Difference between revisions of "Intellectual property" - New World Encyclopedia

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'''Intellectual property''' ('''IP''') is a category of [[property]] that includes intangible creations of the human [[intellect]]. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are [[copyright]]s, [[patent]]s, [[trademark]]s, and [[trade secret]]s.  
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'''Intellectual property''' ('''IP''') refers to the intangible creations of the human [[intellect]]. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are [[copyright]]s, [[patent]]s, [[trademark]]s, and [[trade secret]]s.  
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The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. The [[Intangible property|intangible]] nature of intellectual property presents difficulties when compared with traditional property like land or goods. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.
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The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods, which benefits society as a whole, or the "public good," while still assigning rights to their creators. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. However, the [[Intangible property|intangible]] nature of intellectual property presents difficulties when compared with traditional property like land or goods. Balancing rights so that they are strong enough to encourage the creation of intellectual goods, but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.
  
 
==Definition==
 
==Definition==
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If one believes that intellectual property is no different from material property, then it follows that the same moral rights that govern material property apply to intellectual property. For example, [[Ayn Rand]] argued 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.<ref>Ayn Rand, ''Capitalism: The Unknown Ideal'' (Signet, 1986, ISBN 978-0451147950).</ref>
 
If one believes that intellectual property is no different from material property, then it follows that the same moral rights that govern material property apply to intellectual property. For example, [[Ayn Rand]] argued 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.<ref>Ayn Rand, ''Capitalism: The Unknown Ideal'' (Signet, 1986, ISBN 978-0451147950).</ref>
  
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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."<ref>[https://www.un.org/en/universal-declaration-human-rights/index.html The Universal Declaration of Human Rights] ''United Nations''. Retrieved January 22, 2021.</ref> Although the relationship between intellectual property and [[human rights]] is a complex one, there are moral arguments for intellectual property.
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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."<ref> The Universal Declaration of Human Rights ''United Nations''.</ref> Although the relationship between intellectual property and [[human rights]] is a complex one, there are moral arguments for intellectual property.
  
 
The arguments that justify intellectual property rights fall into three major categories: Lockeans argue that intellectual property is justified based on deservedness and hard work; Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation; and personality theorists regard intellectual property as an extension of an individual.<ref>[https://plato.stanford.edu/entries/intellectual-property/ Intellectual Property] ''Stanford Encyclopedia of Philosophy'', October 10, 2018. Retrieved January 22, 2021.</ref>
 
The arguments that justify intellectual property rights fall into three major categories: Lockeans argue that intellectual property is justified based on deservedness and hard work; Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation; and personality theorists regard intellectual property as an extension of an individual.<ref>[https://plato.stanford.edu/entries/intellectual-property/ Intellectual Property] ''Stanford Encyclopedia of Philosophy'', October 10, 2018. Retrieved January 22, 2021.</ref>
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==Criticisms==
 
==Criticisms==
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A major issue with regard to intellectual property is the question of whether it can be treated as "property" at all. The words of [[Thomas Jefferson]] written in a letter to Isaac McPherson on August 13, 1813, are pertinent:
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<blockquote>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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.<ref>[https://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html Thomas Jefferson to Isaac McPherson] August 13, 1813. Retrieved January 23, 20201</ref></blockquote>
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Such distinctions between physical (tangible) and intellectual property are undeniable, and recognized by the framers of intellectual property law, whose purpose was to promote advances in science and the arts, while protecting the inventors and creators of their work from piracy. Thus, intellectual property protection includes term limits:
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<blockquote>After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.<ref name=Lessig>Lawrence Lessig, [https://wiki.lessig.org/Against_perpetual_copyright Against perpetual copyright] ''The Lessig Wiki''. Retrieved January 23, 2021.</ref></blockquote>
  
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Term limits notwithstanding, critics continue to reject the implied close connection with tangible property that intellectual property law guarantees. Their primary complaint lies with the term itself.
  
 
===The term "intellectual property"===
 
===The term "intellectual property"===
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Criticism of the term ''intellectual property'' ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like ''property'' and ''rights'' in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.<ref>{{cite web|title=If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?|url=https://www.techdirt.com/articles/20080306/003240458/if-intellectual-property-is-neither-intellectual-property-what-is-it.shtml|author1=Mike Masnick|authorlink1=Mike Masnick|date=6 March 2008|website=techdirt.com|publisher=[[Techdirt]]|url-status=live|accessdate=17 August 2014}}</ref>
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Criticism of the term "intellectual property" ranges from discussing its vagueness and abstract overreach to direct contention concerning the semantic validity of using words like "property" and "rights" which lead to "the idea that it's just like regular property."<ref name=Masnick>Mike Masnick, [https://www.techdirt.com/articles/20080306/003240458/if-intellectual-property-is-neither-intellectual-property-what-is-it.shtml If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?] ''Tech Dirt'', March 6, 2008. Retrieved January 23, 2021.</ref>  
  
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[[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".<ref name="mirage">{{cite web|title=Did You Say 'Intellectual Property'? It's a Seductive Mirage|url=https://www.gnu.org/philosophy/not-ipr.xhtml|author=Richard M. Stallman|date=|website=gnu|publisher=Free Software Foundation, Inc.|url-status=live|archive-url=|archive-date=|accessdate=2008-03-28}}</ref> Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. He argues that "to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of 'intellectual property'."<ref name="words-to-avoid">{{cite web|title=Words to Avoid (or Use with Care) Because They Are Loaded or Confusing|url=https://www.gnu.org/philosophy/words-to-avoid.en.html#IntellectualProperty|author=Richard M. Stallman|date=|website=gnu|publisher=The GNU Project|url-status=live|archive-url=|archive-date=|accessdate=2016-12-01}}</ref>
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Law professor, writer and political activist [[Lawrence Lessig]], along with many other [[copyleft]] and free software activists, have criticized this 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).<ref name=Lessig/>
  
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Other arguments along these lines claim that unlike the situation with tangible property, there is [[artificial scarcity|no natural scarcity]] of a particular idea or information: once it exists, it can be re-used and duplicated indefinitely without such re-use diminishing the original: <blockquote>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.<ref name=Stallman>Richard Stallman, [https://www.gnu.org/philosophy/words-to-avoid.en.html#IntellectualProperty Words to Avoid (or Use with Care) Because They Are Loaded or Confusing] ''GNU Operating System''. Retrieved January 23, 2021.</ref></blockquote>
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The term "intellectual property," by including the word "property" implies scarcity, which may not be applicable to ideas.<ref>Stephan Kinsella, [https://cdn.mises.org/15_2_1.pdf Against Intellectual Property] ''Journal of Libertarian Studies'' 15(2) (Spring 2001):1–53. Retrieved January 23, 2021.</ref>
  
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Some commentators, such as [[David K. Levine|David Levine]] and [[Michele Boldrin]], have disputed this justification. Citing problems such as inflated prices of pharmaceuticals to satisfy the patent holders leading to patients being unable to pay for needed medication, as well young people's "pirating" of high priced musical recordings simply to enjoy a wide variety of music, they suggest that intellectual property rights, rather than encouraging innovation has created an “intellectual monopoly” that hinders rather than helps the competitive free market.<ref>Michele Boldrin and David K. Levine, ''Against Intellectual Monopoly'' (Cambridge University Press, 2010, ISBN 978-0521127264).</ref>
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====Alternative terms====
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Alternative terms, such as "Intellectual Monopoly," "Intellectual Privilege," "Imaginary Property," and others, have been suggested to replace "Intellectual Property."<ref name=Masnick/> "Imaginary Property" does not solve the problem of the implied connection to real property given that it continues to use the term; and the nature of intellectual property defined as  :creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" is hardly imaginary.
  
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On the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers.<ref>{{Cite web |url=http://web.mit.edu/comm-forum/forums/copyright.html |title=copyright and globalization in the age of computer networks |date=19 April 2001 |accessdate=21 October 2015 |website=mit.edu |last=Stallman |first=Richard |authorlink=Richard Stallman |archiveurl=https://web.archive.org/web/20150302072256/http://web.mit.edu/comm-forum/forums/copyright.html |archivedate=2 March 2015}}</ref> Still referring to copyright, he cites legal literature such as the United States Constitution and [[case law]] to demonstrate that the law is meant to be an optional and experimental bargain to temporarily trade property rights and free speech for public, not private, benefits in the form of increased artistic production and knowledge. He mentions that "if copyright were a natural right nothing could justify terminating this right after a certain period of time".<ref>{{Cite web|title=Misinterpreting Copyright|url=https://www.gnu.org/philosophy/misinterpreting-copyright.html|last=Stallman|first=Richard|authorlink=Richard Stallman|date=|website=gnu.org|url-status=live|accessdate=21 October 2015}}</ref>
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"Intellectual Privilege" loses the term "property" but adds the term "privilege," for reasons which are not immediately apparent, especially when applied to laws of protection.  
  
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Law professor, writer and political activist [[Lawrence Lessig]], along with many other [[copyleft]] and free software activists, has 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).<ref name="lessigperpetual" /><ref>{{cite news |title="Intellectual property" is a silly euphemism |last=Doctorow |first=Cory |authorlink=Cory Doctorow |newspaper=[[The Guardian]] |url=https://www.theguardian.com/technology/2008/feb/21/intellectual.property |date=2008-02-21 |accessdate=2008-02-23}}</ref> Other arguments along these lines claim that unlike the situation with tangible property, there is [[artificial scarcity|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]] has objected to ''intellectual property'' on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.<ref>Stephan Kinsella (2001) [https://cdn.mises.org/15_2_1.pdf Against Intellectual Property] Journal of Libertarian Studies 15(2):1–53</ref>
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Economists [[Michele Boldrin]] and [[David K. Levine]] support the use of the term "intellectual monopoly" as a more appropriate and clear definition of the concept. They argue that rights to intellectual creations are very dissimilar from property rights, creating market monopolies rather than protecting the rights of the owner.<ref name=Boldrin>Michele Boldrin and David K. Levine, ''Against Intellectual Monopoly'' (Cambridge University Press, 2010, ISBN 978-0521127264).</ref>
  
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Entrepreneur and politician [[Rickard Falkvinge]] and [[Hacker (programmer subculture)|hacker]] [[Alexandre Oliva]] have independently compared George Orwell's fictional dialect [[Newspeak]] to the terminology used by intellectual property supporters as a linguistic weapon to shape public opinion regarding copyright debate and [[Digital Rights Management|DRM]].<ref>{{cite web|title=Language Matters: Framing The Copyright Monopoly So We Can Keep Our Liberties|url=http://torrentfreak.com/language-matters-framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714/|author1=Rick Falkvinge|authorlink1=Rick Falkvinge|date=14 July 2013|website=torrentfreak.com|url-status=dead|accessdate=17 August 2014|archive-date=4 June 2014|archive-url=https://web.archive.org/web/20140604193406/http://torrentfreak.com/language-matters-framing-the-copyright-monopoly-so-we-can-keep-our-liberties-130714/}}</ref><ref>{{cite web |author1=Alexandre Oliva |authorlink1=Alexandre Oliva |title=1984+30: GNU speech to defeat e-newspeak |url=http://www.fsfla.org/~lxoliva/fsfla/1984+30.en.pdf |accessdate=17 August 2014 }}</ref>
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For many, however, given the problems with the term, and the great differences among the areas to which it is applied, the conclusion is that it is better to use the specific terms, "copyright," or "patent," or "trademark," and so forth, rather than employing a general and misleading term.<ref name=Stallman/>
  
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====Alternative terms====
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===Overbroad intellectual property laws===
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In [[civil law (legal system)|civil law]] jurisdictions, intellectual property has often been referred to as [[intellectual rights]], traditionally a somewhat broader concept that has included [[Moral rights (copyright law)|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.
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In 2001 the [[United Nations]] [[Committee on Economic, Social and Cultural Rights]] concluded that intellectual property (IP) 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.<ref>[https://www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.15HRIntel-property.pdf Human rights and intellectual property] ''UN Committee on Economic Social and Cultural Rights'', Geneva, November 12–30, 2001. retrieved January 23, 2021.</ref>
  
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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]]. The [[backronym]]s ''intellectual protectionism'' and ''intellectual poverty'',<ref>Stephan Kinsella for Ludwig von Mises Institute blog, January 6, 2011. [https://web.archive.org/web/20120709151150/http://archive.mises.org/15240/intellectual-poverty/ Intellectual Poverty]</ref> whose initials are also ''IP'', have found supporters as well, especially among those who have used the backronym ''[[Opposition to digital rights management|digital restrictions management]]''.<ref>[http://drm.info/ Official drm.info site] run by the Free Software Foundation Europe (FSFE)</ref><ref>{{cite web|title=What is DRM?|url=http://www.defectivebydesign.org/what_is_drm_digital_restrictions_management|last=|first=|date=|website=defectivebydesign|publisher=Defective by Design|url-status=live|archive-url=|archive-date=|accessdate=2015-08-17}}</ref>
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Such ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug: "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."<ref>Jorn Sonderholm, [https://onlinelibrary.wiley.com/doi/abs/10.1111/j.1747-9991.2010.00358.x Ethical Issues Surrounding Intellectual Property Rights] ''Philosophy Compass'' 5(12) (2010): 1107–1115. Retrieved January 23, 2021.</ref>  
  
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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<ref>Birgitte Andersen. "'Intellectual Property Right' Or 'Intellectual Monopoly Privilege: Which One Should Patent Analysts Focus On?" CONFERENCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO. Nov 2003</ref> and [[Thomas Alured Faunce]].<ref>{{cite journal |last1=Martin |first1=G |last2=Sorenson |first2=C |last3=Faunce |first3=TA |year=2007 |title=Balancing intellectual monopoly privileges and the need for essential medicines |journal=Globalization and Health |volume=3 |page=4 |doi=10.1186/1744-8603-3-4 |quote=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. |pmid=17565684 |pmc=1904211}}</ref>
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In 2004 the General Assembly of the [[World Intellectual Property Organization]] (WIPO) adopted ''The Geneva Declaration on the Future of the World Intellectual Property Organization'' which calls on WIPO to "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."<ref>[http://www.cptech.org/ip/wipo/genevadeclaration.html Geneva Declaration on the Future of the World Intellectual Property Organization] October 4, 2004. Retrieved January 23, 2021.</ref>
  
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===Objections to overbroad intellectual property laws===
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Critics have also noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection." The typical argument for broad protection is as follows:  
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Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection." This absolute protection or full value view treats intellectual property as another type of "real" property, typically adopting its law and rhetoric:  
 
 
<blockquote>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.<ref name=Lemley/></blockquote>  
 
<blockquote>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.<ref name=Lemley/></blockquote>  
  
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Some critics of intellectual property, such as those in the [[free culture movement]], point at intellectual monopolies as harming health (in the case of [[pharmaceutical patent]]s), preventing progress, and benefiting concentrated interests to the detriment of the masses,<ref>Birgitte Andersen. [http://redesist.ie.ufrj.br/globelics/pdfs/GLOBELICS_0050_Andersen.pdf 'Intellectual Property Right' Or 'Intellectual Monopoly Privilege': Which One Should Patent Analysts Focus On?]  Conferência Internacional Sobre Sistemas De Inovação E Estratégias De Desenvolvimento Para O Terceiro Milênio. Nov. 2003</ref><ref>{{cite journal |last1=Martin |first1=G |last2=Sorenson |first2=C |last3=Faunce |first3=TA |year=2007 |title=Editorial: Balancing the need to protect the intellectual property rights (IPRs) |journal=Globalization and Health |volume=3 |page=4|doi=10.1186/1744-8603-3-4 |pmid=17565684 |pmc=1904211 }}</ref><ref>On patents – {{cite web|title=Protecting Freedom In The Patent System: The Public Patent Foundation's Mission and Activities|url=https://www.youtube.com/watch?v=d0chez_Jf5A|author=Daniel B. Ravicher|date=August 6, 2008|website=YouTube|url-status=live|archive-url=|archive-date=|access-date=}}</ref><ref>{{cite web|title=Authors@Google: Joseph Stiglitz – Making Globalization Work.|url=https://www.youtube.com/watch?v=UzhD7KVs-R4#t=16m05s|last=Stiglitz|first=Joseph|author-link=Joseph Stiglitz|date=October 13, 2006|website=YouTube|url-status=live|archive-url=|archive-date=|access-date=}}</ref> and argue that the public interest is harmed by ever-expansive monopolies in the form of [[copyright extension]]s, [[software patents]], and [[business method patents]]. More recently scientists and engineers are expressing concern that [[patent thickets]] are undermining technological development even in high-tech fields like [[nanotechnology]].<ref>[https://arstechnica.com/science/2012/11/stallmans-got-company-researcher-wants-nanotech-patent-moratorium/ Stallman's got company: Researcher wants nanotech patent moratorium] – Ars Technica</ref><ref>[https://www.wired.co.uk/news/archive/2012-11/23/professor-seeks-nanotech-patent-moratorium Freeze on nanotechnology patents proposed to help grow the sector] {{webarchive|url=https://web.archive.org/web/20140302113908/http://www.wired.co.uk/news/archive/2012-11/23/professor-seeks-nanotech-patent-moratorium |date=2014-03-02 }}- Wired UK 11-23-2012</ref>
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Boldrin and Levine have disputed this justification. Citing problems such as inflated prices of pharmaceuticals to satisfy the patent holders leading to patients being unable to pay for needed medication, as well young people's "pirating" of high priced musical recordings simply to enjoy a wide variety of music, they suggest that rather than encouraging innovation, the protection given by intellectual property laws hinders rather than helps the competitive free market by creating "intellectual monopolies.”<ref name=Boldrin/>  
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Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:
 
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<blockquote>Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.<ref>Moser, Petra. 2013. "Patents and Innovation: Evidence from Economic History." Journal of Economic Perspectives, 27(1): 23–44.</ref></blockquote>
 
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In support of that argument, [[Jörg Baten]], Nicola Bianchi and Petra Moser<ref>{{cite journal|last1=Baten|first1=Jörg|last2=Bianchi|first2=Nicola|last3=Moser|first3=Petra|title=Compulsory licensing and innovation–Historical evidence from German patents after WWI|journal=Journal of Development Economics|year=2017|volume=126|pages=231–242|doi=10.1016/j.jdeveco.2017.01.002|doi-access=free}}</ref> find historical evidence that especially compulsory licensing – which allows governments to license patents without the consent of patent-owners – encouraged invention in Germany in the early 20th century by increasing the threat of competition in fields with low pre-existing levels of competition.
 
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[[Peter Drahos]] notes, "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."<ref>Peter Drahos and John Braithwaite. [http://www.anu.edu.au/fellows/pdrahos/books/Information%20Feudalism.pdf Information Feudalism: Who Owns the Knowledge Economy?], Earthscan 2002</ref>{{rp|13}}
 
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Similarly, economists [[Michele Boldrin|Boldrin]] and [[David K. Levine|Levine]] prefer to use the term "intellectual monopoly" as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights.<ref>Boldrin, Michele, and David K. Levine. [http://levine.sscnet.ucla.edu/general/intellectual/against.htm Against intellectual monopoly] {{Webarchive|url=https://web.archive.org/web/20171206094352/http://levine.sscnet.ucla.edu/general/intellectual/against.htm |date=2017-12-06 }}. Cambridge: Cambridge University Press, 2008.</ref> They further argued that “stronger patents do little or nothing to encourage innovation”, mainly explained by its tendency to create market monopolies, thereby restricting further innovations and technology transfer.<ref>Michele Boldrin and David K. Levine (2009): “Intellectual Property Rights and Economic Growth in the Long-Run”; A model Discovery, available; http://levine.sscnet.ucla.edu/papers/aea_pp09.pdf {{Webarchive|url=https://web.archive.org/web/20170809070301/http://levine.sscnet.ucla.edu/papers/aea_pp09.pdf |date=2017-08-09 }}</ref>
 
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The [[World Intellectual Property Organization]] (WIPO) recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights.<ref>{{cite web|title=Human Rights and Intellectual Property: An Overview|url=http://www.wipo.int/tk/en/hr/|author=WIPO – World Intellectual Property Organization|date=|website=wipo|url-status=dead|archiveurl=https://web.archive.org/web/20111022125749/http://www.wipo.int/tk/en/hr/|archivedate=October 22, 2011|accessdate=October 25, 2011|df=}}</ref> In 2001 the UN [[Committee on Economic, Social and Cultural Rights]] issued a document called "Human rights and intellectual property" that argued 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.<ref>Staff, UN Committee on Economic Social and Cultural Rights. Geneva, November 12–30, 2001. [http://www2.ohchr.org/english/bodies/cescr/docs/statements/E.C.12.2001.15HRIntel-property.pdf Human rights and intellectual property]</ref><ref>{{cite journal |last=Chapman |first=Audrey R. |title=The Human Rights Implications of Intellectual Property Protection |journal=Journal of International Economic Law |date=December 2002 |volume=5 |issue=4 |pages=861–882 |doi=10.1093/jiel/5.4.861 |url=http://jiel.oxfordjournals.org/content/5/4/861.short |accessdate=February 9, 2013}}</ref> In 2004 the General Assembly of WIPO adopted ''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".<ref>[http://www.cptech.org/ip/wipo/genevadeclaration.html ''The Geneva Declaration on the Future of the World Intellectual Property Organization'']</ref>
 
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Ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug.<ref name=Sonderholm>{{Cite journal | doi=10.1111/j.1747-9991.2010.00358.x|title = Ethical Issues Surrounding Intellectual Property Rights| journal=Philosophy Compass| volume=5| issue=12| pages=1107–1115|year = 2010|last1 = Sonderholm|first1 = Jorn}}</ref> "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".<ref name=Sonderholm />{{rp|1108–9}}
 
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[[Libertarian]]s have [[Libertarian perspectives on intellectual property|differing views on intellectual property]].{{Citation needed|date=August 2018}} [[Stephan Kinsella]], an [[anarcho-capitalist]] on the [[right-libertarian|right-wing of libertarianism]],<ref>Stephan Kinsella, [https://web.archive.org/web/20180415041048/https://www.lewrockwell.com/2004/01/stephan-kinsella/what-it-means-to-be-an-anarcho-capitalist/ "What It Means To Be an Anarcho-Capitalist"], "LewRockwell.com", published 2004-01-20, archived 2018-04-15. Retrieved 2018-08-04</ref> [[criticism of intellectual property|argues against intellectual property]] because allowing property rights in ideas and information creates [[artificial scarcity]] and infringes on the right to own tangible property. Kinsella uses the following scenario to argue this point:
 
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<blockquote>[I]magine the time when men lived in caves. One bright guy&mdash;let's call him Galt-Magnon&mdash;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.<ref>[https://web.archive.org/web/20080730030236/https://mises.org/books/against.pdf N. Stephan Kinsella, ''Against Intellectual property''] (2008), p. 44.</ref></blockquote>
 
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[[Thomas Jefferson]] once said in a letter to Isaac McPherson on August 13, 1813:
 
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<blockquote>"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 [[candle|taper]] at mine, receives light without darkening me."<ref>[http://press-pubs.uchicago.edu/founders/documents/a1_8_8s12.html Thomas Jefferson, ''Letter to Isaac McPherson''] (August 13, 1813)</ref></blockquote>
 
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In 2005 the [[Royal Society for the encouragement of Arts, Manufactures & Commerce|RSA]] launched the [[Adelphi Charter]], aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.<ref>Boyle, James (14 October 2005). [http://education.guardian.co.uk/higher/comment/story/0,,1591467,00.html Protecting the public domain]. ''The Guardian''.</ref>
 
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Another aspect 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.<ref>{{cite journal|first=Philip |last=Bennet|title=Native Americans and Intellectual Property: the Necessity of Implementing Collective Ideals into Current United States Intellectual Property Laws|year= 2009 |ssrn=1498783}}</ref>
 
  
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Intellectual property law has been criticized as not recognizing new forms of art such as the [[remix culture]], whose participants often commit what technically constitutes violations of such laws, creation works such as [[Anime music video|anime music videos]] and others, or are otherwise subject to unnecessary burdens and limitations which prevent them from fully expressing themselves.<ref name="JemielniakPrzegalinska20202">{{cite book|author1=Dariusz Jemielniak|url=https://books.google.com/books?id=yLDMDwAAQBAJ|title=Collaborative Society|author2=Aleksandra Przegalinska|date=18 February 2020|publisher=MIT Press|isbn=978-0-262-35645-9}}</ref>{{Rp|70}}<ref>{{Cite journal|last1=Fiesler|first1=Casey|last2=Feuston|first2=Jessica L.|last3=Bruckman|first3=Amy S.|date=2015-02-28|title=Understanding Copyright Law in Online Creative Communities|url=https://doi.org/10.1145/2675133.2675234|journal=Proceedings of the 18th ACM Conference on Computer Supported Cooperative Work & Social Computing|series=CSCW '15|location=Vancouver, BC, Canada|publisher=Association for Computing Machinery|pages=116–129|doi=10.1145/2675133.2675234|isbn=978-1-4503-2922-4|s2cid=28669082}}</ref><ref>{{Cite journal|last=Freund|first=Katharina|date=2016-08-01|title="Fair use is legal use": Copyright negotiations and strategies in the fan-vidding community|url=https://doi.org/10.1177/1461444814555952|journal=New Media & Society|language=en|volume=18|issue=7|pages=1347–1363|doi=10.1177/1461444814555952|s2cid=11258627|issn=1461-4448}}</ref><ref>{{Cite journal|last=Allen|first=Peter James|date=2008-08-24|title=Rip, mix, burn … sue … ad infinitum: The effects of deterrence vs voluntary cooperation on non-commercial online copyright infringing behaviour|url=https://journals.uic.edu/ojs/index.php/fm/article/view/2073|journal=First Monday|language=en|doi=10.5210/fm.v13i9.2073|issn=1396-0466}}</ref>
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Historical analysis supports the contention that intellectual property laws may harm innovation:
 +
<blockquote>Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.<ref>Petra Moser, [https://www.aeaweb.org/articles?id=10.1257/jep.27.1.23 Patents and Innovation: Evidence from Economic History] ''Journal of Economic Perspectives'' 27(1) (2013): 23–44. Retrieved January 23, 2021.</ref></blockquote>
  
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===Objections to the expansion in nature and scope of intellectual property laws===
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===Duration and scope===
 +
The duration and scope of intellectual property rights have also been the subject of discussion and criticism.
  
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Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope.
+
Arguments have been advanced that copyright should be renewable, or even have no term limits at all.<ref>Mark Helprin, [https://www.nytimes.com/2007/05/20/opinion/20helprin.html A Great Idea Lives Forever. Shouldn't Its Copyright?] ''The New York Times'', May 20, 2007. Retrieved January 23, 2021.</ref> Changes in copyright law in the United States, such as the 1976 Copyright Act and the Sonny Bono Copyright Term Extension Act of 2008, eliminated the registration and notice requirements, and extended the duration of copyright. These changes increased the likelihood that of [[orphan works]] (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.<ref>Library of Congress Copyright Office [http://www.copyright.gov/fedreg/2012/77fr64555.pdf Docket No. 2012–12 Orphan Works and Mass Digitization] ''Federal Register'' 77(204) (October 22, 2012): 64555–64561. Retrieved January 23, 2021. See page 64555 first column for international efforts and third column for description of the problem.</ref>
  
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In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms,<ref>Council for Responsible Genetics, "[https://web.archive.org/web/20111002092235/http://www.actionbioscience.org/genomics/crg.html DNA Patents Create Monopolies on Living Organisms]". Retrieved 2008.12.18.</ref> and in the United States, [[Plant breeders' rights|certain living organisms]] have been patentable for over a century.<ref>Plant Patents [https://web.archive.org/web/19990220172601/http://www.uspto.gov/web/offices/pac/plant/ USPTO.gov]</ref>
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International efforts to harmonize the definition of "trademark" have led to expansion in scope. For example, the [[TRIPS Agreement|Agreement on Trade-Related Aspects of Intellectual Property Rights]] ratified in 1994, formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any [[sign (semiotics)|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.<ref>Katherine Beckman and Christa Pletcher, [http://ipjournal.law.wfu.edu/files/2010/10/article.10.215.pdf Expanding Global Trademark Regulation] ''Wake Forest Intellectual Property Law Journal'' 10(2) (2009): 215–239. Retrieved January 23, 2021.</ref>
  
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The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions [[Sonny Bono Copyright Term Extension Act|in the United States]] and [[Directive on harmonising the term of copyright protection|in Europe]].<ref name="lessigperpetual">{{cite web|title=Against perpetual copyright|url=http://wiki.lessig.org/index.php/Against_perpetual_copyright|last=|first=|date=|website=wiki.lessig.org|url-status=dead|archive-url=https://web.archive.org/web/20091103224919/http://wiki.lessig.org/index.php/Against_perpetual_copyright|archive-date=2009-11-03|access-date=}}</ref><ref>''E.g.'', the U.S. [[Copyright Term Extension Act]], Pub.L. 105–298.</ref><ref>Mark Helprin, Op-ed: [https://www.nytimes.com/2007/05/20/opinion/20helprin.html A Great Idea Lives Forever. Shouldn't Its Copyright?] ''The New York Times'', May 20, 2007.</ref><ref>''[[Eldred v. Ashcroft]]'' [https://www.law.cornell.edu/supct/html/01-618.ZS.html Eldred v. Ashcroft, 537 U. S. 186 (2003)]</ref><ref name="td_confused">{{cite web|title=Arguing For Infinite Copyright... Using Copied Ideas And A Near Total Misunderstanding Of Property|url=http://www.techdirt.com/articles/20070521/015928.shtml|last=Masnick|first=Mike|date=May 21, 2007|website=techdirt|publisher=[[techdirt]]|url-status=dead|archive-url=https://web.archive.org/web/20090907142130/http://www.techdirt.com/articles/20070521/015928.shtml|archive-date=September 7, 2009|access-date=}}</ref> With no need for registration or copyright notices, this is thought to have led to an increase in [[orphan works]] (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.<ref>Library of Congress Copyright Office [http://www.copyright.gov/fedreg/2012/77fr64555.pdf Docket No. 2012–12 Orphan Works and Mass Digitization] Federal Register, Vol. 77, No. 204. Monday, October 22, 2012. Notices. PP 64555–64561; see p 64555 first column for international efforts and 3rd column for description of the problem.</ref>
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In terms of scope, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms, usually plants.<ref>Jake Mace, [http://ipwire.com/stories/patentability-living-organisms/ Can a living organism be patented? The quick answer is “sometimes.”] ''IP Wire'', July 31, 2017. Retrieved January 23, 2021. </ref>  
  
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Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its 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 has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed 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.<ref>Dennis Wharton, "MPAA's Rebel With Cause Fights for Copyright Coin," Variety (August 3, 1992), Vol. 348, No. 2, p. 18.</ref> These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.<ref>William W. Fisher III, [http://cyber.law.harvard.edu/property99/history.html The Growth of Intellectual Property:A History of the Ownership of Ideas in the United States] Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999)</ref>
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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. Laws such as the [[Digital Millennium Copyright Act]] (DMCA) have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. This can hinder legal uses, affecting [[public domain]] works, [[limitations and exceptions to copyright]], or uses allowed by the copyright holder. Some [[copyleft]] licenses, like [[GNU GPL 3]], are designed to counter that.<ref>Brett Smith, [https://www.gnu.org/licenses/quick-guide-gplv3.en.html A Quick Guide to GPLv3] ''GNU Operating System''. Retrieved January 23, 2021. </ref>  
  
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The growth of the [[Internet]], and particularly distributed search engines like [[Kazaa]] and [[Gnutella]], have represented a challenge for copyright policy. The [[Recording Industry Association of America]], in particular, has been on the front lines of the fight against [[copyright infringement]], which the industry calls "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. 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. Laws such as the [[Digital Millennium Copyright Act]] have been enacted that use 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 [[Information Society Directive|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). This can hinder legal uses, affecting [[public domain]] works, [[limitations and exceptions to copyright]], or uses allowed by the copyright holder. Some [[copyleft]] licenses, like [[GNU GPL 3]], are designed to counter that.<ref>{{cite web|title=A Quick Guide to GPLv3|url=https://www.gnu.org/licenses/quick-guide-gplv3.en.html|last=Smith|first=Brett|date=2007–2010|website=gnu|publisher=[[Free Software Foundation]]|url-status=live|archive-url=|archive-date=|accessdate=2013-02-15}}</ref> Laws may permit circumvention under specific conditions like when it is necessary to achieve interoperability with the circumventor's program, or for [[accessibility]] reasons; however, distribution of circumvention tools or instructions may be illegal.
+
Intellectual property law has also been criticized for not recognizing new forms of art such as remixes, [[Anime music video|anime music videos]] and others, which are derivative works by combining or editing existing materials to produce a new creative work or product. The creation of such works technically constitutes violations of copyright law, or are otherwise subject to unnecessary burdens and limitations which prevent the creators from fully expressing themselves.<ref>Dariusz Jemielniak and Aleksandra Przegalinska, ''Collaborative Society'' (The MIT Press, 2020, ISBN 978-0262537919).</ref>
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In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the [[TRIPS Agreement|Agreement on Trade-Related Aspects of Intellectual Property Rights]] ratified in 1994, which formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any [[sign (semiotics)|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.<ref>Katherine Beckman and Christa Pletcher (2009) [http://ipjournal.law.wfu.edu/files/2010/10/article.10.215.pdf Expanding Global Trademark Regulation] Wake Forest Intellectual Property Law Journal 10(2): 215–239</ref>
 
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===Use in corporate tax avoidance===
 
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Intellectual property has become a core tool in corporate tax planning and tax avoidance.<ref name="fordam">{{cite web|title=Intellectual Property and Tax Avoidance in Ireland|url=http://www.fordhamiplj.org/2016/08/30/ip-tax-avoidance-ireland/|last=|first=|date=30 August 2016|website=fordhamiplj|publisher=Fordham Intellectual Property, Media & Entertainment Law Journal|url-status=dead|archive-url=https://web.archive.org/web/20190502112434/http://www.fordhamiplj.org/2016/08/30/ip-tax-avoidance-ireland/|archive-date=2 May 2019|access-date=}}</ref><ref name="ucla">Intellectual property (IP) has become the leading tax-avoidance vehicle.{{cite web|title=Intellectual Property Law Solutions to Tax Avoidance|url=https://www.uclalawreview.org/pdf/62-1-1.pdf|last=|first=|year=2015|website=uclalawreview|publisher=UCLA Law Review|url-status=dead|archive-url=https://web.archive.org/web/20150316232500/http://www.uclalawreview.org/pdf/62-1-1.pdf|archive-date=2015-03-16|access-date=}}</ref><ref name="lux">{{cite journal|url=https://www.economist.com/business/2015/08/27/patently-problematic|title=Patently problematic|journal=The Economist|date=August 2015}}</ref> IP is a key component of the leading multinational tax avoidance [[base erosion and profit shifting]] (BEPS) tools,<ref name="tilburg">{{cite web | url=http://arno.uvt.nl/show.cgi?fid=143915| title=Intellectual Property Tax Planning in the light of Base Erosion and Profit Shifting  | publisher=University of Tilburg | date=June 2017}}</ref><ref name="zew">{{cite web|url=http://ftp.zew.de/pub/zew-docs/dp/dp13078.pdf|title=Profit Shifting and "Aggressive" Tax Planning by Multinational Firms |publisher=Centre for European Economic Research (ZEW)|page=3|date=October 2013}}</ref> which the OECD estimates costs $100–240 billion in lost annual tax revenues,<ref name="BEPS Background"/> and includes:
 
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{{ordered list|type=lower-roman
 
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|Using IP [[royalty payment]] schemes to profit shift income from higher-tax locations to lower-tax locations (such as the Facebook 2012 [[double Irish]] and the Microsoft 2015 [[double Irish arrangement#Replacement by single malt|single malt]] BEPS tax schemes);<ref>{{cite web|url=https://www.ft.com/content/ca64f938-5dc0-11e3-95bd-00144feabdc0|title='Double Irish' limits Facebook's tax bill to €1.9m in Ireland|work=Financial Times|date=5 December 2013}}</ref><ref>{{Cite journal|title = Multinationals replacing 'Double Irish' with new tax avoidance scheme|url = https://www.rte.ie/news/business/2017/1114/919979-multinationals-using-new-arrangement-to-reduce-tax-bill/|publisher = Raidió Teilifís Éireann|date = 14 November 2017}}</ref>
 
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|Using IP royalty payment schemes to overcome EU [[withholding tax]] protections (such as the circa 2007 Google [[dutch sandwich]] BEPS tax scheme);<ref>{{cite web|url=https://www.bloomberg.com/news/articles/2018-01-02/google-s-dutch-sandwich-shielded-16-billion-euros-from-tax | title=Google's 'Dutch Sandwich' Shielded 16 Billion Euros From Tax| publisher=Bloomberg| date=2 January 2018}}</ref>
 
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|Using advanced IP GAAP accounting to create [[intangible asset]]s which can be expensed against taxation in certain IP-beneficial regimes (such as the Apple 2015 Irish [[double Irish arrangement#Backstop of capital allowances|capital allowances for intangible assets]] BEPS tax scheme);<ref>{{cite web|url=http://economic-incentives.blogspot.ie/2018/01/what-apple-did-next.html|title=What Apple did next|publisher=Seamus Coffey, University College Cork|date=24 January 2014}}</ref><ref>{{cite web|url=https://www.cfr.org/blog/tax-avoidance-and-irish-balance-payments|title=Tax Avoidance and the Irish Balance of Payments|publisher=Council on Foreign Relations|date=25 April 2018}}</ref>
 
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|Using advanced IP GAAP accounting to maximize the effect of corporate relocations to low-tax regimes (used by Accenture in their 2009 U.S. corporate [[tax inversion]] to Ireland).<ref>{{cite web|url=https://www.irishexaminer.com/business/firm-gets-tax-relief-on-7bn-rights-211760.html|title=Accenture gets tax relief on $7bn of IP rights: Accenture| work=Irish Examiner|date=24 January 2012}}</ref>
 
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}}
 
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In 2017–2018, both the U.S. and the EU Commission simultaneously decided to depart from the [[Base erosion and profit shifting (OECD project)|OECD BEPS Project]] timetable, which was set up in 2013 to combat IP BEPS tax tools like the above,<ref name="BEPS Background">{{cite web|title=BEPS Project Background Brief|url=http://www.oecd.org/tax/beps/background-brief-inclusive-framework-for-beps-implementation.pdf|publisher=OECD|date=January 2017}}</ref> and launch their own anti-IP BEPS tax regimes:
 
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* U.S. [[Tax Cuts and Jobs Act of 2017]], which has several anti-IP BEPS abuse tax regimes, including GILTI tax and the BEAT tax regimes.<ref>{{Cite web|title = A Hybrid Approach: The Treatment of Foreign Profits under the Tax Cuts and Jobs Act|url=https://taxfoundation.org/treatment-foreign-profits-tax-cuts-jobs-act/|publisher=Tax Foundation|date = 3 May 2018}}</ref><ref>{{cite web|url=https://www.irishtimes.com/business/economy/trump-s-us-tax-reform-a-significant-challenge-for-ireland-1.3310866|title=Trump's US tax reform a significant challenge for Ireland|work=The Irish Times|date=30 November 2017}}</ref><ref>{{cite web|url=https://www.irishtimes.com/business/donald-trump-singles-out-ireland-in-tax-speech-1.3310149?mode=sample&auth-failed=1&pw-origin=https%3A%2F%2Fwww.irishtimes.com%2Fbusiness%2Fdonald-trump-singles-out-ireland-in-tax-speech-1.3310149|title=Donald Trump singles out Ireland in tax speech|work=The Irish Times|date=29 November 2017}}</ref>
 
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* EU Commission 2018 Digital Services Tax, which is less advanced than the U.S. TCJA, but does seek to override IP BEPS tools via a quasi-VAT.<ref>{{cite web|url=https://www.irishtimes.com/business/economy/why-ireland-faces-a-fight-on-the-corporate-tax-front-1.3426080|title=Why Ireland faces a fight on the corporate tax front|work=The Irish Times|date=14 March 2018}}</ref><ref>{{cite web|url=https://www.independent.ie/business/irish/eu-digital-levy-could-hit-tech-fdi-and-tax-revenue-here-36725944.html|title=EU digital levy could hit tech FDI and tax revenue here|work=Irish Independent|date=21 March 2018}}</ref><ref>{{cite web|url=http://www.thejournal.ie/eu-digital-tax-ireland-2-2-3918628-Mar2018/|title=What the EU's new taxes on the tech giants mean – and how they would hurt Ireland|publisher=thejournal.ie|date=24 March 2018}}</ref>
 
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The departure of the U.S. and EU Commission from the OECD BEPS Project process, is attributed to frustrations with the rise in IP as a key BEPS tax tool, creating intangible assets, which are then turned into royalty payment BEPS schemes (double Irish), and/or [[capital allowance]] BEPS schemes (capital allowances for intangibles). In contrast, the OECD has spent years developing and advocating intellectual property as a legal and a GAAP accounting concept.<ref name="un1">{{cite web|url=https://www.taxjustice.net/2017/09/11/new-un-tax-handbook-sets-lower-income-countries-oecd-beps/|title=New UN tax handbook: Lower-income countries vs OECD BEPS failure|publisher=Tax Justice Network| date=11 September 2017}}</ref>
 
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The EU Commission's [[EU illegal State aid case against Apple in Ireland|€13 billion fine]] of Apple's pre-2015 double Irish IP BEPS tax scheme, is the largest corporate tax fine in history.<ref>{{Cite web|url=http://time.com/4472500/apple-eu-irish-tax-bill/|title=Apple vs. the E.U. Is the Biggest Tax Battle in History|last=Foroohar|first=Rana|date=30 August 2016|website=Time|access-date=14 November 2016}}</ref>
 
  
 
== Notes ==
 
== Notes ==
Line 243: Line 201:
 
* Griffiths, Ralph. ''The Monthly Review, Or, Literary Journal; Volume 61''. Wentworth Press, 2019. ISBN 978-1012313951
 
* Griffiths, Ralph. ''The Monthly Review, Or, Literary Journal; Volume 61''. Wentworth Press, 2019. ISBN 978-1012313951
 
* Hahn, Robert W. ''Intellectual Property Rights in Frontier Industries: Software and Biotechnology''. AEI Press, 2005. ISBN 978-0844771915
 
* Hahn, Robert W. ''Intellectual Property Rights in Frontier Industries: Software and Biotechnology''. AEI Press, 2005. ISBN 978-0844771915
 +
* Jemielniak, Dariusz, and Aleksandra Przegalinska. ''Collaborative Society''. The MIT Press, 2020. ISBN 978-0262537919
 
* Li, Xuan, and Carlos M. Correa (eds.). ''Intellectual Property Enforcement: International Perspectives''. Edward Elgar Pub, 2009. ISBN 978-1848446526
 
* Li, Xuan, and Carlos M. Correa (eds.). ''Intellectual Property Enforcement: International Perspectives''. Edward Elgar Pub, 2009. ISBN 978-1848446526
 
* Lindberg, Van. ''Intellectual Property and Open Source: A Practical Guide to Protecting Code''. O'Reilly Books, 2008. ISBN 978-0596517960
 
* Lindberg, Van. ''Intellectual Property and Open Source: A Practical Guide to Protecting Code''. O'Reilly Books, 2008. ISBN 978-0596517960
Line 260: Line 219:
  
 
==External links==
 
==External links==
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All links retrieved  
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All links retrieved January 23, 2021.
 
* [https://www.wipo.int/about-ip/en/ What is Intellectual Property?] ''WIPO''
 
* [https://www.wipo.int/about-ip/en/ What is Intellectual Property?] ''WIPO''
 
* [https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf Understanding Copyright and Related Rights] ''WIPO''
 
* [https://www.wipo.int/edocs/pubdocs/en/wipo_pub_909_2016.pdf Understanding Copyright and Related Rights] ''WIPO''
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* [https://www.law.cornell.edu/wex/intellectual_property Intellectual Property] ''Legal Information Institute''
 
* [https://www.law.cornell.edu/wex/intellectual_property Intellectual Property] ''Legal Information Institute''
 
* [https://www.investopedia.com/terms/i/intellectualproperty.asp Intellectual Property] ''Investopedia''
 
* [https://www.investopedia.com/terms/i/intellectualproperty.asp Intellectual Property] ''Investopedia''
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* [https://www.inquartik.com/inq-intellectual-property-rights/ The Different Types of IP Protection and Why They Are Important] ''InQuartik''
 
 
* [https://www.legalzoom.com/articles/what-is-intellectual-property What Is Intellectual Property?] ''LegalZoom''
 
* [https://www.legalzoom.com/articles/what-is-intellectual-property What Is Intellectual Property?] ''LegalZoom''
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[[Category:Social sciences]]
 
[[Category:Social sciences]]

Latest revision as of 22:55, 5 February 2023

Scales of justice
Intellectual property law
 
Rights
Authors' rights · Intellectual property · Copyright
Database right · Indigenous intellectual property
Industrial design rights · Geographical indication
Patent · Related rights · Trademark
Trade secret · Utility model
Related topics
Fair use · Public domain
Trade name


Intellectual property (IP) refers to the intangible creations of the human intellect. There are many types of intellectual property, and some countries recognize more than others. The most well-known types are copyrights, patents, trademarks, and trade secrets.

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods, which benefits society as a whole, or the "public good," while still assigning rights to their creators. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. However, the intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Balancing rights so that they are strong enough to encourage the creation of intellectual goods, but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.

Definition

According to the World Intellectual Property Organization (WIPO):

Intellectual property (IP) refers to creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce.[1]

The World Trade Organization (WTO) defines intellectual property as follows:

Intellectual property rights are the rights given to persons over the creations of their minds. They usually give the creator an exclusive right over the use of his/her creation for a certain period of time.[2]

History

The Statute of Anne came into force in 1710

The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively, firmly establishing the concept of intellectual property.[3]

"Literary property" was the term predominantly used in the British legal debates of the 1760s and 1770s over the extent to which authors and publishers of works also had rights deriving from the common law of property (Millar v Taylor (1769), Hinton v Donaldson (1773), Donaldson v Becket (1774)). The first known use of the term "intellectual property" dates to this time, when a piece published in the Monthly Review in 1769 used the phrase: "What a niggard this Doctor is of his own, and how profuse he is of other people's intellectual property." [4] The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays: "New-England Association in favour of Inventors and Discoverers, and particularly for the Protection of intellectual Property."[5]

The term 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." The statement that "discoveries are ... property" goes back earlier. Section 1 of the French law of 1791 stated, "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."[6] In Europe, French author Alfred Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.[7]

When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (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 organization subsequently relocated to Geneva in 1960 and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to legal scholar Mark 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), and it did not enter popular usage there until passage of the Bayh-Dole Act in 1980.[8]

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.[9]

Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.[8] This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.[10]

According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift."[11] Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO's activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles. However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.[11]

Rights

There are many types of intellectual property. The WTO notes two main areas: (1) Copyright and rights related to copyright; and (2) Industrial property.[2]

The European Union (EU) characterizes intellectual property into two types as follows:

Intellectual property includes all exclusive rights to intellectual creations. It encompasses two types of rights: industrial property, which includes inventions (patents), trademarks, industrial designs and models and designations of origin, and copyright, which includes artistic and literary property.[12]

Patents

Main article: Patent

A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention:

A patent is an exclusive right granted for an invention, which is a product or a process that provides, in general, a new way of doing something, or offers a new technical solution to a problem. To get a patent, technical information about the invention must be disclosed to the public in a patent application.[13]

An invention is a solution to a specific technological problem, which may be a product or a process, and generally has to fulfill these requirements: it has to be new, not obvious, there needs to be an industrial applicability, its subject matter must be accepted as “patentable” under law, and the invention must be disclosed in an application such that it can be replicated by a person with an ordinary level of skill in the relevant technical field.[14]

Copyright

Main article: Copyright

A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works."[15] Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.[16]

Industrial design rights

An industrial design right (sometimes called "design right" or "design patent") protects the visual design of objects that are not purely utilitarian: An industrial design constitutes the ornamental aspect of an article.[17]

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-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity, or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.

Plant varieties

Plant breeders' rights or plant variety rights (PVR) are a form of intellectual property used to protect unique plant varieties. Plant varieties awarded PVR status are freely available to others for use in future breeding programs, and plant breeders collect royalties on the production and sale of seed of their protected varieties. In this way, the PVR system both delivers protection and stimulates further innovation in plant breeding.

To qualify for Plant Variety Rights, a new variety must undergo official tests to determine whether it is distinct (clearly distinguishable from any other existing variety by one or more characteristics), uniform (individual plants must be sufficiently uniform in a range of key characteristics), and stable (the plant variety reproduces true to type from one generation to the next).[18]

Trademarks

A trademark is a recognizable word, phrase, symbol, and/or design that distinguishes products or services of a particular trader from similar products or services of other traders.[19]

A trade mark is a sign which can distinguish your goods and services from those of your competitors (you may refer to your trade mark as your “brand”). ... In other words they can be recognised as signs that differentiates your goods or service as different from someone else’s.[20]

Trade dress

Trade dress is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.[21]

Trade secrets

Main article: Trade secret

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. Two of the most famous trade secrets in the United States, for example, are the recipe for Coca Cola and Colonel Harland Sanders' handwritten Original Recipe(R) for Kentucky Fried Chicken.

There is no formal government protection granted; each business must take measures to guard its own trade secrets. A company can protect its confidential information through Non-disclosure agreements (NDA) and non-compete clauses for employees, and confidentiality agreements for vendors or third parties in business negotiations. The protection of a trade secret is perpetual and does not expire after a specific length of time, as a patent does. The lack of formal protection, however, means that a third party is not prevented from independently duplicating and using the secret information once it is discovered.

Motivation and justification

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.[22]

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers.[22] To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation.[22] By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work.

Other developments in intellectual property law, such as the America Invents Act, stress international harmonization. There has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility.[23]

Financial incentive

Exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property. The United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads:

The Congress shall have 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."[24]

Economic growth

These economic incentives are expected to stimulate innovation and contribute to technological progress, leading to economic growth.[25]

The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. 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."[26]

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."[27]

Morality

In the nineteenth century, Lysander Spooner argued:

that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases.[28]

If one believes that intellectual property is no different from material property, then it follows that the same moral rights that govern material property apply to intellectual property. For example, Ayn Rand argued 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.[29]

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."[30] Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property.

The arguments that justify intellectual property rights fall into three major categories: Lockeans argue that intellectual property is justified based on deservedness and hard work; Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation; and personality theorists regard intellectual property as an extension of an individual.[31]

  1. Natural Rights/Justice Argument: This argument is based on John Locke's idea that a person has a natural right over the labor and products which are produced by their body. Appropriating these products is viewed as unjust. Although Locke never explicitly stated that this natural right applied to products of the mind,[32] it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.[33]
  2. Utilitarian-Pragmatic Argument: According to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Innovation and invention in nineteenth century America has been attributed to the development of the patent system.[33] By providing innovators with "durable and tangible return on their investment of time, labor, and other resources," intellectual property rights promote public welfare by encouraging the "creation, production, and distribution of intellectual works."[34]
  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," which leads to the understanding that ideas are an "extension of oneself and of one's personality."[33] Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered.

Infringement, misappropriation, and enforcement

Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.

Patent infringement

Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. The definition of patent infringement may vary by jurisdiction, but it typically includes using or selling the patented invention.

There is safe harbor in many jurisdictions to use a patented invention for research. However, safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.[35]

Patents are territorial, and infringement is only possible in a country where a patent is in force. For example, if a patent is granted in the United States, then anyone in the United States is prohibited from making, using, selling, or importing the patented item, while people in other countries may be free to exploit the patented invention in their country.

In general, patent infringement cases are handled under civil law in the United States, but infringement in criminal law may be included in some jurisdictions.

Copyright infringement

Copyright infringement (colloquially referred to as "piracy") is the unlawful use of works protected by copyright law without permission for a usage where such permission is required, thereby infringing certain exclusive rights granted to the copyright holder, such as the right to reproduce, distribute, display, or perform the protected work, or to make derivative works.[36] The copyright holder is typically the work's creator, or a publisher or other business to whom copyright has been assigned.

Enforcement of copyright is generally the responsibility of the copyright holder.[37]

There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement

Trademark infringement is a violation of the exclusive rights attached to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer," uses a trademark which is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence civil legal proceedings against a party which infringes its registered trademark.

In the United States, the Trademark Counterfeiting Act of 1984 criminalized the intentional trade in counterfeit goods and services.

Trade secret misappropriation

Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available. Acts of industrial espionage are generally illegal in their own right under the relevant governing laws, and penalties can be harsh.

In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. The United States also has federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. § 1831), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes.

Criticisms

A major issue with regard to intellectual property is the question of whether it can be treated as "property" at all. The words of Thomas Jefferson written in a letter to Isaac McPherson on August 13, 1813, are pertinent:

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. That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.[38]

Such distinctions between physical (tangible) and intellectual property are undeniable, and recognized by the framers of intellectual property law, whose purpose was to promote advances in science and the arts, while protecting the inventors and creators of their work from piracy. Thus, intellectual property protection includes term limits:

After authors have been given a decent interval to exploit their property, the monopoly to the work is ended, and the work may be reabsorbed into the culture at large, be remixed into new works, for the public benefit for the rest of time: hence the name "Public Domain" which refers to the domain of this public good.[39]

Term limits notwithstanding, critics continue to reject the implied close connection with tangible property that intellectual property law guarantees. Their primary complaint lies with the term itself.

The term "intellectual property"

Criticism of the term "intellectual property" ranges from discussing its vagueness and abstract overreach to direct contention concerning the semantic validity of using words like "property" and "rights" which lead to "the idea that it's just like regular property."[40]

Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, have criticized this 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).[39]

Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists, it can be re-used and duplicated indefinitely without such re-use diminishing the original:

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.[41]

The term "intellectual property," by including the word "property" implies scarcity, which may not be applicable to ideas.[42]

Alternative terms

Alternative terms, such as "Intellectual Monopoly," "Intellectual Privilege," "Imaginary Property," and others, have been suggested to replace "Intellectual Property."[40] "Imaginary Property" does not solve the problem of the implied connection to real property given that it continues to use the term; and the nature of intellectual property defined as :creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce" is hardly imaginary.

"Intellectual Privilege" loses the term "property" but adds the term "privilege," for reasons which are not immediately apparent, especially when applied to laws of protection.

Economists Michele Boldrin and David K. Levine support the use of the term "intellectual monopoly" as a more appropriate and clear definition of the concept. They argue that rights to intellectual creations are very dissimilar from property rights, creating market monopolies rather than protecting the rights of the owner.[43]

For many, however, given the problems with the term, and the great differences among the areas to which it is applied, the conclusion is that it is better to use the specific terms, "copyright," or "patent," or "trademark," and so forth, rather than employing a general and misleading term.[41]

Overbroad intellectual property laws

In 2001 the United Nations Committee on Economic, Social and Cultural Rights concluded that intellectual property (IP) 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.[44]

Such ethical problems are most pertinent when socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug: "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."[45]

In 2004 the General Assembly of the World Intellectual Property Organization (WIPO) adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which calls on WIPO to "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."[46]

Critics have also noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection." The typical argument for broad protection is as follows:

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.[8]

Boldrin and Levine have disputed this justification. Citing problems such as inflated prices of pharmaceuticals to satisfy the patent holders leading to patients being unable to pay for needed medication, as well young people's "pirating" of high priced musical recordings simply to enjoy a wide variety of music, they suggest that rather than encouraging innovation, the protection given by intellectual property laws hinders rather than helps the competitive free market by creating "intellectual monopolies.”[43]

Historical analysis supports the contention that intellectual property laws may harm innovation:

Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.[47]

Duration and scope

The duration and scope of intellectual property rights have also been the subject of discussion and criticism.

Arguments have been advanced that copyright should be renewable, or even have no term limits at all.[48] Changes in copyright law in the United States, such as the 1976 Copyright Act and the Sonny Bono Copyright Term Extension Act of 2008, eliminated the registration and notice requirements, and extended the duration of copyright. These changes increased the likelihood that of orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.[49]

International efforts to harmonize the definition of "trademark" have led to expansion in scope. For example, the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in 1994, formalized regulations for IP rights that had been handled by common law, or not at all, in member states. 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.[50]

In terms of scope, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms, usually plants.[51]

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. Laws such as the Digital Millennium Copyright Act (DMCA) have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright, or uses allowed by the copyright holder. Some copyleft licenses, like GNU GPL 3, are designed to counter that.[52]

Intellectual property law has also been criticized for not recognizing new forms of art such as remixes, anime music videos and others, which are derivative works by combining or editing existing materials to produce a new creative work or product. The creation of such works technically constitutes violations of copyright law, or are otherwise subject to unnecessary burdens and limitations which prevent the creators from fully expressing themselves.[53]

Notes

  1. ↑ What is Intellectual Property? World Intellectual Property Organization. Retrieved January 19, 2021.
  2. ↑ 2.0 2.1 What are intellectual property rights? World Trade Organization. Retrieved January 19, 2021.
  3. ↑ Brad Sherman and Lionel Bently, The Making of Modern Intellectual Property Law (Cambridge University Press, 1999, ISBN 978-0521563635).
  4. ↑ Ralph Griffiths, The Monthly Review, Or, Literary Journal; Volume 61 (Wentworth Press, 2019, ISBN 978-1012313951).
  5. ↑ Samuel Latham Mitchell and Edward Miller, Medical Repository Of Original Essays And Intelligence (1808), 303. Retrieved January 19, 2021.
  6. ↑ A Brief History of the Patent Law of the United States Ladas & Parry, May 7, 2014. Retrieved January 20, 2021.
  7. ↑ Alfred Nion, Droits civils des auteurs, artistes et inventeurs (Civil rights of authors, artists and inventors) (HardPress Publishing, 2019, ISBN 978-0371209462).
  8. ↑ 8.0 8.1 8.2 Mark Lemley, Property, Intellectual Property, and Free Riding Texas Law Review 83 (2005). Retrieved January 20, 2021.
  9. ↑ Adam Mossoff, Rethinking the Development of Patents: An Intellectual History, 1550–1800 Hastings Law Journal 52 (2001). Retrieved January 20, 2021.
  10. ↑ The Liquidity of Innovation The Economist, October 22, 2005. Retrieved January 20, 2021.
  11. ↑ 11.0 11.1 Jean-Frédéric Morin, Paradigm shift in the global IP regime: The agency of academics Review of International Political Economy 21(2) (2014): 275–309. Retrieved January 20, 2021.
  12. ↑ Intellectual, industrial and commercial property European Parliament. Retrieved January 19, 2021.
  13. ↑ What is a patent? WIPO. Retrieved January 21, 2021.
  14. ↑ Applying for patent protection WIPO. Retrieved January 21, 2021.
  15. ↑ Peter K. Yu, Intellectual Property and Information Wealth (Praeger, 2006, ISBN 978-0275988821).
  16. ↑ Simon Stokes, Art and Copyright (Hart Publishing, 2001, ISBN 978-1841132259).
  17. ↑ https://www.wipo.int/designs/en/ What is an industrial design?] WIPO. Retrieved January 21, 2021.
  18. ↑ Plant Variety Rights Retrieved January 21, 2021.
  19. ↑ Trademark, Patent, or Copyright? US Trademark and Patent Office. Retrieved January 21, 2021.
  20. ↑ Unacceptable trade marks Intellectual Property Office, May 16, 2014. Retrieved January 21, 2021.
  21. ↑ Peter S. Menell, Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh, Intellectual Property in the New Technological Age (Clause 8 Publishing, 2020, ISBN 978-1945555152).
  22. ↑ 22.0 22.1 22.2 Paul Goldstein and R. Anthony Reese, Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property (Foundation Press, 2010, ISBN 978-1599417899).
  23. ↑ Paolo Davide Farah and Ricardo Tremolada, Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights Transnational Dispute Management 11(2) (March 2014). Retrieved January 21, 2021.
  24. ↑ U.S. Constitution Article I Section 8 Clause 8 Stanford University Libraries. Retrieved January 22, 2021.
  25. ↑ Rod Falvey, Neil Foster, and David Greenaway, Intellectual Property Rights and Economic Growth Review of Development Economics 10(4) (November 2006): 700-719. Retrieved January 21, 2021.
  26. ↑ Anti-Counterfeiting Trade Agreement Global Affairs Canada. Retrieved January 22, 2021.
  27. ↑ Measuring the Economic Impact of Intellectual Property Systems WIPO, July, 2007. Retrieved January 22, 2021.
  28. ↑ Lysander Spooner, The Law of Intellectual Property Anodos Books, 2018, ISBN 978-1725719620).
  29. ↑ Ayn Rand, Capitalism: The Unknown Ideal (Signet, 1986, ISBN 978-0451147950).
  30. ↑ The Universal Declaration of Human Rights United Nations.
  31. ↑ Intellectual Property Stanford Encyclopedia of Philosophy, October 10, 2018. Retrieved January 22, 2021.
  32. ↑ 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 (Routledge, 1996. ISBN 978-0813333045), 19–20.
  33. ↑ 33.0 33.1 33.2 Richard T. De George, "Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp (eds.) (Oxford, England: Oxford University Press, 2012, ISBN 978-0199916221), 415–418.
  34. ↑ Richard A. Spinello and Maria Bottis, A Defense of Intellectual Property Rights (Edward Elgar Pub, 2009, ISBN 978-1847203953).
  35. ↑ Alicia A. Russo and Jason Johnson, Research Use Exemptions to Patent Infringement for Drug Discovery and Development in the United States Cold Spring Harbor Perspectives in Medicine 5(2) (February 2015). Retrieved January 22, 2021.
  36. ↑ Darrell Panethiere, The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development e-Copyright Bulletin (April-June, 2005). Retrieved January 22, 2021.
  37. ↑ Xuan Li and Carlos M. Correa (eds.), Intellectual Property Enforcement: International Perspectives (Edward Elgar Pub, 2009, ISBN 978-1848446526).
  38. ↑ Thomas Jefferson to Isaac McPherson August 13, 1813. Retrieved January 23, 20201
  39. ↑ 39.0 39.1 Lawrence Lessig, Against perpetual copyright The Lessig Wiki. Retrieved January 23, 2021.
  40. ↑ 40.0 40.1 Mike Masnick, If Intellectual Property Is Neither Intellectual, Nor Property, What Is It? Tech Dirt, March 6, 2008. Retrieved January 23, 2021.
  41. ↑ 41.0 41.1 Richard Stallman, Words to Avoid (or Use with Care) Because They Are Loaded or Confusing GNU Operating System. Retrieved January 23, 2021.
  42. ↑ Stephan Kinsella, Against Intellectual Property Journal of Libertarian Studies 15(2) (Spring 2001):1–53. Retrieved January 23, 2021.
  43. ↑ 43.0 43.1 Michele Boldrin and David K. Levine, Against Intellectual Monopoly (Cambridge University Press, 2010, ISBN 978-0521127264).
  44. ↑ Human rights and intellectual property UN Committee on Economic Social and Cultural Rights, Geneva, November 12–30, 2001. retrieved January 23, 2021.
  45. ↑ Jorn Sonderholm, Ethical Issues Surrounding Intellectual Property Rights Philosophy Compass 5(12) (2010): 1107–1115. Retrieved January 23, 2021.
  46. ↑ Geneva Declaration on the Future of the World Intellectual Property Organization October 4, 2004. Retrieved January 23, 2021.
  47. ↑ Petra Moser, Patents and Innovation: Evidence from Economic History Journal of Economic Perspectives 27(1) (2013): 23–44. Retrieved January 23, 2021.
  48. ↑ Mark Helprin, A Great Idea Lives Forever. Shouldn't Its Copyright? The New York Times, May 20, 2007. Retrieved January 23, 2021.
  49. ↑ Library of Congress Copyright Office Docket No. 2012–12 Orphan Works and Mass Digitization Federal Register 77(204) (October 22, 2012): 64555–64561. Retrieved January 23, 2021. See page 64555 first column for international efforts and third column for description of the problem.
  50. ↑ Katherine Beckman and Christa Pletcher, Expanding Global Trademark Regulation Wake Forest Intellectual Property Law Journal 10(2) (2009): 215–239. Retrieved January 23, 2021.
  51. ↑ Jake Mace, Can a living organism be patented? The quick answer is “sometimes.” IP Wire, July 31, 2017. Retrieved January 23, 2021.
  52. ↑ Brett Smith, A Quick Guide to GPLv3 GNU Operating System. Retrieved January 23, 2021.
  53. ↑ Dariusz Jemielniak and Aleksandra Przegalinska, Collaborative Society (The MIT Press, 2020, ISBN 978-0262537919).

References
ISBN links support NWE through referral fees

  • Bettig, Ronald V. Copyrighting Culture: The Political Economy of Intellectual Property. Routledge, 1996. ISBN 978-0813333045
  • Brenkert, George G., and Tom L. Beauchamp (eds.). The Oxford Handbook of Business Ethics. Oxford University Press, 2012. ISBN 978-0199916221
  • Burk, Dan L., and Mark A. Lemley. The Patent Crisis and How the Courts Can Solve It. University of Chicago Press, 2009. ISBN 978-0226080611
  • Goldstein, Paul, and R. Anthony Reese. Copyright, Patent, Trademark and Related State Doctrines: Cases and Materials on the Law of Intellectual Property. Foundation Press, 2010. ISBN 978-1599417899
  • Greenhalgh, Christine, and Mark Rogers. Innovation, Intellectual Property, and Economic Growth. New Jersey: Princeton University Press, 2010. ISBN 978-0691137988
  • Griffiths, Ralph. The Monthly Review, Or, Literary Journal; Volume 61. Wentworth Press, 2019. ISBN 978-1012313951
  • Hahn, Robert W. Intellectual Property Rights in Frontier Industries: Software and Biotechnology. AEI Press, 2005. ISBN 978-0844771915
  • Jemielniak, Dariusz, and Aleksandra Przegalinska. Collaborative Society. The MIT Press, 2020. ISBN 978-0262537919
  • Li, Xuan, and Carlos M. Correa (eds.). Intellectual Property Enforcement: International Perspectives. Edward Elgar Pub, 2009. ISBN 978-1848446526
  • Lindberg, Van. Intellectual Property and Open Source: A Practical Guide to Protecting Code. O'Reilly Books, 2008. ISBN 978-0596517960
  • Menell, Peter S., Mark A. Lemley, Robert P. Merges, and Shyamkrishna Balganesh. Intellectual Property in the New Technological Age. Clause 8 Publishing, 2020. ISBN 978-1945555152
  • Miller, Arthur Raphael, and Michael H. Davis. Intellectual Property, Patents, Trademarks, and Copyright in a Nutshell. West Academic Publishing, 2012. ISBN 978-0314278340
  • Nion, Alfred. Droits civils des auteurs, artistes et inventeurs (Civil rights of authors, artists and inventors). HardPress Publishing, 2019. ISBN 978-0371209462
  • Perelman, Michael. Steal This Idea: Intellectual Property and The Corporate Confiscation of Creativity. Palgrave Macmillan, 2004. ISBN 978-1403967138
  • Rand, Ayn. Capitalism: The Unknown Ideal. Signet, 1986. ISBN 978-0451147950
  • Reisman, George. Capitalism: A Complete & Integrated Understanding of the Nature & Value of Human Economic Life. TJS Books, 2020. ISBN 978-1931089654
  • Schechter, Roger E., and John R. Thomas. Intellectual Property: The Law of Copyrights, Patents and Trademarks. West Academic Publishing, 2003. ISBN 978-0314065995
  • Sherman, Brad, and Lionel Bently. The Making of Modern Intellectual Property Law. Cambridge University Press, 1999. ISBN 978-0521563635
  • Spinello, Richard A., and Maria Bottis. A Defense of Intellectual Property Rights. Edward Elgar Pub, 2009. ISBN 978-1847203953
  • Spooner, Lysander. The Law of Intellectual Property. Anodos Books, 2018. ISBN 978-1725719620
  • Stokes, Simon. Art and Copyright. Hart Publishing, 2001. ISBN 978-1841132259
  • 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, 2005. ISBN 978-0465089857
  • Yu, Peter K. Intellectual Property and Information Wealth. Praeger, 2006. ISBN 978-0275988821

External links

All links retrieved January 23, 2021.

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