Gratitude in Harvest Time

In this issue of the HULSEY PC IP MoNITor, we focus on The Intellectual Property of Gratitude in a season of Thanksgiving and shifting into the Advent season. Both intellectual property rights and the expression of gratitude serve as fundamental human endowments enabling successful domestic and international commerce.

In September of 1620, a group of 102 religious separatists (now commonly known as Pilgrims) left England on the Mayflower.  After 66 treacherous days at sea, the ship landed near the tip of Cape Cod, and thirty days later, the Pilgrims traveled across the Massachusetts Bay to what is now known as Plymouth Rock. The Pilgrims remained on the Mayflower the first winter as they were unprepared for the brutal New England winter that awaited them. More than half the Pilgrims lost their lives due to exposure and disease. That spring, the Pilgrims could not have been more thankful for Squanto, a member of the Pawtuxet tribe, who taught them how to cultivate crops, hunt, and survive.

In November of 1621, the Pilgrims had a successful harvest, and to celebrate, they invited their Native American friends for a feast, remembered as the “first Thanksgiving.” Since then many presidents have issued Thanksgiving proclamations and issued days of thanks. In 1863, Abraham Lincoln declared Thanksgiving a national holiday.

The Benefits of Intellectual Property

Not surprisingly, there exist a number of Thanksgiving-related items that have benefited from strong intellectual property protection, including patents and trademarks.

While it is difficult to determine the exact scope and extent of the problem, every indication is that copyright piracy, trademark counterfeiting, and patent infringement have become significant problems in the business community in general, including small businesses. U.S. small businesses are at a particular disadvantage, however, because they may lack the knowledge, expertise or resources necessary to prevent the theft of their ideas and products. In addition, small businesses generally do not have the level of access or the resources, such as specialized legal counsel, that may be available to larger companies.

Why should a property interest exist in an intangible item? In recent years, arguments over intellectual property have often divided proponents – who emphasize the importance of providing incentives for producers of creative works – from skeptics who emphasize the need for free and open access to knowledge.

IP rights make sense as a reward for effort and as a way to encourage “creative professionals” to carve out autonomous careers built on their talent for making high-quality original works. Awarding IP rights to creative people is fair for everyone else in society. IP rights are based on a solid ethical foundation, and – when subject to fair limits – these rights are an indispensable part of a well-functioning society.

These mid-level principles are: (1) efficiency; (2) nonremoval, or preservation of the public domain; (3) proportionality, i.e., grant or reward proportional to effort or contribution; and (4) dignity. Scholars of all stripes, whatever their belief in the ultimate basis of the IP field, can and in many cases already do engage in high level analysis and debate using this principles.

Ownership of creative works in the digital age, and the problem of patents on life-saving drugs in the face of destitute populations who need them. There are advantages of continued adherence to a property regime. Property rights are obsolete and counterproductive in today’s digital age. The privileging significant, high-quality creative work with strong intellectual property protections is warranted, as against nonprofessional and group-created works. At the same time, there should be a simplified system of waiver of rights to facilitate voluntary sharing of works when that is what creative authors want.

I sincerely hope that your business and personal efforts and aspirations succeed in these final winter months 2017. We here at HULSEY PC stand ready to serve our valued clients and friends in fulfilling our mission to be A Gold Standard in IP for a Creative and Inventive Entrepreneurial Marketplace!