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diff --git a/talermerchantdemos/blog/articles/en/not-ipr.html b/talermerchantdemos/blog/articles/en/not-ipr.html new file mode 100644 index 0000000..eb61d00 --- /dev/null +++ b/talermerchantdemos/blog/articles/en/not-ipr.html @@ -0,0 +1,321 @@ +<!--#include virtual="/server/header.html" --> +<!-- Parent-Version: 1.86 --> +<title>Did You Say “Intellectual Property”? It's a Seductive Mirage +- GNU Project - Free Software Foundation</title> +<!--#include virtual="/philosophy/po/not-ipr.translist" --> +<!--#include virtual="/server/banner.html" --> +<h2>Did You Say “Intellectual Property”? It's a Seductive Mirage</h2> + +<p>by <a href="http://www.stallman.org/">Richard M. Stallman</a></p> + +<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 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 World “Intellectual +Property” Organization (WIPO), and only became really common in recent +years. (WIPO is formally a UN organization, but in fact represents the +interests of the holders of copyrights, patents, and trademarks.) Wide use dates from +<a href="https://books.google.com/ngrams/graph?content=intellectual+property&year_start=1800&year_end=2008&corpus=15&smoothing=1&share=&direct_url=t1%3B%2Cintellectual%20property%3B%2Cc0">around +1990</a>. (<a href="/graphics/seductivemirage.png">Local image copy</a>) +</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 about the laws in question. +</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> +For instance, 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. And these are just +three out of many laws that the term refers to. +</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> +In practice, nearly all general statements you encounter that are +formulated using “intellectual property” will be false. +For instance, you'll see claims that “its” purpose is to +“promote innovation”, but that only fits patent law and +perhaps plant variety monopolies. Copyright law is not concerned with +innovation; a pop song or novel is copyrighted even if there is +nothing innovative about it. Trademark law is not concerned with +innovation; if I start a tea store and call it “rms tea”, +that would be a solid trademark even if I sell the same teas in the +same way as everyone else. Trade secret law is not concerned with +innovation, except tangentially; my list of tea customers would be a +trade secret with nothing to do with innovation.</p> + +<p> +You will also see assertions that “intellectual property” +is concerned with “creativity”, but really that only fits +copyright law. More than creativity is needed to make a patentable +invention. Trademark law and trade secret law have nothing to do with +creativity; the name “rms tea” isn't creative at all, and +neither is my secret list of tea customers.</p> + +<p> +People often say “intellectual property” when they really +mean some larger or smaller set of laws. For instance, rich countries +often impose unjust laws on poor countries to squeeze money out of +them. Some of these laws are among those called “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><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> + +<p> +That statement refers to Article 1, Section 8, Clause 8 of the US +Constitution, which authorizes copyright law and patent law. That +clause, though, has nothing to do with trademark law, trade secret +law, or various others. The term “intellectual property” +led that professor to make a 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> + +<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> + +<p> +Rejection of “intellectual property” is not mere +philosophical recreation. The term does real harm. Apple used it +to <a href="https://www.theguardian.com/us-news/2017/mar/11/nebraska-farmers-right-to-repair-bill-stalls-apple">warp debate about Nebraska's +“right to repair” bill</a>. The bogus concept gave +Apple a way to dress up its preference for secrecy, which conflicts +with its customers' rights, as a supposed principle that customers +and the state must yield to.</p> + +<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> + +<p>And when it comes to reforming WIPO, here is <a +href="http://fsfe.org/projects/wipo/wiwo.en.html">one proposal for +changing the name and substance of WIPO</a>. +</p> + +<hr /> + +<p> +See also <a href="/philosophy/komongistan.html">The Curious History of +Komongistan (Busting the term “intellectual property”)</a>. +</p> + +<p> +Countries in Africa are a lot more similar than these laws, and +“Africa” is a coherent geographical concept; nonetheless, +<a href="http://www.theguardian.com/world/2014/jan/24/africa-clinton"> +talking about “Africa” instead of a specific country +causes lots of confusion</a>. +</p> + +<p> +<a href="http://torrentfreak.com/language-matters-framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714/"> +Rickard Falkvinge supports rejection of this term</a>.</p> + +<p><a +href="http://www.locusmag.com/Perspectives/2016/11/cory-doctorow-sole-and-despotic-dominion/"> +Cory Doctorow also condemns</a> the term “intellectual +property.”</p> + +</div><!-- for id="content", starts in the include above --> +<!--#include virtual="/server/footer.html" --> +<div id="footer"> +<div class="unprintable"> + +<p>Please send general FSF & GNU inquiries to +<a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. +There are also <a href="/contact/">other ways to contact</a> +the FSF. Broken links and other corrections or suggestions can be sent +to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> + +<p><!-- TRANSLATORS: Ignore the original text in this paragraph, + replace it with the translation of these two: + + We work hard and do our best to provide accurate, good quality + translations. However, we are not exempt from imperfection. + Please send your comments and general suggestions in this regard + to <a href="mailto:web-translators@gnu.org"> + <web-translators@gnu.org></a>.</p> + + <p>For information on coordinating and submitting translations of + our web pages, see <a + href="/server/standards/README.translations.html">Translations + README</a>. --> +Please see the <a +href="/server/standards/README.translations.html">Translations +README</a> for information on coordinating and submitting translations +of this article.</p> +</div> + +<!-- Regarding copyright, in general, standalone pages (as opposed to + files generated as part of manuals) on the GNU web server should + be under CC BY-ND 4.0. Please do NOT change or remove this + without talking with the webmasters or licensing team first. + Please make sure the copyright date is consistent with the + document. 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