Patents: One thing that gets pretty confusing when one investigates
the whole patents/open-source/copyright protection field, is the
nature of the term Intellectual Property.
What’s called ‘IP’ consists of three parts: copyright, patents,
and trademarks. This extract
from Harvard’s ‘Intellectual Property in Cyberspace’ series notes:
In the eighteenth century, lawyers and politicians were more likely to
refer to patents and copyrights as ‘monopolies’ than they were to refer
to them as forms of ‘property.’ … Thomas Jefferson was the most
prominent adherent of this view, but many others shared his attitude to
varying degrees. ….
Another, more general manifestation of the same trend has been the
growing power of the phrase ‘intellectual property.’ Before the Second
World War, use of the phrase as shorthand for copyrights, patents,
trademarks, and related entitlements was rare. Since that time, it has
become steadily more common. n105 Today, it is the standard way for
lawyers and law teachers to refer to the field.
Why does the popularity of the term matter? The answer … is that legal
discourse has power. Specifically, the use of the term ‘property’ to
describe copyrights, patents, trademarks, etc. conveys the impression
that they are fundamentally ‘like’ interests in land or tangible
personal property — and should be protected with the same generous
panoply of remedies. ….
Regrettably, the pleas by Cohen and a few others that judges jettison
the concept of ‘property’ and frankly confront the public policy
implications of protecting certain kinds of information fell largely on
deaf ears. The ‘propertization’ of the field continued — and is now
well-nigh complete.
It’s common to read commentary by outsiders — journalists especially –
who conflate all three forms of ‘IP’, and therefore assuming that all
three should be considered as ‘equal’ to physical property. In other
words, they fall into this trap.
In reality, a trademark should have much more protection than a patent;
copyright over ‘bits’ is not the same thing as physical ownership of
atoms; the concept of the public domain is a whole lot different between
‘things’ and ‘bits’; there’s a difference.
To this end, this
disclaimer from the UN World Summit on the Information Society is very
significant; they’ve recognised these issues.
This working group has come to recognize that the term ‘intellectual
property rights’ carries bias and encourages simplistic
overgeneralization. Therefore this working group does not carry the
name IPR. In particular, this group does not endorse the legal school
of thought, which advocates that productions of the mind shall be
treated in a similar way as real estate property. This legal doctrine
implicitly backs the concept that copyrights should last for ever.
Nice work! (thanks to Russell McOrmond and Seth Johnson for noting it.)
Tags: copyright, field, intellectual, patents, phrase, power, property, protection, term, thing, use
