[R-G] [BillTottenWeblog] Did You Say "Intellectual Property"?

[Bill Totten]

It's a Seductive Mirage

by Richard M Stallman


It has become fashionable to toss copyright, patents, and trademarks -
three separate and different entities involving three separate and
different sets of laws - into one pot and call it "intellectual
property". The distorting and confusing term did not arise by accident.
Companies that gain from the confusion promoted it. The clearest way out
of the confusion is to reject the term entirely.

According to Professor Mark Lemley, now of the Stanford Law School, the
widespread use of the term "intellectual property" is a fashion that
followed the 1967 founding of the World "Intellectual Property"
Organization, and only became really common in recent years. (WIPO is
formally a UN organization, but in fact represents the interests of the
holders of copyrights, patents, and trademarks.)

The term carries a bias that is not hard to see: it suggests thinking
about copyright, patents and trademarks by analogy with property rights
for physical objects. (This analogy is at odds with the legal
philosophies of copyright law, of patent law, and of trademark law, but
only specialists know that.) These laws are in fact not much like
physical property law, but use of this term leads legislators to change
them to be more so. Since that is the change desired by the companies
that exercise copyright, patent and trademark powers, the bias of
"intellectual property" suits them.

The bias is enough reason to reject the term, and people have often
asked me to propose some other name for the overall category - or have
proposed their own alternatives (often humorous). Suggestions include
IMPs, for Imposed Monopoly Privileges, and GOLEMs, for
Government-Originated Legally Enforced Monopolies. Some speak of
"exclusive rights regimes", but referring to restrictions as "rights" is
doublethink too.

Some of these alternative names would be an improvement, but it is a
mistake to replace "intellectual property" with any other term. A
different name will not address the term's deeper problem:
overgeneralization. There is no such unified thing as "intellectual
property" - it is a mirage. The only reason people think it makes sense
as a coherent category is that widespread use of the term gives that
impression.

The term "intellectual property" is at best a catch-all to lump together
disparate laws. Non-lawyers who hear one term applied to these various
laws tend to assume they are based on a common principle, and function
similarly.

Nothing could be further from the case. These laws originated
separately, evolved differently, cover different activities, have
different rules, and raise different public policy issues.

Copyright law was designed to promote authorship and art, and covers the
details of expression of a work. Patent law was intended to promote the
publication of useful ideas, at the price of giving the one who
publishes an idea a temporary monopoly over it - a price that may be
worth paying in some fields and not in others.

Trademark law, by contrast, was not intended to promote any particular
way of acting, but simply to enable buyers to know what they are buying.
Legislators under the influence of "intellectual property", however,
have turned it into a scheme that provides incentives for advertising.

Since these laws developed independently, they are different in every
detail, as well as in their basic purposes and methods. Thus, if you
learn some fact about copyright law, you'd be wise to assume that patent
law is different. You'll rarely go wrong!

People often say "intellectual property" when they really mean some
larger or smaller category. For instance, rich countries often impose
unjust laws on poor countries to squeeze money out of them. Some of
these laws are "intellectual property" laws, and others are not;
nonetheless, critics of the practice often grab for that label because
it has become familiar to them. By using it, they misrepresent the
nature of the issue. It would be better to use an accurate term, such as
"legislative colonization", that gets to the heart of the matter.

Laymen are not alone in being confused by this term. Even law professors
who teach these laws are lured by, and distracted by, the seductiveness
of the term "intellectual property", and make general statements that
conflict with facts they know. For example, one professor wrote in 2006:

Unlike their descendants who now work the floor at WIPO, the framers of
the US constitution had a principled, pro-competitive attitude to
intellectual property. They knew rights might be necessary, but ... they
tied congress's hands, restricting its power in multiple ways.

That statement refers to the article 1 section 8, clause 8 in the US
Constitution, which authorizes copyright law and patent law. That
clause, though, has nothing to do with trademark law. The term
"intellectual property" led that professor into a false generalization.

The term "intellectual property" also leads to simplistic thinking. It
leads people to focus on the meager commonality in form that these
disparate laws have - that they create artificial privileges for certain
parties - and to disregard the details which form their substance: the
specific restrictions each law places on the public, and the
consequences that result. This simplistic focus on the form encourages
an "economistic" approach to all these issues.

Economics operates here, as it often does, as a vehicle for unexamined
assumptions. These include assumptions about values, such as that amount
of production matters, while freedom and way of life do not, and factual
assumptions which are mostly false, such as that copyrights on music
supports musicians, or that patents on drugs support life-saving research.

Another problem is that, at the broad scale of "intellectual property",
the specific issues raised by the various laws become nearly invisible.
These issues arise from the specifics of each law - precisely what the
term "intellectual property" encourages people to ignore. For instance,
one issue relating to copyright law is whether music sharing should be
allowed. Patent law has nothing to do with this. Patent law raises
issues such as whether poor countries should be allowed to produce
life-saving drugs and sell them cheaply to save lives. Copyright law has
nothing to do with such matters.

Neither of these issues is solely economic in nature, and their
noneconomic aspects are very different; using the shallow economic
overgeneralization as the basis for considering them means ignoring the
differences. Putting the two laws in the "intellectual property" pot
obstructs clear thinking about each one.

Thus, any opinions about "the issue of intellectual property" and any
generalizations about this supposed category are almost surely foolish.
If you think all those laws are one issue, you will tend to choose your
opinions from a selection of sweeping overgeneralizations, none of which
is any good.

If you want to think clearly about the issues raised by patents, or
copyrights, or trademarks, the first step is to forget the idea of
lumping them together, and treat them as separate topics. The second
step is to reject the narrow perspectives and simplistic picture the
term "intellectual property" suggests. Consider each of these issues
separately, in its fullness, and you have a chance of considering them
well.

And when it comes to reforming WIPO, among other things let's call for
changing its name.

http://www.gnu.org/philosophy/not-ipr.xhtml


TO POST A COMMENT, OR TO READ COMMENTS POSTED BY OTHERS, please click
on the word "comment" highlighted at the end of the version of this
essay posted at http://billtotten.blogspot.com/