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