3.1 - Intellectual achievements

Expressed ideas. Intellectual achievements are about the expression of ideas and thoughts. We make a distinction between an idea as such, on the one hand, and the expression of that idea, on the other hand. Where the expression of an idea or thought is protectable, a mere idea of thought is not. One reason for this distinction is that there is no shortage of ideas as such, but there could be a shortage of what society needs in terms of developed ideas that could be applied and used practically. Another reason for this distinction is that the added value of an idea is relatively limited compared to the added value of a developed idea that can be used and applied in practice.

Limited value of ideas. Leonardo da Vinci and Jules Verne are two examples of the phenomenon that ideas as such generally do not directly create value. Already around 1500 Da Vinci envisioned a helicopter and made sketches thereof. However, it would take 400 years until Igor Sikorski realised a functioning helicopter in 1939. Jules Verne wrote a book in 1864 about a voyage to the middle of the earth, followed one year later by a book about a moon voyage. It took 100 years until the moon landing of Apollo 11 proved that the latter was indeed possible.

Invention - Machlup. Something worth realizing is that the concept of “invention” also has a lingual meaning that is much more encompassing than only patentable inventions, as expressed in the following paragraph: “The word “invention” is used in at least three different fields of knowledge: the useful arts, the fine arts, and the pure sciences. It always means, as the Latin word suggests, to “come upon” or “find” something. In the useful arts it means the finding of solutions to technological problems: in the fine arts the finding of aesthetically interesting possibilities; [...]. In all cases inventing does not mean “coming upon something that has existed” but rather “making something with the mind”. (Machlup, The Production and Distribution of Knowledge in the United States, 1972, p. 162).

Developed thoughts. The intellectual character of objects protected by patents or copyright is demonstrated by the fact that these two IP-rights protect intangible objects because they are the result of brain power and intelligence. With these two IP-rights we effectively protect developed thoughts and ideas. For patent law, that is an invention – an insight that can be applied to solve a problem – in patent law and for a copyright law that is a design idea – the presentation of information. Protected is the intangible, intellectual object (“corpus mysticum”) and not the mere realisation thereof in a particular physical product (“corpus mechanicum”).

Patent law. Patents protect technology. They protect a novel, nonobvious idea that results in methods or products that offers certain advantages over what is already known: the state of the art. The protection comprises the commercial application of this inventive idea, meaning that if I have a patent on “the wheel”, I can act against any use of that invention irrespective of whether it is in the form of a wooden wheel, a metal wheel with spokes or a wheel with air tires. This also encompasses any embodiments that the inventor was or could not have been aware of at the time that he or she made the invention or applied for the patent.

Copyright. Copyright protects culture in the form “art” with a lower case “a”. Contrary to patent law, copyright does not protect a certain idea as such, but only the creative expression thereof; a developed design idea. That expression of an idea can, as the idea itself, be exploited in many different shapes and forms. A story can be told, published as a book, translated or made into a film. The proprietor of the copyright in that story can prohibit all these embodiments of the original story, if the original elements of its “corpus mysticum” are still recognizable in these embodiments.

Various embodiments. An intellectual achievement – a thought – can be embodied in a many different shapes and forms. It is a characteristic of the protection of intellectual objects by patent law or copyright that the protection encompasses all these different shapes and forms in which the protected intellectual object can be exploited. The creative formative thought expressed in the Harry Potter books is protected in all its appearances, such as the original English-language book format, adaptations thereof in the form of translations, films or stage performances. The inventive idea of the wheel – when patented – would have been protected in subsequent embodiments ranging from a transversely sawed log to a state-of-the-art wheel as used in a time trial bicycle for a professional cyclist. The question whether the author of Harry Potter or the inventor of the wheel did or could envision such embodiments is also irrelevant for the answer to the question whether or not such embodiments fall within the scope of the copyright or patent concerned.

Stackability of various rights. Characteristic of intellectual achievements is also their “stackability” with other inventions or other works of authorship. Each of the different adaptations or formats of expression of a work of authorship or an invention can also be the subject to a copyright or patent. The various intermediate appearances of a wheel, ranging from a cross-sawed tree to a high-tech time-trial bicycle wheel, could each be patented and the result thereof is that the final product in the form of the time-trial wheel may be covered by dozens of patents. The various adaptations that a book may go through when making a screen adaptation generally results in a variety of copyrights for each step, such as script writing, set design, directing, filming and editing. This stackability of multiple different copyrights or patents in one product is characteristic of these intellectual objects and their intellectual property rights and usually absent in economic achievements and the IP-rights that protect those intangible objects.