Apologies for cross-posting. FN
Date: Sun, 31 Oct 2004 11:23:15 +0000 From: Sunil Abraham sunil@mahiti.org Subject: [fsug-kochi-discuss] [Commons-Law] Did You Say "Intellectual Property"? It's a Seductive Mirage To: Commons Law commons-law@sarai.net
Did You Say "Intellectual Property"? It's a Seductive Mirage -- by Richard Stallman
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 was promoted by those who gain from this. 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 when it comes to reforming WIPO, among other things let's call for changing its name.
Copyright 2004 Richard Stallman Verbatim copying and distribution of this entire article are permitted worldwide without royalty in any medium provided this notice is preserved. Thanks,
ಸುನೀಲ್ -- Sunil Abraham, sunil@mahiti.org http://www.mahiti.org 314/1, 7th Cross, Domlur Bangalore - 560 071 Karnataka, INDIA Ph/Fax: +91 80 51150580. Mobile: +91 80 36701931
Currently on sabbatical with APDIP/UNDP Manager - International Open Source Network Wisma UN, Block C Komplex Pejabat Damansara. Jalan Dungun, Damansara Heights. 50490 Kuala Lumpur. P. O. Box 12544, 50782, Kuala Lumpur, Malaysia Tel: (60) 3-2091-5167, Fax: (60) 3-2095-2087 sunil@apdip.net http://www.iosn.net http://www.apdip.net
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