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

[Alan Story]

I beg to differ with the main thrust of the article (below) by Richard
Stallman. While I certainly agree that it is wrong to over-generalise about
how to understand and classify phenomena such as copyright and patents, it
is now becoming "fashionable" and downright "seductive" --- to use Richard's
words ---- to fail to appreciate how similar such phenomena, in fact, are
and the essential similarity of their effects on the peoples of the world. 

Yes, we may not like the term "intellectual property" and we can certainly
agree that the propertiness of IP is very different from the propertiness of
a piece of land or your toothbrush, but to say that they are not really
property rights is, in my view, simply not accurate. The law in the UK
---and in many other countries ---- recognises these phenomena as a
"property" right.     

For example, Section (1),(1) of Part One ----in other words, the very first
sentence --- of the UK Copyright, Designs and Patents Act 1988 begins:
"Copyright is property right...." ( I appreciate that the US Copyright Act
does not contain this wording.) The UK Trade Marks Act 1994 states (in
Section 22) that " a registered trade mark is personal property..." And
Section 33 (1) of the UK Patents Act 1977 states "Any person who claims to
have acquired the property in a patent..."

Now let's go on to list the ways that patents and copyright are esasentially
similar and see whether they are mere details. Although the copyright and
patent laws in the US and the UK, to take two countries, are not exactly
identical, patent and copyright laws in both jurisdictions/countries have
the following similarities and effects in both jurisdictions:

1) both protect forms of intangible "property";

2) both protect ideas or expressions as state-created and state-enforced
private commodities; and both restrict access on the same basis.
 
3) both are owned as commodities by rights holders ( a.k.a. owners) who are
given specific and extensive property-like "rights", indeed often
approaching absolute monopoly rights; compare Microsoft's copyright in its
Word programme with a patent in Word. 

4) both allow rights holders to bring infringement actions against those
who, subject to some exceptions, use the property rights of the rights
holder without the permission of the rights holder.

5) the creators of the most of the ideas/expressions are not the actual
owners. Rather, it is usually employers who are the owners...who, in turn,
retain most of the benefits;

6) both are time-limited forms of property (unlike most other forms of
property.)

7) both create serious problems of access to ideas/expressions for
non-rights holders (a.k.a. users and the public) and both seriously restrict
the public domain, access to education, innovation, etc.

8) both are significant engines of capital accumulation, primarily by large
corporations( e.g. Microsoft, Time-Warner, Pzizer, Oxford University Press),
both domestically and globally...and are leading examples of globalisation
and weapons to oppress countries of the South ( a.k.a. developing
countries)(examples: drug patents for anti HIV-Aids medicines , biopiracy,
the Berne Convention, software copyright and software patents, etc.)

9) both are the products of Anglo/European culture of a particular era,
promote essentially similar values, and both have been and are being
exported world-wide through the non-too- subtle efforts of organisations
such as WIPO, the USTR, etc. and exploitative treaties such as TRIPS.
Indeed, both legal forms are justified principally by the same rationale:
the need for incentives within market structures. 

10) both are used to oppress and "rip-off" indigenous peoples ( patents in
the case of biopiracy, copyright in the case of music, culture, and
designs.)   

We could expand this list and we could, of course, also go on to enumerate
the differences, sometimes important differences, between copyright and
patents. But we suggest to that the many similarities (see above) between
the two forms are minor and inconsequential --- or merely theoretical --- is
,well, seriously off the mark in my view. In other words, their similarities
are more crucial than their differences. 


Best 
Alan 

Alan Story
Lecturer 
Kent Law School 
University of Kent 
Canterbury, Kent, UK 
acs3@kent.ac.uk
+44 (0)1227 823316 


-----Original Message-----
From: upd-discuss-admin@lists.essential.org
[mailto:upd-discuss-admin@lists.essential.org] On Behalf Of Zapopan Martin
Muela-Meza
Sent: Thursday 17 February 2005 11:00
To: Union Public Domain
Subject: [Upd-discuss] Did You Say "Intellectual Property"? It's a Seductive
Mirage by Richard M. Stallman

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.

Translations of this page:
[ English | French | Italian ]

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Copyright (C) 2004 Richard M. Stallman
Verbatim copying and distribution of this entire article is permitted
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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 democraticas: 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 corporacisn (empresa). La bzsqueda patolsgica de ganancias y
poder. London: Constable & Robinson, p. 151


	
		
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