[Upd-discuss] Did You Say "Intellectual Property"? It's a Seductive Mirage by Richard M. Stallman

[Zapopan Martin Muela-Meza]

http://www.gnu.org/philosophy/not-ipr.xhtml
Did You Say "Intellectual Property"? It's a
Seductive Mirage
by Richard M. Stallman

[image of the Head of a GNU]

It has become fashionable to describe copyright,
patents, and trademarks as "intellectual
property". This fashion did not arise by
accident--the term systematically distorts and
confuses these issues, and its use was and is
promoted by those who gain from this confusion.
Anyone wishing to think clearly about any of
these laws would do well to reject the term.

One effect of the term is 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, these companies have worked to
make the term fashionable.

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

Those who would prefer to judge these issues on
their merits should reject a biased term for
them. Many have asked me to propose some other
name for the category--or proposed alternatives
themselves. Suggestions include IMPs, for Imposed
Monopoly Privileges, and GOLEMs, for
Government-Originated Legally Enforced
Monopolies. Some speak of "exclusive rights
regimes", but this means referring to
restrictions as rights, which is doublethink too.

But it is a mistake to replace "intellectual
property" with any other term. A different name
could eliminate the bias, but won't address the
term's deeper problem: overgeneralization. There
is no such unified thing as "intellectual
property". It is a mirage, which appears to have
a coherent existence only because the term
suggests it does.

The term "intellectual property" operates as a
catch-all to lump together disparate laws.
Non-lawyers who hear the term "intellectual
property" applied to these various laws tend to
assume they are instances of a common principle,
and that they 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 a work of authorship or art. Patent
law was intended to encourage publication of
ideas, at the price of finite monopolies over
these ideas--a price that may be worth paying in
some fields and not in others. Trademark law was
not intended to promote any business activity,
but simply to enable buyers to know what they are
buying; however, legislators under the influence
of "intellectual property" have turned it into a
scheme that provides incentives for advertising
(without asking the public if we want more
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 had best
assume that patent law is different. You'll
rarely go wrong that way!

Laymen are not alone in getting confused by this
term. I regularly find that experts on patent
law, copyright law, and trademark law, even law
professors who teach these subjects, have been
lured by the seductiveness of the term
"intellectual property" into general statements
that conflict with the facts they know. The term
distracts them from using their own knowledge.

People often say "intellectual property" when
they really mean some other category, larger or
smaller than "intellectual property". For
instance, rich countries impose laws on poor
countries to squeeze money out of them. These
laws often fit the category of "intellectual
property"--so people who question the fairness of
these laws often use that label, even though it
does not really fit. That can lead to incorrect
statements and unclear thinking. For this subject
I recommend using a term such as "legislative
colonization" that focuses on the central aspect
of the subject, rather than the term
"intellectual property". For other subjects, the
term that describes the subject would be
different.

The term "intellectual property" also leads to
simplistic thinking. It leads people to focus on
the meager commonality in form of these disparate
laws, which is that they create special powers
that can be bought and sold, and ignore their
substance--the specific restrictions each of them
places on the public, and the consequences that
result.

At such a broad scale, people can't even see the
specific public policy issues raised by copyright
law, or the different issues raised by patent
law, or any of the others. These issues arise
from the specifics, 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.
But patent law raises the issue of 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 that.
Neither of these issues is just an economic
issue, and anyone looking at them in the shallow
economic perspectives of overgeneralization can't
grasp them. Thus, any opinion about "the issue of
intellectual property" is almost surely foolish.
If you think it is one issue, you will tend to
consider only opinions that treat all these laws
the same. Whichever one you pick, it won't make
any sense.

If you want to think clearly about the issues
raised by patents, or copyrights, or trademarks,
or even learn what these laws say, the first step
is to forget the idea of lumping them together,
and treat them as separate topics. If you want to
write articles that inform the public and
encourage clear thinking, treat each of these
laws separately; don't suggest generalizing about
them.

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

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Copyright (C) 2004 Richard M. Stallman
Verbatim copying and distribution of this entire
article is permitted worldwide without royalty in
any medium provided this notice is preserved.

Updated: $Date: 2005/02/05 09:00:54 $ $Author:
jlpence $


=====
ENG: "Corporations are not democratic institutions --their directors and managers owe no accountability to anyone but the shareholders that employ them."
-----------------------------------------------------------------
ESP: "Las corporaciones (empresas) no son instituciones democráticas: a sus directores y gerentes no se les puede fincar responsabilidades ante nadie excepto ante sus accionistas que les emplean."

-- Bakan, Joel. (2004). The Corporation. The Pathological Pursuit of Profit and Power : La corporación (empresa). La búsqueda patológica de ganancias y poder. London: Constable & Robinson, p. 151


	
		
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