Criticism of intellectual property
Encyclopedia
The societal views on intellectual property
include both the positive criticisms and the negative criticisms of intellectual property.
Critics of the term "intellectual property" argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright and patent law as specific legal instruments designed to promote the common good
and towards a conception of ideas as inviolable property granted by natural law
. The terminological shift coincides with the usage of pejorative terms for copyright infringement
such as "piracy
" and "theft".
Some critics of intellectual property, such as those in the free culture movement
, characterize it as intellectual protectionism, intellectual monopoly or government-granted monopoly
, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. A critique against the idea of intellectual property has been formulated by Eben Moglen in his dotCommunist Manifesto:
Some critics reject intellectual property altogether. Richard Stallman
argues that "the term systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion.…[It] operates as a catch-all to lump together disparate laws…[which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." These critics advocate referring to copyright
s, patent
s and trademark
s separately, and warn against conflating disparate laws into a collective term.
In 2004 the WIPO was criticized in The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself".
jurisdictions, this was historically done to grant a boon to a king's favorite in the form of letters patent
(with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). Jurisdictions with written constitutions generally vest the government with power to grant such monopolies or otherwise provide for the protection of intangible property. For example, Article I, Section 8, Clause 8 of the United States Constitution
accords Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem
" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive intellectual property rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analysis associated with the term tend to overlook or even to attempt to defeat the fact that published information is intrinsically free and that in fact this is the whole point of such exclusive rights—to publish, to provide information to the public.
By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup his investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.
In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rightsholder, even to the detriment of society at large; and this development has attracted some opponents (Lawrence Lessig
, James Boyle
, William Patry). The formulation in the US Constitution (noted above) is specifically about public benefit.
Intellectual property rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified or statutory provisions for fair use
for copyright works). Some analogize these considerations to public easement
s, since they grant the public certain rights which are considered essential. Different countries may have subtle or dramatic differences in the scope or protection and permitted uses of different types of intellectual property. A fair use in one jurisdiction can easily be an infringing use elsewhere.
Authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Using the term "intellectual monopoly" instead implies that so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights
notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Another approach is simply to avoid a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.
rationale for intellectual property laws is that they, in some way, provide rights to the inventor or author. The rationale for patent law is that it grants the right to exclude others from making, using, offering for sale, selling, or importing the invention in(to) the country where it was patented. The public policy rationale for trademark rights are that they may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. The public policy rationale for copyright law is that it is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
Many people believe that intellectual property provides a temporary monopoly
that protects the use or exploitation of that good, supported by legal enforcement mechanisms. The United States Supreme Court frequently refers to a patent
as providing a "limited monopoly." This is not, however, appropriate usage of the term monopoly
in the economic sense. In fact, intellectual property protection cannot properly be thought of as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an owner of intellectual property.
There are also more specialized varieties of sui generis
exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act
in Canadian law, and in European Union law
by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights
, plant variety rights, industrial design rights
, supplementary protection certificate
s for pharmaceutical products and database rights
(in European law).
Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use
. Many countries' legal systems afford compulsory license
s for particular activities, especially in the area of patent
law.
Most exclusive rights are awarded by a government for a limited period of time. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system. "Intellectual property" law creates transaction costs that could in some circumstances outweigh these gains. Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss
into the economy, and encourages rent seeking
behavior.
What the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent. Ayn Rand
, founder of Objectivism
, supported copyrights and patents, noting in Capitalism: The Unknown Ideal
:
Although she argued that the term should be limited:
has also had the effect of treating a corporation or business owner as the legal author of works created by employees.
The American film industry helped to change the social construct of intellectual property by giving rise to a shrewd and well-funded trade organization, the Motion Picture Association of America
. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA consistently advocated strong protection of intellectual-property rights. In framing its presentations, the association has capitalized on lawmakers' receptivity to labor-desert theory - that is that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. This strategy has been highly effective; with remarkable frequency, the positions the association has supported have prevailed. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.
The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire.
The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights
. Pursuant to TRIPs, any sign
which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft
's slogan "Where do you want to go today?
" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademark
s in the marketplace
, harmonisation may not amount to a fundamental expansion of the trademark concept.
In the context of patents, the grant of patents in some jurisdiction
s over certain life forms, software
algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter.
Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain
for the common good
. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Peter Drahos
notes that "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."
Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies. Others, e.g. Federal Judge and prolific legal scholar Richard Posner
and Economist William Landes
in the co-authored, The Economic Structure of Intellectual Property Law (Harvard Univ. Press 2003), argue that artists can get still ideas from copyrighted works as long as they don't plagiarise - that copyright only protects the expression of ideas and not the ideas themselves.
The electronic age has seen an increase in the attempt to use software-based digital rights management
tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use
provisions of copyright law and even make the exhaustion of exclusive distribution rights after the first sale
of a product moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act
, which uses criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC).
At the same time, the growth of the Internet
, and particularly distributed search engines like Kazaa
and Gnutella
, represents a challenge for exclusive rights policy. The Recording Industry Association of America
, in particular, has been on the front lines of the fight against what it terms "piracy
". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster
, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.
s such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly
for this reason.
However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate.
The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalrous
. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons
can result.
The subjects of intellectual property do not share this feature of rivalness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and nonexcludability combine to make them public good
s and susceptible to the free rider problem
. A rationale for "intellectual property" therefore rests on incentive effects to overcome the "free rider problem". This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship.
A more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study has found that the introduction of exclusive rights to databases in the EU did not do any good to the economy.
The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this. Such examples include the Business Software Alliance
(BSA), which purports to represent the interests of the commercial software industry or the Recording Industry Association of America
(RIAA), which represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, "intellectual property" tends to reduce the rights of its primary beneficiaries, the general public.
Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rightsholder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for such data. The BSA reports a study that claims "while over $100 billion in software was installed on computers worldwide in 2006, only $65 billion was legally purchased". The BSA says "software pirates" avoided a cost of over $35 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost
that is yet uncounted.
It is important to note that there are many other functioning, alternative economic models to the IP model in use, including the service model, the broadcast model, the advertising model, and the tariff model. As pointed out by Ram Samudrala, none of the alternative models abridge the freedom of copying, use, distribution, and modification of published information, but yet compensate and attribute authors. Ram Samudrala also emphasizes that the economic situation when copying intellectual property is unrestricted is analogous to a situation where exists a product X whose cost is $x, and a product another Y (very similar or identical to X) whose cost is $y, where $y << $x ($y is much less than $x). These situations occur frequently in the marketplace, and people marketing X routinely triumph (economically) over people marketing Y.
The term intellectual property has been criticized on the grounds that the rights conferred by exclusive rights laws are in some ways more limited than the legal rights associated with property interests in physical goods — chattels or land — real property
. The inclusion of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, by helping them draw on concepts associated with those older forms of property in support of their argument for removing limitations on rights when those limitations would be generally seen as inappropriate if applied to physical goods. For example, most nations grant copyrights for only limited terms; all limit the terms of patents. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. By contrast, physical property laws rarely restrict the sale or modification of physical copies of a work (something that many copyright laws do restrict).
A common argument against the term intellectual property is that information is fundamentally different from physical property in that there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella
, in his Journal of Libertarian Studies article "Against Intellectual Property", details his objection to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas. Other libertarians, such as Shaun Connell of the Rebirth of Freedom Foundation, argue that intellectual property doesn't exist on any level, and that no person has a "right" to all of the rewards of a concept, whether the person created it or not. Thus there is no direct analogue to "theft"; the closest analogue is to copy or use the information without permission, which does not affect the original possession (see the tragedy of the commons
).
Another, more specific objection to the term, held by Richard Stallman
, is that the term is confusing. Stallman argues that the term implies a non-existent similarity between copyright
s, patent
s, trademark
s, and other forms of exclusive rights, which makes clear thinking and discussion about various forms difficult. For example, those that pertain to intellectual content (copyrights and patents) have limited terms, hence differ from conventional property, whereas trademarks, which have unlimited terms, are merely signs and lack intellectual content. Furthermore, most legal systems, including that of the United States
, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
Law treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement
is not punishable by laws against theft
or trespass
, but rather by an entirely different set of laws with different penalties. Patent infringement
is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is primarily federal.
Likewise in other areas the term "property" is applied to legal rights and remedies of analogous kinds. For example, in some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen — if someone moves into a flat and prevents the original residents from living there they are not regarded as 'thieves of the lease' but as 'squatters' and the law provides different remedies. Identity theft
is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some. These examples, however, address the use of the term "property" in a technical legal context, not the meaning of the term as understood in public discourse.
jurisdictions, intellectual property has often been referred to as intellectual rights
, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.
Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman
— see below. The backronym
s intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.
The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte Andersen and Thomas Alured Faunce
.
One issue concerning such proposals is that if intellectual property exists there must be a parallel concept of intellectual capital
— capital
being the property that permits more property to be created. This, and the related term instructional capital
that applies to the proper subset of patent
s and non-fiction copyright
, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset
. See more in the "Economic view" section below.
The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright
concerns (original) “works of authorship” such as literature and art, patent
concerns new and useful inventions, and trademark
s concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations
' World Intellectual Property Organisation on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce". These critics see this assertion as propaganda
for a "property view", and suggest alternative terms such as individual capital
, instructional capital
and social capital
over the term "intellectual capital
", which has an ambiguous status, even among believers in neoclassical economics
. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial".
Intellectual property
Intellectual property is a term referring to a number of distinct types of creations of the mind for which a set of exclusive rights are recognized—and the corresponding fields of law...
include both the positive criticisms and the negative criticisms of intellectual property.
Critics of the term "intellectual property" argue that the increased use of this terminology coincided with a more general shift away from thinking about things like copyright and patent law as specific legal instruments designed to promote the common good
Common good
The common good is a term that can refer to several different concepts. In the popular meaning, the common good describes a specific "good" that is shared and beneficial for all members of a given community...
and towards a conception of ideas as inviolable property granted by natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
. The terminological shift coincides with the usage of pejorative terms for copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
such as "piracy
Piracy
Piracy is an act of robbery or criminal violence at sea. The term can include acts committed on land, in the air, or in other major bodies of water or on a shore. It does not normally include crimes committed against persons traveling on the same vessel as the perpetrator...
" and "theft".
Some critics of intellectual property, such as those in the free culture movement
Free Culture movement
The free culture movement is a social movement that promotes the freedom to distribute and modify creative works in the form of free content by using the Internet and other forms of media....
, characterize it as intellectual protectionism, intellectual monopoly or government-granted monopoly
Government-granted monopoly
In economics, a government-granted monopoly is a form of coercive monopoly by which a government grants exclusive privilege to a private individual or firm to be the sole provider of a good or service; potential competitors are excluded from the market by law, regulation, or other mechanisms of...
, and argue the public interest is harmed by protectionist legislation such as copyright extension, software patents and business method patents. A critique against the idea of intellectual property has been formulated by Eben Moglen in his dotCommunist Manifesto:
Some critics reject intellectual property altogether. Richard Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
argues that "the term systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion.…[It] operates as a catch-all to lump together disparate laws…[which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues." These critics advocate referring to copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s and trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
s separately, and warn against conflating disparate laws into a collective term.
In 2004 the WIPO was criticized in The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development - not as an end in itself".
Overview
In common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions, this was historically done to grant a boon to a king's favorite in the form of letters patent
Letters patent
Letters patent are a type of legal instrument in the form of a published written order issued by a monarch or president, generally granting an office, right, monopoly, title, or status to a person or corporation...
(with some positive advantages to the public, since often these grants were prerequisites before a merchant would undertake production). Jurisdictions with written constitutions generally vest the government with power to grant such monopolies or otherwise provide for the protection of intangible property. For example, Article I, Section 8, Clause 8 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
accords Congress the power "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."
The use of the term "intellectual property" is often predicated on considerations such as the "free rider problem
Free rider problem
In economics, collective bargaining, psychology, and political science, a free rider is someone who consumes a resource without paying for it, or pays less than the full cost. The free rider problem is the question of how to limit free riding...
" or rationalized by problematizing the fact that owners of computers have the ability to produce and distribute perfect copies of digital works. Proponents of the term tend to address exclusive intellectual property rights policy by valorizing the incentives afforded to authors and inventors in granting them a right to exact a fee from those who wish to manufacture their inventions or publish their expressive works. The analysis associated with the term tend to overlook or even to attempt to defeat the fact that published information is intrinsically free and that in fact this is the whole point of such exclusive rights—to publish, to provide information to the public.
By an economic analysis, the incentives granted for patent rights have sometimes served the public benefit purpose (and promoted innovation) by ensuring that someone who devoted, say, ten years of penury while struggling to develop vulcanized rubber or a workable steamship, could recoup his investment of time and energy. Using monopoly power, the inventor could exact a fee from those who wanted to make copies of his invention. Set it too high, and others would simply try to make a competing invention, but set it low enough and one could make a good living from the fees.
In latter years, the public benefit idea has been downplayed in favor of the idea that the primary purpose of exclusive rights is to benefit the rightsholder, even to the detriment of society at large; and this development has attracted some opponents (Lawrence Lessig
Lawrence Lessig
Lawrence "Larry" Lessig is an American academic and political activist. He is best known as a proponent of reduced legal restrictions on copyright, trademark, and radio frequency spectrum, particularly in technology applications, and he has called for state-based activism to promote substantive...
, James Boyle
James Boyle
James Boyle is a Scottish legal academic who is currently the William Neal Reynolds Professor of Law and co-founder of the Center for the Study of the Public Domain at Duke University School of Law in Durham, North Carolina....
, William Patry). The formulation in the US Constitution (noted above) is specifically about public benefit.
Intellectual property rights have limitations, including term limits and other considerations (such as intersections with fundamental rights and the codified or statutory provisions for fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
for copyright works). Some analogize these considerations to public easement
Easement
An easement is a certain right to use the real property of another without possessing it.Easements are helpful for providing pathways across two or more pieces of property or allowing an individual to fish in a privately owned pond...
s, since they grant the public certain rights which are considered essential. Different countries may have subtle or dramatic differences in the scope or protection and permitted uses of different types of intellectual property. A fair use in one jurisdiction can easily be an infringing use elsewhere.
Authors and inventors exercise specific rights, and the "property" referred to in "intellectual property" is the rights, not the intellectual work. A patent can be bought and sold, but the invention that it covers is not owned at all. This is one of many reasons that some believe the term intellectual property to be misleading. Using the term "intellectual monopoly" instead implies that so-called "intellectual property" is actually a government-granted monopoly on certain types of action. Others object to this usage, because this still encourages a natural rights
Natural rights
Natural and legal rights are two types of rights theoretically distinct according to philosophers and political scientists. Natural rights are rights not contingent upon the laws, customs, or beliefs of any particular culture or government, and therefore universal and inalienable...
notion rather than a recognition that the rights are purely statutory, and it only characterizes the "property" rather than eliminates the property presupposition. Another approach is simply to avoid a generic term, because of differences in the nature of copyright, patent and trademark law, and try to be specific about which they are talking about, or the term "exclusive rights", which reflects the U.S. Constitutional language.
Controversies
The basic public policyPublic policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
rationale for intellectual property laws is that they, in some way, provide rights to the inventor or author. The rationale for patent law is that it grants the right to exclude others from making, using, offering for sale, selling, or importing the invention in(to) the country where it was patented. The public policy rationale for trademark rights are that they may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. The public policy rationale for copyright law is that it is a form of protection provided to the authors of "original works of authorship" including literary, dramatic, musical, artistic, and certain other intellectual works, both published and unpublished.
Many people believe that intellectual property provides a temporary monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
that protects the use or exploitation of that good, supported by legal enforcement mechanisms. The United States Supreme Court frequently refers to a patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
as providing a "limited monopoly." This is not, however, appropriate usage of the term monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
in the economic sense. In fact, intellectual property protection cannot properly be thought of as providing an economic monopoly, at least in part, because a monopoly can only exist in the presence of a market and the ability of an actor to manipulate the market to a point where higher than competitive prices are able to be maintained, which is something that is rarely achievable by an owner of intellectual property.
There are also more specialized varieties of sui generis
Sui generis
Sui generis is a Latin expression, literally meaning of its own kind/genus or unique in its characteristics. The expression is often used in analytic philosophy to indicate an idea, an entity, or a reality which cannot be included in a wider concept....
exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act
Integrated Circuit Topography Act
The Integrated Circuit Topography Act is legislation passed by the Parliament of Canada in 1990 that regulates the intellectual property of integrated circuit topographies. It came into force in 1993...
in Canadian law, and in European Union law
European Union law
European Union law is a body of treaties and legislation, such as Regulations and Directives, which have direct effect or indirect effect on the laws of European Union member states. The three sources of European Union law are primary law, secondary law and supplementary law...
by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights
Plant breeders' rights
Plant breeders' rights , also known as plant variety rights , are rights granted to the breeder of a new variety of plant that give him exclusive control over the propagating material and harvested material of a new variety for a number of years.With these rights, the breeder can choose...
, plant variety rights, industrial design rights
Industrial design rights
An industrial design right is an intellectual property right that protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three...
, supplementary protection certificate
Supplementary protection certificate
In European Union member countries, a supplementary protection certificate is a sui generis, extension of a patent under a specific, different, set of right. This type of right is available for medicinal products, such as drugs, and plant protection products, such as insecticides, and herbicides...
s for pharmaceutical products and database rights
Database rights
In European Union law, database rights are specifically coded laws on the copying and dissemination of information in computer databases...
(in European law).
Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
. Many countries' legal systems afford compulsory license
Compulsory license
A compulsory license, also known as statutory license or mandatory collective management, provides that the owner of a patent or copyright licenses the use of their rights against payment either set by law or determined through some form of arbitration.- Copyright law :In a number of countries...
s for particular activities, especially in the area of patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
law.
Most exclusive rights are awarded by a government for a limited period of time. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system. "Intellectual property" law creates transaction costs that could in some circumstances outweigh these gains. Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss
Deadweight loss
In economics, a deadweight loss is a loss of economic efficiency that can occur when equilibrium for a good or service is not Pareto optimal...
into the economy, and encourages rent seeking
Rent seeking
In economics, rent-seeking is an attempt to derive economic rent by manipulating the social or political environment in which economic activities occur, rather than by adding value...
behavior.
What the patent or copyright protects is not the physical object as such, but the idea which it embodies. By forbidding an unauthorized reproduction of the object, the law declares, in effect, that the physical labor of copying is not the source of the object's value, that that value is created by the originator of the idea and may not be used without his consent. Ayn Rand
Ayn Rand
Ayn Rand was a Russian-American novelist, philosopher, playwright, and screenwriter. She is known for her two best-selling novels The Fountainhead and Atlas Shrugged and for developing a philosophical system she called Objectivism....
, founder of Objectivism
Objectivism (Ayn Rand)
Objectivism is a philosophy created by the Russian-American philosopher and novelist Ayn Rand . Objectivism holds that reality exists independent of consciousness, that human beings have direct contact with reality through sense perception, that one can attain objective knowledge from perception...
, supported copyrights and patents, noting in Capitalism: The Unknown Ideal
Capitalism: the Unknown Ideal
Capitalism: The Unknown Ideal is a collection of essays, mostly by Ayn Rand, with additional essays by her associates Nathaniel Branden, Alan Greenspan and Robert Hessen. The book focuses on the moral nature of laissez-faire capitalism and private property...
:
Although she argued that the term should be limited:
Expansion in nature and scope of intellectual property laws
In recent times there has been a general expansion in intellectual property laws. This can be seen in the extension of laws to new types of subject matter such as databases, in the regulation of new categories of activity in respect of subject matter already protected, in the increase of terms of protection, in the removal of restrictions and limitations on exclusive rights, and in an expansion of the definition of "author" to include corporations as the legitimate creators and owners of works. The concept of work for hireWork for hire
A work made for hire is an exception to the general rule that the person who actually creates a work is the legally recognized author of that work...
has also had the effect of treating a corporation or business owner as the legal author of works created by employees.
The American film industry helped to change the social construct of intellectual property by giving rise to a shrewd and well-funded trade organization, the Motion Picture Association of America
Motion Picture Association of America
The Motion Picture Association of America, Inc. , originally the Motion Picture Producers and Distributors of America , was founded in 1922 and is designed to advance the business interests of its members...
. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA consistently advocated strong protection of intellectual-property rights. In framing its presentations, the association has capitalized on lawmakers' receptivity to labor-desert theory - that is that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. This strategy has been highly effective; with remarkable frequency, the positions the association has supported have prevailed. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.
The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe, such that it is unclear when subsisting copyright protection will eventually expire.
The nature and scope of what constitutes "intellectual property" has also expanded. In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights
Agreement on Trade-Related Aspects of Intellectual Property Rights
The Agreement on Trade Related Aspects of Intellectual Property Rights is an international agreement administered by the World Trade Organization that sets down minimum standards for many forms of intellectual property regulation as applied to nationals of other WTO Members...
. Pursuant to TRIPs, any sign
Sign (semiotics)
A sign is understood as a discrete unit of meaning in semiotics. It is defined as "something that stands for something, to someone in some capacity" It includes words, images, gestures, scents, tastes, textures, sounds – essentially all of the ways in which information can be...
which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark. Under this definition, trademarks such as Microsoft
Microsoft
Microsoft Corporation is an American public multinational corporation headquartered in Redmond, Washington, USA that develops, manufactures, licenses, and supports a wide range of products and services predominantly related to computing through its various product divisions...
's slogan "Where do you want to go today?
Where do you want to go today?
“Where do you want to go today?” was the title of Microsoft’s first global image advertising campaign. The broadcast, print and outdoor advertising campaign was launched in November 1994 through the advertising agency Wieden+Kennedy, the firm best known for its work on behalf of Nike, Inc....
" are generally considered registrable. Furthermore, as the essential function of a trademark is to exclusively identify the commercial origin of products or services, any sign which fulfills this purpose may be registrable as a trademark. However, as this concept converges with the increasing use of non-conventional trademark
Non-conventional trademark
A non-conventional trademark, also known as a nontraditional trademark, is any new type of trademark which does not belong to a pre-existing, conventional category of trade mark, and which is often difficult to register, but which may nevertheless fulfill the essential trademark function of...
s in the marketplace
Marketplace
A marketplace is the space, actual, virtual or metaphorical, in which a market operates. The term is also used in a trademark law context to denote the actual consumer environment, ie. the 'real world' in which products and services are provided and consumed.-Marketplaces and street markets:A...
, harmonisation may not amount to a fundamental expansion of the trademark concept.
In the context of patents, the grant of patents in some jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s over certain life forms, software
Computer software
Computer software, or just software, is a collection of computer programs and related data that provide the instructions for telling a computer what to do and how to do it....
algorithms, and business models has led to ongoing controversy over the appropriate scope of patentable subject matter.
Some consider that the expansion of intellectual property laws upsets the balance between encouraging and facilitating creativity and innovation, and the dissemination of new ideas and creations into the public domain
Public domain
Works are in the public domain if the intellectual property rights have expired, if the intellectual property rights are forfeited, or if they are not covered by intellectual property rights at all...
for the common good
Common good
The common good is a term that can refer to several different concepts. In the popular meaning, the common good describes a specific "good" that is shared and beneficial for all members of a given community...
. They consider that as most new ideas are simply derived from other ideas, intellectual property laws tend to reduce the overall level of creative and scientific advancement in society. They argue that innovation and competition is in effect stifled by expanding IP laws, as litigious IP rights holders aggressively or frivolously seek to protect their portfolios. Peter Drahos
Peter Drahos
Professor Peter Drahos is an Australian academic and researcher specializing in the areas of intellectual property and global business regulation amongst others. He is the Director of the Centre for Governance of Knowledge and Development and the Head of Program of the Regulatory Institutions...
notes that "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."
Opposition to expansion of intellectual property laws is strongly supported by the general economic arguments against monopolies. Others, e.g. Federal Judge and prolific legal scholar Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
and Economist William Landes
William Landes
William M. Landes is an economist who has written widely about the economic analysis of law. He is a fellow of the American Academy of Arts and Sciences, which cited him for his pioneering work in the field...
in the co-authored, The Economic Structure of Intellectual Property Law (Harvard Univ. Press 2003), argue that artists can get still ideas from copyrighted works as long as they don't plagiarise - that copyright only protects the expression of ideas and not the ideas themselves.
The electronic age has seen an increase in the attempt to use software-based digital rights management
Digital rights management
Digital rights management is a class of access control technologies that are used by hardware manufacturers, publishers, copyright holders and individuals with the intent to limit the use of digital content and devices after sale. DRM is any technology that inhibits uses of digital content that...
tools to restrict the copying and use of digitally based works. This can have the effect of limiting fair use
Fair use
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. In United States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders...
provisions of copyright law and even make the exhaustion of exclusive distribution rights after the first sale
First-sale doctrine
The first-sale doctrine is a limitation on copyright that was recognized by the Supreme Court of the United States in 1908 and subsequently codified in the Copyright Act of 1976,...
of a product moot. This would allow, in essence, the creation of a book which would disintegrate after one reading. As individuals have proven adept at circumventing such measures in the past, many copyright holders have also successfully lobbied for laws such as the Digital Millennium Copyright Act
Digital Millennium Copyright Act
The Digital Millennium Copyright Act is a United States copyright law that implements two 1996 treaties of the World Intellectual Property Organization . It criminalizes production and dissemination of technology, devices, or services intended to circumvent measures that control access to...
, which uses criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC).
At the same time, the growth of the Internet
Internet
The Internet is a global system of interconnected computer networks that use the standard Internet protocol suite to serve billions of users worldwide...
, and particularly distributed search engines like Kazaa
Kazaa
Kazaa Media Desktop started as a peer-to-peer file sharing application using the FastTrack protocol licensed by Joltid Ltd. and operated as Kazaa by Sharman Networks...
and Gnutella
Gnutella
Gnutella is a large peer-to-peer network which, at the time of its creation, was the first decentralized peer-to-peer network of its kind, leading to other, later networks adopting the model...
, represents a challenge for exclusive rights policy. The Recording Industry Association of America
Recording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
, in particular, has been on the front lines of the fight against what it terms "piracy
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster
Napster
Napster is an online music store and a Best Buy company. It was originally founded as a pioneering peer-to-peer file sharing Internet service that emphasized sharing audio files that were typically digitally encoded music as MP3 format files...
, and some people have been prosecuted for sharing files in violation of copyright. However, the increasingly decentralized nature of such networks makes legal action against distributed search engines more problematic.
Economic view
Exclusive rightExclusive right
In Anglo-Saxon law, an exclusive right is a de facto, non-tangible prerogative existing in law to perform an action or acquire a benefit and to permit or deny others the right to perform the same action or to acquire the same benefit. A "prerogative" is in effect an exclusive right...
s such as copyrights and patents secure their holder an exclusive right to sell, or license rights. As such, the holder is the only seller in the market for that particular item, and the holder is often described as having a monopoly
Monopoly
A monopoly exists when a specific person or enterprise is the only supplier of a particular commodity...
for this reason.
However, it may be the case that there are other items of "intellectual property" that are close substitutes. For example, the holder of publishing rights for a book may be competing with various other authors to get a book published. This is one reason to prefer the term exclusive rights over monopoly rights. Of course, there may not be close substitutes in particular cases (for instance, a patent on the only known drug to treat a particular illness), making the term monopoly rights more appropriate.
The case for "intellectual property" in economic theory notes certain substantial differences from the case for tangible property. Consumption of tangible property is rivalrous
Rivalry (economics)
In economics, rivalry is a characteristic of a good. A good can be placed along a continuum ranging from rivalrous to non-rival. The same characteristic is sometimes referred to as subtractable or non-subtractable . A rival good is a good whose consumption by one consumer prevents simultaneous...
. For example, once one person eats an apple, no one else can eat it; if one person uses a plot of land on which to build a home, that plot is unavailable for use by others. Without the right to exclude others from tangible resources, a tragedy of the commons
Tragedy of the commons
The tragedy of the commons is a dilemma arising from the situation in which multiple individuals, acting independently and rationally consulting their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyone's long-term interest for this...
can result.
The subjects of intellectual property do not share this feature of rivalness. For example, an indefinite number of copies can be made of a book without interfering with the use of the book by owners of other copies. When combined with a lack of exclusive intellectual property rights, this nonrivalrousness and nonexcludability combine to make them public good
Public good
In economics, a public good is a good that is non-rival and non-excludable. Non-rivalry means that consumption of the good by one individual does not reduce availability of the good for consumption by others; and non-excludability means that no one can be effectively excluded from using the good...
s and susceptible to the free rider problem
Free rider problem
In economics, collective bargaining, psychology, and political science, a free rider is someone who consumes a resource without paying for it, or pays less than the full cost. The free rider problem is the question of how to limit free riding...
. A rationale for "intellectual property" therefore rests on incentive effects to overcome the "free rider problem". This case asserts that without a subsidy that is afforded by exclusive rights, there is no direct financial incentive to create new inventions or works of authorship.
A more recent notion, proposing to expand the scope of exclusive rights to include databases, has been introduced by the EU in 1996. This is the idea of protecting the information contained in a database against re-utilisation and extraction of substantial parts. This would be an additional right predicated on a substantial investment, that would exist alongside the copyright in the database structure. This notion was opposed by the United States Supreme Court in 1991 in the Feist Publications, Inc., v. Rural Telephone Service Co. finding, which said that exclusive rights cannot cover the factual elements of any copyrighted work, that copyright does not derive from the effort expended in the production of the work, and that in the case of a collection of information, only the originality that may be found in the selection and arrangement of the information is governed by copyright. This case holds that the purpose of exclusive rights policy is to provide information to the public, and this consideration takes priority over concerns such as investment. A study has found that the introduction of exclusive rights to databases in the EU did not do any good to the economy.
The direct incentive beneficiaries of exclusive rights have an interest in expanding their rights and benefits: this is known in economic terms as rent-seeking, and is generally considered a bad thing by economists. Many beneficiaries pool their resources to form organizations that attempt this. Such examples include the Business Software Alliance
Business Software Alliance
The Business Software Alliance is a trade group established in 1988 and representing a number of the world's largest software makers and is a member of the International Intellectual Property Alliance...
(BSA), which purports to represent the interests of the commercial software industry or the Recording Industry Association of America
Recording Industry Association of America
The Recording Industry Association of America is a trade organization that represents the recording industry distributors in the United States...
(RIAA), which represents the interests of the commercial music publishing industry. As policy expands in accordance with the notion of "intellectual property", in the interests of those who benefit directly from its economic incentives, "intellectual property" tends to reduce the rights of its primary beneficiaries, the general public.
Under the notion of "intellectual property" the public is increasingly prevented by law from benefiting from the use of published information without complying with the conditions set by the rightsholder. The cost for this to the public is not easy to quantify. The cost is distributed widely and unequally based on the need for the product. Ironically the direct incentive beneficiary organizations are a good source for such data. The BSA reports a study that claims "while over $100 billion in software was installed on computers worldwide in 2006, only $65 billion was legally purchased". The BSA says "software pirates" avoided a cost of over $35 billion while the rest that obey the policy and do not purchase or make use of the work bear a real and substantial opportunity cost
Opportunity cost
Opportunity cost is the cost of any activity measured in terms of the value of the best alternative that is not chosen . It is the sacrifice related to the second best choice available to someone, or group, who has picked among several mutually exclusive choices. The opportunity cost is also the...
that is yet uncounted.
It is important to note that there are many other functioning, alternative economic models to the IP model in use, including the service model, the broadcast model, the advertising model, and the tariff model. As pointed out by Ram Samudrala, none of the alternative models abridge the freedom of copying, use, distribution, and modification of published information, but yet compensate and attribute authors. Ram Samudrala also emphasizes that the economic situation when copying intellectual property is unrestricted is analogous to a situation where exists a product X whose cost is $x, and a product another Y (very similar or identical to X) whose cost is $y, where $y << $x ($y is much less than $x). These situations occur frequently in the marketplace, and people marketing X routinely triumph (economically) over people marketing Y.
The term "intellectual property"
Real property
In English Common Law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it made by human efforts: any buildings, machinery, wells, dams, ponds, mines, canals, roads, various property rights, and so forth...
. The inclusion of the word property in the term can be seen as favoring the position of proponents of the expansion of exclusive rights in intellectual products, by helping them draw on concepts associated with those older forms of property in support of their argument for removing limitations on rights when those limitations would be generally seen as inappropriate if applied to physical goods. For example, most nations grant copyrights for only limited terms; all limit the terms of patents. Additionally, the term is sometimes misunderstood to imply ownership of the copies themselves, or even the information contained in those copies. By contrast, physical property laws rarely restrict the sale or modification of physical copies of a work (something that many copyright laws do restrict).
A common argument against the term intellectual property is that information is fundamentally different from physical property in that there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella
Stephan Kinsella
frame|right|Stephan KinsellaNorman Stephan Kinsella is an American intellectual property lawyer and libertarian legal theorist. His electronically published works are primarily published on his blog and websites associated with the Ludwig von Mises Institute and anarcho-capitalist...
, in his Journal of Libertarian Studies article "Against Intellectual Property", details his objection to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas. Other libertarians, such as Shaun Connell of the Rebirth of Freedom Foundation, argue that intellectual property doesn't exist on any level, and that no person has a "right" to all of the rewards of a concept, whether the person created it or not. Thus there is no direct analogue to "theft"; the closest analogue is to copy or use the information without permission, which does not affect the original possession (see the tragedy of the commons
Tragedy of the commons
The tragedy of the commons is a dilemma arising from the situation in which multiple individuals, acting independently and rationally consulting their own self-interest, will ultimately deplete a shared limited resource, even when it is clear that it is not in anyone's long-term interest for this...
).
Another, more specific objection to the term, held by Richard Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
, is that the term is confusing. Stallman argues that the term implies a non-existent similarity between copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
s, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s, trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
s, and other forms of exclusive rights, which makes clear thinking and discussion about various forms difficult. For example, those that pertain to intellectual content (copyrights and patents) have limited terms, hence differ from conventional property, whereas trademarks, which have unlimited terms, are merely signs and lack intellectual content. Furthermore, most legal systems, including that of the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, hold that exclusive rights are a government grant, rather than a fundamental right held by citizens.
Though it is convenient for direct incentive beneficiaries to regard exclusive rights as akin to "property", items covered by exclusive rights are, by definition, not physical objects "ownable" in the traditional sense.
Law treats these rights differently than those involving physical property. To give three examples from US law, copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
is not punishable by laws against theft
Theft
In common usage, theft is the illegal taking of another person's property without that person's permission or consent. The word is also used as an informal shorthand term for some crimes against property, such as burglary, embezzlement, larceny, looting, robbery, shoplifting and fraud...
or trespass
Trespass
Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...
, but rather by an entirely different set of laws with different penalties. Patent infringement
Patent infringement
Patent infringement is the commission of a prohibited act with respect to a patented invention without permission from the patent holder. Permission may typically be granted in the form of a license. The definition of patent infringement may vary by jurisdiction, but it typically includes using or...
is not a criminal offense although it may subject the infringer to civil liability. Willfully possessing stolen physical goods is a criminal offense while mere possessing of goods which infringe on copyright is not. Furthermore, in the United States physical property laws are generally part of state law, while copyright law is primarily federal.
Likewise in other areas the term "property" is applied to legal rights and remedies of analogous kinds. For example, in some jurisdictions a lease of land (e.g. a flat or apartment) is regarded as intangible property in the same way that copyright is. In these cases too the law accepts that the property cannot be stolen — if someone moves into a flat and prevents the original residents from living there they are not regarded as 'thieves of the lease' but as 'squatters' and the law provides different remedies. Identity theft
Identity theft
Identity theft is a form of stealing another person's identity in which someone pretends to be someone else by assuming that person's identity, typically in order to access resources or obtain credit and other benefits in that person's name...
is another example of the adaptation of physical property laws to intangible items, though that term itself is seen as problematic by some. These examples, however, address the use of the term "property" in a technical legal context, not the meaning of the term as understood in public discourse.
Alternative terms
In civil lawCivil law (legal system)
Civil law is a legal system inspired by Roman law and whose primary feature is that laws are codified into collections, as compared to common law systems that gives great precedential weight to common law on the principle that it is unfair to treat similar facts differently on different...
jurisdictions, intellectual property has often been referred to as intellectual rights
Intellectual rights
Intellectual rights is a term sometimes used to refer to the legal protection afforded to owners of intellectual capital...
, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.
Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman
Richard Stallman
Richard Matthew Stallman , often shortened to rms,"'Richard Stallman' is just my mundane name; you can call me 'rms'"|last= Stallman|first= Richard|date= N.D.|work=Richard Stallman's homepage...
— see below. The backronym
Backronym
A backronym or bacronym is a phrase constructed purposely, such that an acronym can be formed to a specific desired word. Backronyms may be invented with serious or humorous intent, or may be a type of false or folk etymology....
s intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.
The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte Andersen and Thomas Alured Faunce
Thomas Alured Faunce
Thomas Alured Faunce is an Associate Professor jointly in the College of Law and Medical School at the Australian National University at Canberra Australia...
.
One issue concerning such proposals is that if intellectual property exists there must be a parallel concept of intellectual capital
Intellectual capital
The value of an enterprise is made of physical assets, various financial assets and, finally, intangible assets, i.e., intellectual capital . The term intellectual capital conventionally refers to the difference in value between tangible assets and market value. ....
— capital
Capital (economics)
In economics, capital, capital goods, or real capital refers to already-produced durable goods used in production of goods or services. The capital goods are not significantly consumed, though they may depreciate in the production process...
being the property that permits more property to be created. This, and the related term instructional capital
Instructional capital
Instructional capital is a term used in educational administration after the 1960s, to reflect capital resulting from investment in producing learning materials....
that applies to the proper subset of patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
s and non-fiction copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
, are controversial notions that economists have no clear agreement on, so one refers to the "intellectual capital debate" rather than thinking of it as an actual capital asset
Capital asset
The term capital asset has three unrelated technical definitions, and is also used in a variety of non-technical ways.*In financial economics, it refers to any asset used to make money, as opposed to assets used for personal enjoyment or consumption...
. See more in the "Economic view" section below.
The fact that the three most common forms of intellectual property law concern different subject matter with different histories and purposes — copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
concerns (original) “works of authorship” such as literature and art, patent
Patent
A patent is a form of intellectual property. It consists of a set of exclusive rights granted by a sovereign state to an inventor or their assignee for a limited period of time in exchange for the public disclosure of an invention....
concerns new and useful inventions, and trademark
Trademark
A trademark, trade mark, or trade-mark is a distinctive sign or indicator used by an individual, business organization, or other legal entity to identify that the products or services to consumers with which the trademark appears originate from a unique source, and to distinguish its products or...
s concerns signs which uniquely identify the commercial origin of products or services — is seen by some as countering what they consider to be the dogma of the United Nations
United Nations
The United Nations is an international organization whose stated aims are facilitating cooperation in international law, international security, economic development, social progress, human rights, and achievement of world peace...
' World Intellectual Property Organisation on intellectual property as the "creations of the mind: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce". These critics see this assertion as propaganda
Propaganda
Propaganda is a form of communication that is aimed at influencing the attitude of a community toward some cause or position so as to benefit oneself or one's group....
for a "property view", and suggest alternative terms such as individual capital
Individual capital
Individual capital, also known as human capital, comprises inalienable or personal traits of persons, tied to their bodies and available only through their own free will, such as skill, creativity, enterprise, courage, capacity for moral example, non-communicable wisdom, invention or empathy,...
, instructional capital
Instructional capital
Instructional capital is a term used in educational administration after the 1960s, to reflect capital resulting from investment in producing learning materials....
and social capital
Social capital
Social capital is a sociological concept, which refers to connections within and between social networks. The concept of social capital highlights the value of social relations and the role of cooperation and confidence to get collective or economic results. The term social capital is frequently...
over the term "intellectual capital
Intellectual capital
The value of an enterprise is made of physical assets, various financial assets and, finally, intangible assets, i.e., intellectual capital . The term intellectual capital conventionally refers to the difference in value between tangible assets and market value. ....
", which has an ambiguous status, even among believers in neoclassical economics
Neoclassical economics
Neoclassical economics is a term variously used for approaches to economics focusing on the determination of prices, outputs, and income distributions in markets through supply and demand, often mediated through a hypothesized maximization of utility by income-constrained individuals and of profits...
. Indeed, recent historical and econometric research has begun to "challenge the positive description of previous models and the normative conclusion that monopoly through copyright and patent is socially beneficial".
See also
- Anti-copyrightAnti-copyrightAnti-copyright refers to the complete or partial opposition to prevalent copyright laws. Copyright is known as the owner's right for copies to be only made by the owner or with his/her authorization in form of a license....
- Libertarianism and intellectual property
- Societal views on patents
- History of copyright lawHistory of copyright lawThe history of copyright law starts with early privileges and monopolies granted to printers of books. The British Statute of Anne 1709, full title "An Act for the Encouragement of Learning, by vesting the Copies of Printed Books in the Authors or purchasers of such Copies, during the Times therein...
- History of patent lawHistory of patent lawThe history of patents and patent laws is generally considered to have started in Italy with a Venetian Statute of 1474 which was issued by the Republic of Venice. They issued a decree by which new and inventive devices, once they had been put into practice, had to be communicated to the Republic...
Further reading
- Did You Say "Intellectual Property"? It's a Seductive Mirage (gnu.org)
- A primer on the ethics of "intellectual property" (ram.org)
- Against Intellectual Monopoly (Michele Boldrin and David K. Levine)
- Against Intellectual Property (Stephen Kinsella, mises.org)