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diff --git a/src/frontend_blog/articles/scrap1_15.html b/src/frontend_blog/articles/scrap1_15.html index 6e28abe3..03d5b7ab 100644 --- a/src/frontend_blog/articles/scrap1_15.html +++ b/src/frontend_blog/articles/scrap1_15.html @@ -22,7 +22,7 @@ Cover design by Rob Myers. Cover photograph by Peter Hinely. --> <!-- Created on February 18, 2016 by texi2html 1.82 -texi2html was written by: +texi2html was written by: Lionel Cons <Lionel.Cons@cern.ch> (original author) Karl Berry <karl@freefriends.org> Olaf Bachmann <obachman@mathematik.uni-kl.de> @@ -31,10 +31,10 @@ Maintained by: Many creative people. Send bugs and suggestions to <texi2html-bug@nongnu.org> --> <head> -<title>Free Software, Free Society, 2nd ed.: 15. Did You Say “Intellectual Property”?@entrybreak{}It's a Seductive Mirage</title> +<title>Free Software, Free Society, 2nd ed.: 15. Did You Say ``Intellectual Property''? It's a Seductive Mirage</title> <meta name="description" content="This is the second edition of Richard Stallman's collection of essays."> -<meta name="keywords" content="Free Software, Free Society, 2nd ed.: 15. Did You Say “Intellectual Property”?@entrybreak{}It's a Seductive Mirage"> +<meta name="keywords" content="Free Software, Free Society, 2nd ed.: 15. Did You Say ``Intellectual Property''? It's a Seductive Mirage"> <meta name="resource-type" content="document"> <meta name="distribution" content="global"> <meta name="Generator" content="texi2html 1.82"> @@ -63,23 +63,170 @@ ul.toc {list-style: none} <body lang="en" bgcolor="#FFFFFF" text="#000000" link="#0000FF" vlink="#800080" alink="#FF0000"> +<a name="OS-Misses-Point"></a> +<header><div id="logo"><img src="../gnu.svg" height="100" width="100"></div><h1>Free Software, Free Society, 2nd ed.</h1></header><section id="main"><a name="not-ipr"></a> +<h1 class="chapter"> 15. Did You Say ``Intellectual Property''? It's a Seductive Mirage</h1> +<p>It has become fashionable to toss copyright, patents, and +trademarks—three separate and different entities involving three +separate and different sets of laws—plus a dozen other laws into +one pot and call it “intellectual property.” The +distorting and confusing term did not become common by accident. +Companies that gain from the confusion promoted it. The clearest way +out of the confusion is to reject the term entirely. +</p> +<p>According to Professor +<a name="index-Lemley_002c-Mark"></a> +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 +<a name="index-World-_0060_0060Intellectual-Property_0027_0027-Organization-_0028WIPO_0029-_0028see-also-_0060_0060intellectual-property_0027_0027_0029"></a> +World “Intellectual +Property” Organization (WIPO), and only became really common in recent +years. (WIPO is formally a +<a name="index-UN-_0028United-Nations_0029"></a> +UN organization, but in fact represents the +interests of the holders of copyrights, patents, and trademarks.) +</p> +<p>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 introduced by the term “intellectual property” suits them. +</p> +<p>The bias is reason enough 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. +</p> +<p>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 has misled them. +</p> +<p>The term “intellectual property” is at best a catch-all to +lump together disparate laws. Nonlawyers who hear one term applied to +these various laws tend to assume they are based on a common +principle and function similarly. +</p> +<p>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. +</p> +<p>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. +</p> +<p>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 the term “intellectual +property,” however, have turned it into a scheme that provides +incentives for advertising. +</p> +<p>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! +</p> +<p>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. +</p> +<p>Laymen are not alone in being confused by this term. Even law +professors who teach these laws are lured 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: +</p> +<blockquote class="smallquotation"> +<p>Unlike their descendants who now work the floor at WIPO, the framers +of the US constitution had a principled, procompetitive attitude to +intellectual property. They knew rights might be necessary, +but…they tied congress’s hands, restricting its power in +multiple ways. +</p> +</blockquote> -<hr size="2"> -<table cellpadding="1" cellspacing="1" border="0"> -<tr><td valign="middle" align="left">[<a href="scrap1_14.html#OS-Misses-Point" title="Previous section in reading order"> < </a>]</td> -<td valign="middle" align="left">[<a href="scrap1_16.html#Words-to-Avoid" title="Next section in reading order"> > </a>]</td> -<td valign="middle" align="left"> </td> -<td valign="middle" align="left">[Contents]</td> -<td valign="middle" align="left">[<a href="scrap1_U.4.html#Index" title="Index">Index</a>]</td> -<td valign="middle" align="left">[<a href="scrap1_abt.html#SEC_About" title="About (help)"> ? </a>]</td> -</tr></table> -<p> - <font size="-1"> - This document was generated by <em>Christian Grothoff</em> on <em>February 18, 2016</em> using <a href="http://www.nongnu.org/texi2html/"><em>texi2html 1.82</em></a>. - </font> - <br> - +<p>That statement refers to Article I, Section 8, Clause 8, of the +<a name="index-Constitution_002c-copyright-law_002c-trademark-law_002c-patent-law_002c-and-US"></a> +US +Constitution, which authorizes copyright law and patent law. That +clause, though, has nothing to do with trademark law or various +others. The term “intellectual property” led that +professor to make false generalization. +</p> +<p>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. +</p> +<a name="index-citizen-values_002c-production-v_002e-freedom-and-way-of-life"></a> +<p>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. +</p> +<p>Another problem is that, at the broad scale implicit in the term “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. +</p> +<p>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. +</p> +<p>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. +</p> +<a name="index-call-to-action_002c-use-correct-terminology-_0028see-also-terminology_0029"></a> +<p>If you want to think clearly about the issues raised by patents, or +copyrights, or trademarks, or various other different laws, 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. +</p> +<a name="index-World-_0060_0060Intellectual-Property_0027_0027-Organization-_0028WIPO_0029-_0028see-also-_0060_0060intellectual-property_0027_0027_0029-1"></a> +<p>And when it comes to reforming WIPO, among other things +let’s call for changing its name. </p> + <hr size="2"> </body> </html> |