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Intellectual Property and the Internet/Intellectual property

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Intellectual property, commonly referred to as IP, refers 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 which enumerate and regulate them.[1] Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets, such as musical, literary, and artistic works; discoveries and inventions; and words, phrases, symbols, and designs. Common types of intellectual property rights include copyrights, trademarks, patents, industrial design rights and trade secrets in some jurisdictions. The term intellectual property is used to describe many very different, unrelated legal concepts.

Although many of the legal principles governing intellectual property have evolved over centuries, it was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world.[2] The British Statute of Anne 1710 and the Statute of Monopolies 1623 are now seen as the origins of copyright and patent law respectively.[3]

History edit

Modern usage of the term ""intellectual property" goes back at least as far as 1867 with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation.[4] When the administrative secretariats established by the Paris Convention for the Protection of Industrial Property (1883) and the Berne Convention for the Protection of Literary and Artistic Works (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property. The organisation subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by the Convention Establishing the World Intellectual Property Organization as an agency of the United Nations. According to Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention),[2] and it did not enter popular usage until passage of the Bayh-Dole Act in 1980.[5]

"The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558-1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal [right] obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."[6]

In an 1818 collection of his writings, the French liberal theorist, Benjamin Constant, argued against the recently introduced idea of "property which has been called intellectual."[7] The term intellectual property can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." [8] The statement that "discoveries are...property" goes back earlier still: Section 1 of the French patent law of 1791 states, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."[9]

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.[10]

Objectives edit

Until recently, the purpose of intellectual property law was to give as little protection possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.[2] Currently, particularly in the United States, the objective of intellectual property legislators and those who support its implementation is "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions."[2] This absolute protection or full value view treats intellectual property as another type of 'real' property, typically adopting its law and rhetoric.

Financial incentive edit

These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of and investment in intellectual property, and, in case of patents, pay associated research and development costs.[11] Some commentators, such as David Levine and Michele Boldrin, dispute this justification.[12]

Economic growth edit

The WIPO treaty and several related international agreements are premised on the notion that the protection of intellectual property rights are essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.[13]

The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".[14]

Economists estimate that two-thirds of the value of large businesses in the U.S. can be traced to intangible assets.[15] "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".[16]

A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."[17]

Economists have also shown that IP can be a disincentive to innovation when that innovation is drastic. IP makes excludable Rivalry (economics)|non-rival intellectual products that were previously non-excludable. This creates economic efficiency|economic inefficiency as long as the monopoly is held. A disincentive to direct resources toward innovation can occur when monopoly profits are less than the overall Welfare economics|welfare improvement to society. This situation can be seen as a market failure, and an issue of appropriability.[18]

Morality edit

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".[19] Although the relationship between intellectual property and human rights is a complex one,[20] there are moral arguments for intellectual property.

Various moral justifications for private property can also be used to argue in favor of the morality of intellectual property, such as:

  1. Natural Rights/Justice Argument: this argument is based on Locke’s idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind[21], it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.[22]
  2. Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been said to be attributed to the development of the patent system.[22] By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximize social utility.[23] The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works".[23]
  3. "Personality” Argument: this argument is based on a quote from Hegel: “Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own”.[22] European intellectual property law is shaped by this notion that ideas are an “extension of oneself and of one’s personality”.[22]

Writer Ayn Rand has argued that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.[24]

Criticism edit

The term itself edit

Free Software Foundation founder Richard Stallman argues that, although the term "intellectual property" is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion." He claims that the term "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" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights".[25] Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term.

Lawrence Lessig, along with many other copyleft and free software activists, have criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).[26]

Limitations edit

Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopoly privilege as harming health, preventing progress, and benefiting concentrated interests to the detriment of the masses,[27][28] and argue that the public interest is harmed by ever expansive monopolies in the form of copyright extensions, software patents and business method patents.

The Committee on Economic, Social and Cultural Rights recognizes that "conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights".[29] It argues that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits.[30]

Some libertarianism|libertarian critics of intellectual property have argued that allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Stephan Kinsella uses the following scenario to argue this point:

[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.[31]

Other criticism of intellectual property law concerns the tendency of the protections of intellectual property to expand, both in duration and in scope. The trend has been toward longer copyright protection[32] (raising fears that it may some day be eternal).[26][33][34][35] In addition, the developers and controllers of items of intellectual property have sought to bring more items under the protection. Patents have been granted for living organisms,[36] (and in the US, Plant breeders' rights|certain living organisms have been patentable for over a century)[37] and colors have been trademarked.[38] Because they are systems of government-granted monopolies copyrights, patents, and trademarks are called intellectual monopoly privileges, (IMP) a topic on which several academics, including Birgitte Andersen[39] and Thomas Alured Faunce[40] have written.

Thomas Jefferson once said in a letter to Isaac McPherson on August 13, 1813:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."[41]

In 2005 the Royal Society for the encouragement of Arts, Manufactures & Commerce launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.

Another limitation of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.[42] This definition excludes any works that are the result of community creativity, for example Native American songs and stories; current legislation does not recognize the uniqueness of indigenous cultural 'property' and its ever-changing nature. Simply asking native cultures to 'write down' their cultural artifacts on tangible mediums ignores their necessary orality and enforces a Western bias of the written form as more authoritative.

Ethics edit

The ethical problems brought up by intellectual property rights are most pertinent when it is socially valuable goods like life-saving medicines and genetically modified seeds that are given intellectual property protection. For example, pharmaceutical companies that develop new medicines, apply for intellectual property rights in order to prevent other companies from manufacturing their product without the additional cost of research and development. The application of intellectual property rights allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development.[43] However, this immediately excludes from the market anyone who cannot afford the cost of the product, in this case a life saving drug.

“ The availability problem is a consequence of the fact that the incentivizing mechanism for innovation constituted by IPRs establishes a direct link between the incentive to innovate and the price of the innovative product. Under an IPR driven regime, profits are generated exclusively from sales. This means that the higher a price a product can command on the market, the higher is the incentive to invest resources into the R&D process of it. An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations...[43] ”

Further reading edit

Arai, Hisamitsu. "Intellectual Property Policies for the Twenty-First Century: The Japanese Experience in Wealth Creation", WIPO Publication Number 834 (E). 2000. wipo.int
Branstetter, Lee, Raymond Fishman and C. Fritz Foley. "Do Stronger Intellectual Property Rights Increase International Technology Transfer? Empirical Evidence from US Firm-Level Data". NBER Working Paper 11516. July 2005. weblog.ipcentral.info
Burk, Dan L.; Lemley, Mark A. (2009). The Patent Crisis and How the Courts Can Solve It. University of Chicago Press. ISBN 9780226080611.
Connell, Shaun. "Intellectual Ownership". October 2007. rebithofffreedom.org
Farah, Paolo and Cima, Elena. "China’s Participation in the World Trade Organization: Trade in Goods, Services, Intellectual Property Rights and Transparency Issues" in Aurelio Lopez-Tarruella Martinez (ed.), El comercio con China. Oportunidades empresariales, incertidumbres jurídicas, Tirant lo Blanch, Valencia (Spain) 2010, pp. 85–121. ISBN 978-84-8456-981-7. Available at SSRN.com
Gowers, Andrew. "Gowers Review of Intellectual Property". Her Majesty's Treasury, November 2006. hm-treasury.gov.uk ISBN 0-118-40483-0.
Hahn, Robert W., Intellectual Property Rights in Frontier Industries: Software and Biotechnology, AEI Press, March 2005.
Kinsella, Stephan. "Against Intellectual Property". Journal of Libertarian Studies 15.2 (Spring 2001): 1-53. mises.org
Lai, Edwin. "The Economics of Intellectual Property Protection in the Global Economy". Princeton University. April 2001. dklevine.com
Lee, Richmond. Scope and Interplay of IP Rights Accralaw offices.
Lessig, Lawrence. "Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity". New York: Penguin Press, 2004. free-culture.cc.
Lindberg, Van. Intellectual Property and Open Source: A Practical Guide to Protecting Code. O'Reilly Books, 2008. ISBN 0-596-51796-3 | ISBN 9780596517960
Maskus, Keith E. "Intellectual Property Rights and Economic Development". Case Western Reserve Journal of International Law, Vol. 32, 471. journals/jil/32-3/maskusarticle.pdf law.case.edu
Mazzone, Jason. "Copyfraud". Brooklyn Law School, Legal Studies Paper No. 40. New York University Law Review 81 (2006): 1027. (Abstract.)
Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property: Patents, Trademarks, and Copyright. 3rd ed. New York: West/Wadsworth, 2000. ISBN 0-314-23519-1.
Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550-1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001
Rozanski, Felix. "Developing Countries and Pharmaceutical Intellectual Property Rights: Myths and Reality" stockholm-network.org
Perelman, Michael. Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity. Palgrave Macmillan, 2004.
Rand, Ayn. "Patents and Copyrights" in Ayn Rand, ed. 'Capitalism: The Unknown Ideal,' New York: New American Library, 1966, pp. 126–128
Reisman, George. 'Capitalism: A Complete & Integrated Understanding of the Nature & Value of Human Economic Life,'] Ottawa, Illinois: 1996, pp. 388–389
Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. New York: West/Wadsworth, 2003, ISBN 0-314-06599-7.
Schneider, Patricia H. "International Trade, Economic Growth and Intellectual Property Rights: A Panel Data Study of Developed and Developing Countries". July 2004. mtholyoke.edu
Shapiro, Robert and Nam Pham. "Economic Effects of Intellectual Property-Intensive Manufacturing in the United States". July 2007. the-value-of.ip.org
Vaidhyanathan, Siva. The Anarchist in the Library: How the Clash Between Freedom and Control Is Hacking the Real World and Crashing the System. New York: Basic Books, 2004.

References edit

  1. ↑ Raysman, Richard; Pisacreta, Edward A.; Ostrow, Seth H.; Adler, Kenneth A. (1999). Intellectual Property Licensing: Forms and Analysis. New York, New York: Law Journal Press. ISBN 9781588520869.
  2. ↑ a b c d Lemley, Mark A. (2005). "Property, Intellectual Property, and Free Riding" (PDF). Texas Law Review. 83: 1031–1033. property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations.
  3. ↑ Sherman, Brad; Bently, Lionel (1999). The making of modern intellectual property law: the British experience, 1760-1911. Cambridge University Press. p. 207. ISBN 9780521563635.
  4. ↑ "Article 4 No. 6 of the Constitution of 1867". Hastings Law Journal (in German). 52: 1255. 2001.
  5. ↑ Lemley, Mark A. (2005). "Property, Intellectual Property, and Free Riding". Stanford Lawyer (73): 4–5. Retrieved 2019-11-12. {{cite journal}}: More than one of |at= and |pages= specified (help); Unknown parameter |month= ignored (help)
  6. ↑ Mossoff, A. (2001). "Rethinking the Development of Patents: An Intellectual History, 1550-1800" (PDF). Hastings Law Journal. 52: 1255.
  7. ↑ Constant de Rebecque, Benjamin de (1818). Plancher, P. (ed.). Collection complète des ouvrages publiés sur le gouvernement représentatif et la constitution actuelle de la France, formant une espèce de cours de politique constitutionnelle. p. 296.
  8. ↑ Davoll et al. v. Brown (PDF). 1 Woodb. & M. 53;1 2 Robb, Pat. Cas. 303; 3 West. Law J. 151; Merw. Pat. Inv. 414. at the Wayback Machine (archived March 22, 2015) Retrieved November 23, 2019.
  9. ↑ "A Brief History of the Patent Law of the United States". Legal Education Center. Ladas & Parry LLP. May 7, 2014. Archived from the original on January 26, 2016. Retrieved November 23, 2019.
  10. ↑ Schneider, Israel (1998). "Jewish Law and Copyright". Jewish Law: Examining Halacha, Jewish Issues and Secular Law. Miami: Center for Halacha and American Law, Aleph Institute. p. 1. Archived from the original on March 18, 2006. Retrieved January 17, 2012.
  11. ↑ Schroeder, Doris; Singer, Peter (2009). "Prudential Reasons for IPR Reform: A Report for Innova-P2" (PDF). Melbourne, Australia: Centre for Applied Philosophy and Public Ethics. Archived from the original (PDF) on May 9, 2016. Retrieved November 23, 2019. {{cite web}}: Unknown parameter |month= ignored (help)
  12. ↑ Boldrin, Michele; Levine, David K. (January 2, 2008). Against Intellectual Monopoly. Cambridge, U.K.: Cambridge University Press. doi:10.1017/cbO9780511510854. ISBN 9780521879286. OCLC 232365572. Retrieved January 17, 2012. Archived January 2, 2010 at the Wayback Machine
  13. ↑ http://www.wipo.int/export/sites/www/about-ip/en/iprm/pdf/ch1.pdf p. 3.
  14. ↑ http://web.archive.org/web/20110624131619/http://www.international.gc.ca/trade-agreements-accords-commerciaux/assets/pdfs/acta-crc_apr15-2011_eng.pdf
  15. ↑ Sonecon.com
  16. ↑ Economic Effects of Intellectual Property-Intensive Manufacturing in the United States, Robert Shapiro and Nam Pham, July 2007 (archived on archive.org).
  17. ↑ Measuring the Economic Impact of IP Systems, WIPO, 2007.
  18. ↑ Greenhalgh, C. & Rogers M., (2010). The Nature and Role of Intellectual Property. Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press. (p. 32-34).
  19. ↑ United Nations. "The Universal Declaration of Human Rights". Retrieved October 25, 2011.
  20. ↑ WIPO - The World Intellectual Property Organization. "Human Rights and Intellectual Property: An Overview". Retrieved October 25, 2011.
  21. ↑ Ronald V. Bettig. "Critical Perspectives on the History and Philosophy of Copyright" in Copyrighting Culture: The Political Economy of Intellectual Property, by Ronald V. Bettig. (Boulder, CO: Westview Press, 1996), 19-20
  22. ↑ a b c d De George, Richard T. "14. Intellectual Property Rights". In George G. Brenkert; Tom L. Beauchamp (eds.). The Oxford Handbook of Business Ethics. Vol. 1, 1st ed. Oxford, England: Oxford University Press. pp. 408–439.
  23. ↑ a b Spinello, Richard A. (2007). "Intellectual property rights". Library Hi Tech. 25 (1): 12–22. doi:10.1108/07378130710735821. {{cite journal}}: |access-date= requires |url= (help); Unknown parameter |month= ignored (help)
  24. ↑ Capitalism: The Unknown Ideal, Chapter 11 "Patents and Copyrights" - Ayn Rand
  25. ↑ Richard M. Stallman. "Did You Say "Intellectual Property"? It's a Seductive Mirage". Free Software Foundation, Inc. Retrieved 2008-03-28.
  26. ↑ a b "Against perpetual copyright".
  27. ↑ On patents - Daniel B. Ravicher (August 6, 2008). "Protecting Freedom In The Patent System: The Public Patent Foundation's Mission and Activities".
  28. ↑ Joseph Stiglitz (October 13, 2006). "Authors@Google: Joseph Stiglitz - Making Globalization Work".
  29. ↑ WIPO - World Intellectual Property Organization. "Human Rights and Intellectual Property: An Overview". Retrieved October 25, 2011.
  30. ↑ Chapman, Audrey R. (2002). "The Human Rights Implications of Intellectual Property Protection". Journal of International Economic Law. 5 (4): 861–882. doi:10.1093/jiel/5.4.861. {{cite journal}}: |access-date= requires |url= (help); Unknown parameter |month= ignored (help)
  31. ↑ N. Stephan Kinsella, Against Intellectual property (2008), p. 44.
  32. ↑ E.g., the U.S. Copyright Term Extension Act, Pub.L. 105-298.
  33. ↑ Mark Helprin, Op-ed: A Great Idea Lives Forever. Shouldn't Its Copyright? The New York Times, May 20, 2007.
  34. ↑ Eldred v. Ashcroft Eldred v. Ashcroft, 537 U. S. 186 (2003)
  35. ↑ Mike Masnick (May 21, 2007). "Arguing For Infinite Copyright... Using Copied Ideas And A Near Total Misunderstanding Of Property". techdirt.
  36. ↑ Council for Responsible Genetics, DNA Patents Create Monopolies on Living Organisms. Accessed 2008.12.18.
  37. ↑ Plant Patents USPTO.gov
  38. ↑ For example, AstraZeneca holds a registered trademark to the color purple, as used in pill capsules. AstraZeneca, Nexium: Legal. Accessed 2008.12.18.
  39. ↑ Birgitte Andersen. Intellectual Property Right' Or 'IntellectualMonopoly Privilege': Which One Should PatentAnalysts Focus On? CONFERÊNCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO • NOV. 2003
  40. ↑ Martin G, Sorenson C and Faunce TA. Balancing intellectual monopoly privileges and the need for essential medicines Globalization and Health 2007, 3:4doi:10.1186/1744-8603-3-4. "Balancing the need to protect the intellectual property rights (IPRs) ("which the third author considers are more accurately described as intellectual monopoly privileges (IMPs)) of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today.")
  41. ↑ Thomas Jefferson, Letter to Isaac McPherson (August 13, 1813)
  42. ↑ Philip Bennet, 'Native Americans and Intellectual Property: the Necessity of Implementing Collective Ideals into Current United States Intellectual Property Laws", 2009 [1]
  43. ↑ a b Sonderholm, Jorn (2010). Ethical Issues Surrounding Intellectual Property Rights. Philosophy Compass. pp. 1108–1109.

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