Log in

No account? Create an account

January 2018



Powered by LiveJournal.com

patent, copyright, and trademark restrictions. CED Policy Statement

Report Raises Questions About Fighting Online Piracy
By JOHN SCHWARTZ, The New York Times, Published: March 1, 2004

"Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property."
A new CED policy statement is now available. The statement includes an overview of copyright law and business innovation, as well as recommendations for overcoming the challenges inherent in digital media. Developing and testing new business models is a central recommendation set forth by the CED statement. The Digital Connections Council, chaired by CED Trustee Paul M. Horn, IBM Senior Vice President of Research, created "Promoting Innovation and Economic Growth: The Special Problem of Digital Intellectual Property."

The Committee for Economic Development (CED) is an independent, nonpartisan organization of business and education leaders dedicated to policy research on the major economic and social issues of our time and the implementation of its recommendations by the public and private sectors.

Some Confusing or Loaded Words and Phrases that are Worth Avoiding

"There are a number of words and phrases which we recommend avoiding, or avoiding in certain contexts and usages. The reason is either that they are ambiguous, or that they imply an opinion that we hope you may not entirely agree with."

"Intellectual property"
Publishers and lawyers like to describe copyright as "intellectual property" ---a term that also includes patents, trademarks, and other more obscure areas of law. These laws have so little in common, and differ so much, that it is ill-advised to generalize about them. It is best to talk specifically about "copyright," or about "patents," or about "trademarks."

The term "intellectual property" carries a hidden assumption---that the way to think about all these disparate issues is based on an analogy with physical objects, and our ideas of physical property.

When it comes to copying, this analogy disregards the crucial difference between material objects and information: information can be copied and shared almost effortlessly, while material objects can't be. Basing your thinking on this analogy is tantamount to ignoring that difference. (Even the US legal system does not entirely accept the analogy, since it does not treat copyrights or patents like physical object property rights.)

If you don't want to limit yourself to this way of thinking, it is best to avoid using the term "intellectual property" in your words and thoughts.

"Intellectual property" is also an unwise generalization. The term is a catch-all that lumps together several disparate legal systems, including copyright, patents, trademarks, and others, which have very little in common. These systems of law originated separately, cover different activities, operate in different ways, and raise different public policy issues. If you learn a fact about copyright law, you would do well to assume it does not apply to patent law, since that is almost always so.

Since these laws are so different, the term "intellectual property" is an invitation to simplistic thinking. It leads people to focus on the meager common aspect of these disparate laws, which is that they establish monopolies that can be bought and sold, and ignore their substance --the different restrictions they place on the public and the different consequences that result. At that broad level, you can't even see the specific public policy issues raised by copyright law, or the different issues raised by patent law, or any of the others. Thus, any opinion about "intellectual property" is almost surely foolish.

If you want to think clearly about the issues raised by patents, copyrights and trademarks, or even learn what these laws require, the first step is to forget that you ever heard the term "intellectual property" and treat them as unrelated subjects. To give clear information and encourage clear thinking, never speak or write about "intellectual property"; instead, present the topic as copyright, patents, or whichever specific law you are discussing.

According to Professor Mark Lemley of the University of Texas Law School, the widespread use of term "intellectual property" is a recent fad, arising from the 1967 founding of the World Intellectual Property Organization. (See footnote 123 in his March 1997 book review, in the Texas Law Review, of Romantic Authorship and the Rhetoric of Property by James Boyle.) WIPO represents the interests of the holders of copyrights, patents and trademarks, and lobbies governments to increase their power. One WIPO treaty follows the lines of the Digital Millennium Copyright Act, which has been used to censor useful free software packages in the US. See http://www.wipout.net/ for a counter-WIPO campaign.

The hypocrisy of calling these powers "rights" is starting to make WIPO embarassed.