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<title>Did You Say “Intellectual Property”? It's a Seductive Mirage |
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- GNU Project - Free Software Foundation</title> |
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<div class="article reduced-width"> |
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<h2>Did You Say “Intellectual Property”? It's a Seductive Mirage</h2> |
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|
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<address class="byline">by |
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<a href="https://www.stallman.org/">Richard Stallman</a></address> |
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|
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<div class="introduction"> |
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<p> |
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It has become fashionable to toss copyright, patents, and |
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trademarks—three separate and different entities involving three |
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separate and different sets of laws—plus a dozen other laws into |
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one pot and call it “intellectual property.” The |
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distorting and confusing term did not become common by accident. |
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Companies that gain from the confusion promoted it. The clearest way |
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out of the confusion is to reject the term entirely. |
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</p> |
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</div> |
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|
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<p> |
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According to Professor Mark Lemley, now of the Stanford Law School, |
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the widespread use of the term “intellectual property” is |
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a fashion that followed the 1967 founding of the World “Intellectual |
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Property” Organization (WIPO), and only became really common in recent |
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years. (WIPO is formally a UN organization, but in fact represents the |
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interests of the holders of copyrights, patents, and trademarks.) Wide use dates from |
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<a href="https://books.google.com/ngrams/graph?content=intellectual+property&year_start=1800&year_end=2008&corpus=15&smoothing=1&share=&direct_url=t1%3B%2Cintellectual%20property%3B%2Cc0">around |
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1990</a>. (<a href="/graphics/seductivemirage.png">Local image copy</a>) |
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</p> |
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|
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<p> |
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The term carries a bias that is not hard to see: it suggests thinking |
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about copyright, patents and trademarks by analogy with property |
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rights for physical objects. (This analogy is at odds with the legal |
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philosophies of copyright law, of patent law, and of trademark law, |
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but only specialists know that.) These laws are in fact not much like |
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physical property law, but use of this term leads legislators to |
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change them to be more so. Since that is the change desired by the |
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companies that exercise copyright, patent and trademark powers, the |
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bias introduced by the term “intellectual property” suits them. |
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</p> |
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|
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<p> |
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The bias is reason enough to reject the term, and people have often |
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asked me to propose some other name for the overall category—or |
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have proposed their own alternatives (often humorous). Suggestions |
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include IMPs, for Imposed Monopoly Privileges, and GOLEMs, for |
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Government-Originated Legally Enforced Monopolies. Some speak of |
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“exclusive rights regimes,” but referring to restrictions |
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as “rights” is doublethink too. |
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</p> |
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|
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<p> |
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Some of these alternative names would be an improvement, but it is a |
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mistake to replace “intellectual property” with any other |
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term. A different name will not address the term's deeper problem: |
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overgeneralization. There is no such unified thing as |
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“intellectual property”—it is a mirage. The only |
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reason people think it makes sense as a coherent category is that |
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widespread use of the term has misled them about the laws in question. |
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</p> |
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|
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<p> |
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The term “intellectual property” is at best a catch-all to |
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lump together disparate laws. Nonlawyers who hear one term applied to |
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these various laws tend to assume they are based on a common |
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principle and function similarly. |
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</p> |
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|
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<p> |
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Nothing could be further from the case. |
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These laws originated separately, evolved differently, cover different |
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activities, have different rules, and raise different public policy issues. |
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</p> |
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|
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<p> |
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For instance, copyright law was designed to promote authorship and |
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art, and covers the details of expression of a work. Patent law was |
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intended to promote the publication of useful ideas, at the price of |
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giving the one who publishes an idea a temporary monopoly over |
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it—a price that may be worth paying in some fields and not in |
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others. |
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</p> |
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|
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<p> |
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Trademark law, by contrast, was not intended to promote any particular |
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way of acting, but simply to enable buyers to know what they are |
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buying. Legislators under the influence of the term “intellectual |
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property,” however, have turned it into a scheme that provides |
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incentives for advertising. And these are just |
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three out of many laws that the term refers to. |
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</p> |
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|
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<p> |
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Since these laws developed independently, they are different in every |
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detail, as well as in their basic purposes and methods. Thus, if you |
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learn some fact about copyright law, you'd be wise to assume that |
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patent law is different. You'll rarely go wrong! |
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</p> |
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|
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<p> |
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In practice, nearly all general statements you encounter that are |
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formulated using “intellectual property” will be false. |
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For instance, you'll see claims that “its” purpose is to |
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“promote innovation,” but that only fits patent law and |
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perhaps plant variety monopolies. Copyright law is not concerned with |
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innovation; a pop song or novel is copyrighted even if there is |
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nothing innovative about it. Trademark law is not concerned with |
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innovation; if I start a tea store and call it “rms tea,” |
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that would be a solid trademark even if I sell the same teas in the |
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same way as everyone else. Trade secret law is not concerned with |
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innovation, except tangentially; my list of tea customers would be a |
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trade secret with nothing to do with innovation.</p> |
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|
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<p> |
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You will also see assertions that “intellectual property” |
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is concerned with “creativity,” but really that only fits |
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copyright law. More than creativity is needed to make a patentable |
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invention. Trademark law and trade secret law have nothing to do with |
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creativity; the name “rms tea” isn't creative at all, and |
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neither is my secret list of tea customers.</p> |
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|
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<p> |
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People often say “intellectual property” when they really |
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mean some larger or smaller set of laws. For instance, rich countries |
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often impose unjust laws on poor countries to squeeze money out of |
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them. Some of these laws are among those called “intellectual |
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property” laws, and others are not; nonetheless, critics of the |
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practice often grab for that label because it has become familiar to |
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them. By using it, they misrepresent the nature of the issue. It |
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would be better to use an accurate term, such as “legislative |
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colonization,” that gets to the heart of the matter. |
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</p> |
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|
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<p> |
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Laymen are not alone in being confused by this term. Even law |
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professors who teach these laws are lured and distracted by the |
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seductiveness of the term “intellectual property,” and |
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make general statements that conflict with facts they know. For |
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example, one professor wrote in 2006: |
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</p> |
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|
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<blockquote><p> |
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Unlike their descendants who now work the floor at WIPO, the framers |
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of the US constitution had a principled, procompetitive attitude to |
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intellectual property. They knew rights might be necessary, |
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but…they tied congress's hands, restricting its power in |
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multiple ways. |
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</p></blockquote> |
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|
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<p> |
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That statement refers to Article 1, Section 8, Clause 8 of the US |
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Constitution, which authorizes copyright law and patent law. That |
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clause, though, has nothing to do with trademark law, trade secret |
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law, or various others. The term “intellectual property” |
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led that professor to make a false generalization. |
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</p> |
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|
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<p> |
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The term “intellectual property” also leads to simplistic |
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thinking. It leads people to focus on the meager commonality in form |
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that these disparate laws have—that they create artificial |
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privileges for certain parties—and to disregard the details |
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which form their substance: the specific restrictions each law places |
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on the public, and the consequences that result. This simplistic focus |
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on the form encourages an “economistic” approach to all |
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these issues. |
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</p> |
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|
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<p> |
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Economics operates here, as it often does, as a vehicle for unexamined |
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assumptions. These include assumptions about values, such as that |
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amount of production matters while freedom and way of life do not, |
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and factual assumptions which are mostly false, such as that |
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copyrights on music supports musicians, or that patents on drugs |
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support life-saving research. |
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</p> |
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|
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<p> |
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Another problem is that, at the broad scale implicit in the term “intellectual |
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property,” the specific issues raised by the various laws become |
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nearly invisible. These issues arise from the specifics of each |
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law—precisely what the term “intellectual property” |
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encourages people to ignore. For instance, one issue relating to |
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copyright law is whether music sharing should be allowed; patent law |
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has nothing to do with this. Patent law raises issues such as whether |
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poor countries should be allowed to produce life-saving drugs and sell |
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them cheaply to save lives; copyright law has nothing to do with such |
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matters. |
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</p> |
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|
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<p> |
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Neither of these issues is solely economic in nature, and their |
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noneconomic aspects are very different; using the shallow economic |
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overgeneralization as the basis for considering them means ignoring the |
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differences. Putting the two laws in the “intellectual |
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property” pot obstructs clear thinking about each one. |
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</p> |
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|
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<p> |
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Thus, any opinions about “the issue of intellectual |
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property” and any generalizations about this supposed category |
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are almost surely foolish. If you think all those laws are one issue, |
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you will tend to choose your opinions from a selection of sweeping |
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overgeneralizations, none of which is any good. |
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</p> |
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|
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<p> |
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Rejection of “intellectual property” is not mere |
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philosophical recreation. The term does real harm. Apple used it |
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to <a href="https://www.theguardian.com/us-news/2017/mar/11/nebraska-farmers-right-to-repair-bill-stalls-apple">warp debate about Nebraska's |
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“right to repair” bill</a>. The bogus concept gave |
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Apple a way to dress up its preference for secrecy, which conflicts |
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with its customers' rights, as a supposed principle that customers |
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and the state must yield to.</p> |
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|
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<p> |
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If you want to think clearly about the issues raised by patents, or |
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copyrights, or trademarks, or various other different laws, the first |
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step is to |
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forget the idea of lumping them together, and treat them as separate |
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topics. The second step is to reject the narrow perspectives and |
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simplistic picture the term “intellectual property” |
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suggests. Consider each of these issues separately, in its fullness, |
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and you have a chance of considering them well. |
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</p> |
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|
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<p>And when it comes to reforming WIPO, here is <a |
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href="https://fsfe.org/activities/wipo/wiwo.en.html">one proposal for |
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changing the name and substance of WIPO</a>. |
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</p> |
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|
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<hr /> |
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|
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<p> |
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See also <a href="/philosophy/komongistan.html">The Curious History of |
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Komongistan (Busting the term “intellectual property”)</a>. |
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</p> |
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|
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<p> |
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Countries in Africa are a lot more similar than these laws, and |
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“Africa” is a coherent geographical concept; nonetheless, |
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<a href="https://www.theguardian.com/world/2014/jan/24/africa-clinton"> |
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talking about “Africa” instead of a specific country |
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causes lots of confusion</a>. |
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</p> |
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|
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<p> |
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<a href="https://torrentfreak.com/language-matters-framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714/"> |
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Rickard Falkvinge supports rejection of this term</a>.</p> |
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|
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<p><a |
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href="http://www.locusmag.com/Perspectives/2016/11/cory-doctorow-sole-and-despotic-dominion/"> |
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Cory Doctorow also condemns</a> the term “intellectual |
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property.”</p> |
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