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

[Sigmascape1@cs.com]

I can see both sides of the issue. However, I have to say that I feel the term 'intellectual property' is a valid term. Here's an example why... JK Rowling wrote the Harry Potter books. She owns the copyrights to the books, and from a commercial standpoint, Harry Potter is most certainly an intellectual property. JK Rowling owns the 'property'.. property meaning the copyright of the book and its various licensing offspring. I don't own it, RMS doesn't own it, only Rowling. What would you call it other than a 'property'?

I agree with RMS on a lot of issues, this not being one of them.

Mitch


"Alan Story" <a.c.story@kent.ac.uk> wrote:

> 
>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 ]
>
>Return to the GNU Project home page.
>
>Please send FSF & GNU inquiries to gnu@gnu.org.
>There are also other ways to contact the FSF.
>Please send broken links and other corrections (or suggestions) to
>webmasters@gnu.org.
>
>Please see the Translations README for
>information on coordinating and submitting translations of this article.
>
>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
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>-----------------------------------------------------------------
>ESP: "Las corporaciones (empresas) no son instituciones democraticas: a sus
>directores y gerentes no se les puede fincar responsabilidades ante nadie
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>
>-- 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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