decorated work was a “distortion, mutilation or other modification” of his work that negatively impacted his reputation. The shopping center argued that the artist knew his work was being used for their commercial purposes when they hired him and submitted the opinion of another artist that did not think the decorations were a problem and did not negatively influence his opinion of the artist.
Under Canadian law, the court ruled that the decorations did infringe the artist’s moral rights because at least some other artists thought the decorations made a negative impact on the sculpture and because the artist’s opinion of how it impacts his reputation was an important factor.
Many countries don’t recognize a strong moral right for creators and the artist would not have been able to win his case. Some people think the artist should be allowed to restrict how his sculpture is used. Others think he gave up those rights when he sold the sculpture or that the rights of others to add creative elements to the original as long as they indicate what they’ve done are as important.
In 2019, Sarah Marantz Lindenberg introduced the NiteCap, a silk hair wrap intended to be worn to bed to prevent acne breakouts and to maintain hair quality. She sold her product for $75 in the U.S., and Fashion magazine published a profile of Marantz Lindenberg. Social media commenters were quick to criticize Marantz Lindenberg, who is white, for failing to acknowledge the central role of black women in creating, marketing, and widely using similar silk bonnets and nightcaps throughout history. They also highlighted the similar, less expensive, silk bonnets already on the market, many of which were the products of black-owned businesses. Marantz Lindenberg apologized and issued a statement that she plans to tie her product to the broader historical context of hair wraps among black women. 
Who actually “owns” the intellectual property rights in this situation?
As well as raising issues of cultural appropriation and racial inequality in the marketplace, this situation highlights intellectual property as a cultural and moral phenomenon. While we often think about intellectual property in terms of the law and individual rights holders, there are instances in which ownership is more diffuse. Some individuals and companies in the business of lined sleeping caps have protected aspects of their intellectual property [for example, U.S. patent 7895672 protects a specific type of bonnet with an elastic band, and online entrepreneur Grace Eleyae holds registered trademarks for her company’s name and her satin-lined caps, “Slaps (Satin Lined Caps)”, no single party claims legal ownership to the idea of silk-lined bonnets. Yet, as evidenced by the online response to the NiteCap, many feel that black women have a strong cultural ownership of the idea. A group may be seen as owning or originating certain ideas, and failure to recognize this may lead to strong ethical opposition and informal cultural consequences.
As we discuss the various legal and localized policy approaches to intellectual property in the following lessons, bear in mind that these are imperfect and evolving attempts at addressing larger cultural issues so they are not always consistent or logical.
 Asmelash, Leah, R., Brian. (2019, July 24). “Why everyone is mad about this $75 nightcap.” Retrieved September 6, 2019, from CNN Style website https://www.cnn.com/style/article/nitecap-98-backlash-trnd/index.html.