not-ipr.html (14822B)
1 <!--#include virtual="/server/header.html" --> 2 <!-- Parent-Version: 1.96 --> 3 <!-- This page is derived from /server/standards/boilerplate.html --> 4 <!--#set var="TAGS" value="essays laws noip" --> 5 <!--#set var="DISABLE_TOP_ADDENDUM" value="yes" --> 6 <title>Did You Say “Intellectual Property”? It's a Seductive Mirage 7 - GNU Project - Free Software Foundation</title> 8 <!--#include virtual="/philosophy/po/not-ipr.translist" --> 9 <!--#include virtual="/server/banner.html" --> 10 <!--#include virtual="/philosophy/ph-breadcrumb.html" --> 11 <!--GNUN: OUT-OF-DATE NOTICE--> 12 <!--#include virtual="/server/top-addendum.html" --> 13 <div class="article reduced-width"> 14 <h2>Did You Say “Intellectual Property”? It's a Seductive Mirage</h2> 15 16 <address class="byline">by 17 <a href="https://www.stallman.org/">Richard Stallman</a></address> 18 19 <div class="introduction"> 20 <p> 21 It has become fashionable to toss copyright, patents, and 22 trademarks—three separate and different entities involving three 23 separate and different sets of laws—plus a dozen other laws into 24 one pot and call it “intellectual property.” The 25 distorting and confusing term did not become common by accident. 26 Companies that gain from the confusion promoted it. The clearest way 27 out of the confusion is to reject the term entirely. 28 </p> 29 </div> 30 31 <p> 32 According to Professor Mark Lemley, now of the Stanford Law School, 33 the widespread use of the term “intellectual property” is 34 a fashion that followed the 1967 founding of the World “Intellectual 35 Property” Organization (WIPO), and only became really common in recent 36 years. (WIPO is formally a UN organization, but in fact represents the 37 interests of the holders of copyrights, patents, and trademarks.) Wide use dates from 38 <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 39 1990</a>. (<a href="/graphics/seductivemirage.png">Local image copy</a>) 40 </p> 41 42 <p> 43 The term carries a bias that is not hard to see: it suggests thinking 44 about copyright, patents and trademarks by analogy with property 45 rights for physical objects. (This analogy is at odds with the legal 46 philosophies of copyright law, of patent law, and of trademark law, 47 but only specialists know that.) These laws are in fact not much like 48 physical property law, but use of this term leads legislators to 49 change them to be more so. Since that is the change desired by the 50 companies that exercise copyright, patent and trademark powers, the 51 bias introduced by the term “intellectual property” suits them. 52 </p> 53 54 <p> 55 The bias is reason enough to reject the term, and people have often 56 asked me to propose some other name for the overall category—or 57 have proposed their own alternatives (often humorous). Suggestions 58 include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for 59 Government-Originated Legally Enforced Monopolies. Some speak of 60 “exclusive rights regimes,” but referring to restrictions 61 as “rights” is doublethink too. 62 </p> 63 64 <p> 65 Some of these alternative names would be an improvement, but it is a 66 mistake to replace “intellectual property” with any other 67 term. A different name will not address the term's deeper problem: 68 overgeneralization. There is no such unified thing as 69 “intellectual property”—it is a mirage. The only 70 reason people think it makes sense as a coherent category is that 71 widespread use of the term has misled them about the laws in question. 72 </p> 73 74 <p> 75 The term “intellectual property” is at best a catch-all to 76 lump together disparate laws. Nonlawyers who hear one term applied to 77 these various laws tend to assume they are based on a common 78 principle and function similarly. 79 </p> 80 81 <p> 82 Nothing could be further from the case. 83 These laws originated separately, evolved differently, cover different 84 activities, have different rules, and raise different public policy issues. 85 </p> 86 87 <p> 88 For instance, copyright law was designed to promote authorship and 89 art, and covers the details of expression of a work. Patent law was 90 intended to promote the publication of useful ideas, at the price of 91 giving the one who publishes an idea a temporary monopoly over 92 it—a price that may be worth paying in some fields and not in 93 others. 94 </p> 95 96 <p> 97 Trademark law, by contrast, was not intended to promote any particular 98 way of acting, but simply to enable buyers to know what they are 99 buying. Legislators under the influence of the term “intellectual 100 property,” however, have turned it into a scheme that provides 101 incentives for advertising. And these are just 102 three out of many laws that the term refers to. 103 </p> 104 105 <p> 106 Since these laws developed independently, they are different in every 107 detail, as well as in their basic purposes and methods. Thus, if you 108 learn some fact about copyright law, you'd be wise to assume that 109 patent law is different. You'll rarely go wrong! 110 </p> 111 112 <p> 113 In practice, nearly all general statements you encounter that are 114 formulated using “intellectual property” will be false. 115 For instance, you'll see claims that “its” purpose is to 116 “promote innovation,” but that only fits patent law and 117 perhaps plant variety monopolies. Copyright law is not concerned with 118 innovation; a pop song or novel is copyrighted even if there is 119 nothing innovative about it. Trademark law is not concerned with 120 innovation; if I start a tea store and call it “rms tea,” 121 that would be a solid trademark even if I sell the same teas in the 122 same way as everyone else. Trade secret law is not concerned with 123 innovation, except tangentially; my list of tea customers would be a 124 trade secret with nothing to do with innovation.</p> 125 126 <p> 127 You will also see assertions that “intellectual property” 128 is concerned with “creativity,” but really that only fits 129 copyright law. More than creativity is needed to make a patentable 130 invention. Trademark law and trade secret law have nothing to do with 131 creativity; the name “rms tea” isn't creative at all, and 132 neither is my secret list of tea customers.</p> 133 134 <p> 135 People often say “intellectual property” when they really 136 mean some larger or smaller set of laws. For instance, rich countries 137 often impose unjust laws on poor countries to squeeze money out of 138 them. Some of these laws are among those called “intellectual 139 property” laws, and others are not; nonetheless, critics of the 140 practice often grab for that label because it has become familiar to 141 them. By using it, they misrepresent the nature of the issue. It 142 would be better to use an accurate term, such as “legislative 143 colonization,” that gets to the heart of the matter. 144 </p> 145 146 <p> 147 Laymen are not alone in being confused by this term. Even law 148 professors who teach these laws are lured and distracted by the 149 seductiveness of the term “intellectual property,” and 150 make general statements that conflict with facts they know. For 151 example, one professor wrote in 2006: 152 </p> 153 154 <blockquote><p> 155 Unlike their descendants who now work the floor at WIPO, the framers 156 of the US constitution had a principled, procompetitive attitude to 157 intellectual property. They knew rights might be necessary, 158 but…they tied congress's hands, restricting its power in 159 multiple ways. 160 </p></blockquote> 161 162 <p> 163 That statement refers to Article 1, Section 8, Clause 8 of the US 164 Constitution, which authorizes copyright law and patent law. That 165 clause, though, has nothing to do with trademark law, trade secret 166 law, or various others. The term “intellectual property” 167 led that professor to make a false generalization. 168 </p> 169 170 <p> 171 The term “intellectual property” also leads to simplistic 172 thinking. It leads people to focus on the meager commonality in form 173 that these disparate laws have—that they create artificial 174 privileges for certain parties—and to disregard the details 175 which form their substance: the specific restrictions each law places 176 on the public, and the consequences that result. This simplistic focus 177 on the form encourages an “economistic” approach to all 178 these issues. 179 </p> 180 181 <p> 182 Economics operates here, as it often does, as a vehicle for unexamined 183 assumptions. These include assumptions about values, such as that 184 amount of production matters while freedom and way of life do not, 185 and factual assumptions which are mostly false, such as that 186 copyrights on music supports musicians, or that patents on drugs 187 support life-saving research. 188 </p> 189 190 <p> 191 Another problem is that, at the broad scale implicit in the term “intellectual 192 property,” the specific issues raised by the various laws become 193 nearly invisible. These issues arise from the specifics of each 194 law—precisely what the term “intellectual property” 195 encourages people to ignore. For instance, one issue relating to 196 copyright law is whether music sharing should be allowed; patent law 197 has nothing to do with this. Patent law raises issues such as whether 198 poor countries should be allowed to produce life-saving drugs and sell 199 them cheaply to save lives; copyright law has nothing to do with such 200 matters. 201 </p> 202 203 <p> 204 Neither of these issues is solely economic in nature, and their 205 noneconomic aspects are very different; using the shallow economic 206 overgeneralization as the basis for considering them means ignoring the 207 differences. Putting the two laws in the “intellectual 208 property” pot obstructs clear thinking about each one. 209 </p> 210 211 <p> 212 Thus, any opinions about “the issue of intellectual 213 property” and any generalizations about this supposed category 214 are almost surely foolish. If you think all those laws are one issue, 215 you will tend to choose your opinions from a selection of sweeping 216 overgeneralizations, none of which is any good. 217 </p> 218 219 <p> 220 Rejection of “intellectual property” is not mere 221 philosophical recreation. The term does real harm. Apple used it 222 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 223 “right to repair” bill</a>. The bogus concept gave 224 Apple a way to dress up its preference for secrecy, which conflicts 225 with its customers' rights, as a supposed principle that customers 226 and the state must yield to.</p> 227 228 <p> 229 If you want to think clearly about the issues raised by patents, or 230 copyrights, or trademarks, or various other different laws, the first 231 step is to 232 forget the idea of lumping them together, and treat them as separate 233 topics. The second step is to reject the narrow perspectives and 234 simplistic picture the term “intellectual property” 235 suggests. Consider each of these issues separately, in its fullness, 236 and you have a chance of considering them well. 237 </p> 238 239 <p>And when it comes to reforming WIPO, here is <a 240 href="https://fsfe.org/activities/wipo/wiwo.en.html">one proposal for 241 changing the name and substance of WIPO</a>. 242 </p> 243 244 <hr /> 245 246 <p> 247 See also <a href="/philosophy/komongistan.html">The Curious History of 248 Komongistan (Busting the term “intellectual property”)</a>. 249 </p> 250 251 <p> 252 Countries in Africa are a lot more similar than these laws, and 253 “Africa” is a coherent geographical concept; nonetheless, 254 <a href="https://www.theguardian.com/world/2014/jan/24/africa-clinton"> 255 talking about “Africa” instead of a specific country 256 causes lots of confusion</a>. 257 </p> 258 259 <p> 260 <a href="https://torrentfreak.com/language-matters-framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714/"> 261 Rickard Falkvinge supports rejection of this term</a>.</p> 262 263 <p><a 264 href="http://www.locusmag.com/Perspectives/2016/11/cory-doctorow-sole-and-despotic-dominion/"> 265 Cory Doctorow also condemns</a> the term “intellectual 266 property.”</p> 267 </div> 268 269 </div><!-- for id="content", starts in the include above --> 270 <!--#include virtual="/server/footer.html" --> 271 <div id="footer" role="contentinfo"> 272 <div class="unprintable"> 273 274 <p>Please send general FSF & GNU inquiries to 275 <a href="mailto:gnu@gnu.org"><gnu@gnu.org></a>. 276 There are also <a href="/contact/">other ways to contact</a> 277 the FSF. Broken links and other corrections or suggestions can be sent 278 to <a href="mailto:webmasters@gnu.org"><webmasters@gnu.org></a>.</p> 279 280 <p><!-- TRANSLATORS: Ignore the original text in this paragraph, 281 replace it with the translation of these two: 282 283 We work hard and do our best to provide accurate, good quality 284 translations. However, we are not exempt from imperfection. 285 Please send your comments and general suggestions in this regard 286 to <a href="mailto:web-translators@gnu.org"> 287 <web-translators@gnu.org></a>.</p> 288 289 <p>For information on coordinating and contributing translations of 290 our web pages, see <a 291 href="/server/standards/README.translations.html">Translations 292 README</a>. --> 293 Please see the <a 294 href="/server/standards/README.translations.html">Translations 295 README</a> for information on coordinating and contributing translations 296 of this article.</p> 297 </div> 298 299 <!-- Regarding copyright, in general, standalone pages (as opposed to 300 files generated as part of manuals) on the GNU web server should 301 be under CC BY-ND 4.0. Please do NOT change or remove this 302 without talking with the webmasters or licensing team first. 303 Please make sure the copyright date is consistent with the 304 document. For web pages, it is ok to list just the latest year the 305 document was modified, or published. 306 307 If you wish to list earlier years, that is ok too. 308 Either "2001, 2002, 2003" or "2001-2003" are ok for specifying 309 years, as long as each year in the range is in fact a copyrightable 310 year, i.e., a year in which the document was published (including 311 being publicly visible on the web or in a revision control system). 312 313 There is more detail about copyright years in the GNU Maintainers 314 Information document, www.gnu.org/prep/maintain. --> 315 316 <p>Copyright © 2004, 2006, 2010, 2013-2017, 2021 Richard Stallman</p> 317 318 <p>This page is licensed under a <a rel="license" 319 href="http://creativecommons.org/licenses/by-nd/4.0/">Creative 320 Commons Attribution-NoDerivatives 4.0 International License</a>.</p> 321 322 <!--#include virtual="/server/bottom-notes.html" --> 323 324 <p class="unprintable">Updated: 325 <!-- timestamp start --> 326 $Date: 2021/10/01 10:55:57 $ 327 <!-- timestamp end --> 328 </p> 329 </div> 330 </div><!-- for class="inner", starts in the banner include --> 331 </body> 332 </html>