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+<!-- This is the second edition of Free Software, Free Society: Selected Essays of Richard M. Stallman.
+
+Free Software Foundation
+
+51 Franklin Street, Fifth Floor
+
+Boston, MA 02110-1335
+Copyright C 2002, 2010 Free Software Foundation, Inc.
+Verbatim copying and distribution of this entire book are permitted
+worldwide, without royalty, in any medium, provided this notice is
+preserved. Permission is granted to copy and distribute translations
+of this book from the original English into another language provided
+the translation has been approved by the Free Software Foundation and
+the copyright notice and this permission notice are preserved on all
+copies.
+
+ISBN 978-0-9831592-0-9
+Cover design by Rob Myers.
+
+Cover photograph by Peter Hinely.
+ -->
+
+
+ <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>
+ <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"/>
+