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diff --git a/talermerchantdemos/blog/articles/scrap1_15.html b/talermerchantdemos/blog/articles/scrap1_15.html new file mode 100644 index 0000000..be5d405 --- /dev/null +++ b/talermerchantdemos/blog/articles/scrap1_15.html @@ -0,0 +1,217 @@ +<!-- 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"/> + |