Structures of Intellectual Property

PeterP writes: "ARSTechnica has an interesting editorial today. It advocates altering the discussion of intellectual property laws to be one of structures, as opposed to rights. Kind of a breath of fresh air from the dogmatic, kneejerk debates this topic usually brings up. An interesting read, too." I second that. Definitely one to read and think about.

Comments

place problem not structure

[Papa Legba]

One of the core reasons that IP law is breaking down so much is the level that it has been subverted by corporations, the very thing it was invented to stop! The orignal idea was that invetors and creative people would be protected from theft from corporations. If you invented something you got to have the rights to it. you could sell the rights but they could not be stolen from you. This was desinged to protect people like the person who invented the paper clip. He desinged the paper clip to pay off a debt and was payed the total sum of $400 for the idea. It has made the people he solled it to millions of dollars since then. Because he did not patent the idea he gets nothing.

I think part of the problem would go away if we mandated that corporations cannot have patent and IP rights, they can only be assinged to real people. That way corporations will stop this nonsense of making you signe your IP rights away to them when you work for them. This would have a two fold effect:

1.) truly brilliant people who are inventive would be rewarded. These people would become like athletes as they became more desirable as the number of core patents they hold increases. If a company wanted to produce something they would have to hire the person that held the IP or the patent. This would cause a great demand for these intelligent people and give a large shot in the arm to pure research and people wanting to go to school, If it becomes as lucrative and glamorous to be a scientist as it is to be a basketball player.

2.) Companies would be a lot slower to patent trivial things that they use. The fear would exist that when the person leaves that holds your trivial patent it will become just as dangerous to you. Campanies might try to get around this by having their intellectual property assinged to people like the CEO but you would still face having to buy the rights back to transfer them to someone else in the company (pricy) or risk having the CEO leave and screw the company over. This would lead companies to conclude that frivolous patents where dangerous, and that having the necesary ones spread out in a corporation would benefit them.

Just my two cents

Utopian Visions?

[Alien54]

The author has this bit on the next to the last page about WIPO. It starts what could be a called a utopian vision. I guess it is important to remember that this is not impractical, that it could be achieved, and is therefore not utopian. But it will take people with bigger souls than are working in WIPO than are currently there.

It is certainly worth thinking about.

Let's take a look at some of the values implicit in the WIPO's vision:

• Content producers should be paid for their work.
• Those who contribute to the production and distribution of content (investors, distributors, etc.) should be compensated.
• Existing power arrangements (i.e. between content producers and middlemen, between G8 and developing nations, etc.) should be maintained.
• The protection of commercial interests through universal compliance with the IP regime should override humanitarian considerations, ethical considerations, or ease-of-use considerations.

I don't have a problem with the first two values, but the last two really stick in my craw. Furthermore, the list is telling for what it leaves out. Consider the following values that would be expressed in an ideal intellectual property regime if it were up to me:

• The possibility of being a content producer should be open to everyone, and not just the few who can afford to buy their way into the game.
• Content producers should be paid for their work.
• Those who contribute to the production and distribution of content (investors, distributors, etc.) should be compensated.
• The cost and hassle of being compliant with the IP regime (i.e. compliance with national laws for IP protection) should always be less than the cost and hassle of being non-compliant.
• The public should have ready access to products of the intellect, regardless of social location.
• The capabilities of digital media for archiving and distribution should be fully exploited for the good of the many, and not artificially constrained by the interests of the few for the purpose of maintaining existing power arrangements.

Re:Double standards

[kurtism]

As much as he want to change the vocabulary used in the IP debates, in the end it is a boolean arguement: Either there is or there is not Intellectual Property. True or False.

This is just false. No discussion of intellectual property is absolute. A good example is public libraries: one doesn't think twice about photocopying the information available in a book in a public library because what is contained there is _information_. We have recognized as a culture that access to that kind of information is important to all citizens in order to be capable citizens of a free society, and thus libraries are accessible to everyone for not much money.

So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. People in the IP discussion of software should make themselves more familiar with the discussion surrounding the creation of libraries. People in the IP discussion about music/movies/etc will not benefit from this analogy, though, since the content produced there is primarily entertainment - not information.

Structures without rights?

[CaseStudy]

I see the point, but I think the approach is wrong. I don't think the problem lies in a rights-based approach, but in the fact that only one group's rights are being acknowledged. At least, this seems to be the author's problem (and mine) with WIPO. But a lopsided definition of rights is not inherent to the approach.

I also think there's a danger to a structure-based approach, which is that rights can be even more easily forgotten when a legal structure is based on something other than rights (e.g., economic efficiency). The standard criticism of utilitarianism then applies--that the rights of the minority can be breached if their violation sufficiently benefits the majority.

Re:Double standards

[evvk]

> So, you can see, there are in fact examples in which our current culture _already_ balances the rights of content producers with the rights of the content consumers. ... People in the IP discussion about music/movies/etc will not benefit from this analogy, though

I don't know about the US, but in Finland we do have music in public libraries and it is perfectly legal to make a copy of what you have loaned. But I wonder how long given the current trend and Euro-DMCA. Indeed, I seriously doubt that if libraries were invented now, not in the distant past, that they'd ever become anything more than just an idea.

Balance

[gillbates]

What we need is balance in IP. I think that rather than owning an idea, one should have commercial rights to the idea - that is, you don't have the right to prevent me from using your idea in my software, but you can expect royalties if I make a profit off your idea. Same goes for copyright - you can't restrict me from copying your work, but if I charge for it, I owe you a royalty.

How about benefits

[blamario]

I agree that rights discussins are not very constructive, but I still don't see how is the structure discussion going to help. People tend to care about rights more than about these "structures". It's obvious from the article that the author didn't get very far with the structures.

What I'd like to see is a thorough comparative analysys of the practical benefits and problems (i.e. consequences) of different approaches. Media conglomerates claim the civilisation will return to the stone age with no intellectual property. FSF on the other hand claims invention will flourish. Is there no way to find out?

Wilderness, Indian analogy

[ka9dgx]

I see this as a very similar situation to the Indians and Eupopeans in early america... we're the Indians, who share the land, and think of ourselves as belonging to the land, and can't even concieve of owning it. The corporations are the invaders, and will do everything they can, including passing out blankets with smallpox, to get rid of us.

It's war... undeclared, but war, none the less.

--Mike--

Be careful what you wish for

[CommieLib]

The overriding concern to which citizens should adhere when deciding on how a society is structured is the question, "What incentives do we wish to create?" The Slashdot crowd seems to be overwhelmingly anti-intellectual property rights; I'm not sure whether it has adequately examined the consequences.

Consider the ideal pursued by many in the debate right now: total and absolute freedom of any idea. The inescapable consequence is that the ability of any one individual to capture benefits from that idea is gone. Thus the driving incentive to develop ideas is gone; I personally love studying astronomy, but I'm a programmer to pay the bills because I cannot feed my family on looking through a telescope.

So the paradox is that a society that jealously guards the rights of intellectual authors benefits the most from those ideas.

Here's a quote from another post:

The current IP regime is preventing inexpensive anti-AIDS drugs from being developed in Africa.

Consider the reality of the situation: a drug company spent millions of dollars to develop that drug for the purpose of making money. Maybe we wish they did things for different reasons, but unless we're willing to send their kids to school, it's really none of our business. If we abolish their intellectual property right to a particular AIDS drug, we gain the one drug for free use in Africa...but we can be sure there will never be another AIDS drug produced by that company.

The painful reality is that the profit motive is the most powerful transformative agent in the world. Abolish intellectual property, and you risk abolishing the benefit we derive from them.

One Problem

[Agarwaen The Tired]

I agree with the basic premise of the article that those of us concerned with IP of the individual nature should be working toward creating structures that clearly define what's legal and what's not with the large corporations. However, We are a small minority. We are fighting corporations with BILLIONS invested in this area. Our only leverage is our rights which are defended by the Supreme Court. So yes I agree with you, but I think it's as likely to happen as stopping a war by getting everyone to hold hands and sing.

Nobody to blame...

[nanojath]

But ourselves. All the talk is fine and well but the problem is almost nobody even THINKS aobut IP issues. So the laws get worked out between the politicians who have made a career of convincing us that they are the only choices we have for representation and the monied interests who have cleaned up by convincing us they're the only game in town.

And so as Balinares astutely points out, we have a situation of a large group of consumers freely giving a chunk of their income to a record label or software corporation or movie studio, who give us a product that they "produced" (that must be the most abused concept in IP) by handing a small percentage of what they got from us last week to artists and crafters who have freely signed away their rights to ownership or significant income from the products of their labor.

What's wrong with this picture? What's wrong is that its all free. Sputter sputter yeah, but... But nothing. We make these choices and we pay for them.

Any abstract discussion of intellectual property is moot because of a simple fact: The price of freedom is ETERNAL VIGILANCE. A good constitution won't purchase your freedom. Better IP laws won't preserve your freedom. The reasons our freedoms are being abused is because we are lazy. Sony or M$ or Time-Warner-AOL offers us a sugary snack in the palm of their sickly hands and we eat it right up. The USA political machine offers us two bought-and-paid for suits in the most money-saturated presidential election of all times and we obediently fight each other over which stay-the-course status quo asshole will fuck the average citizen further into the ground for the next four years. We deserve what we're getting. Even among those of us who know better most cannot be roused to write a letter, boycott a product, or even vote.

Why corps MUST be allowed to own IP rights

[nels_tomlinson]

I don't think that in general we should assign right to IP. But there are specific cases in which it is best to do so, and when we do assign such rights, it must be possible for corporations to own them.

There is a common misconception in the old Soviet Union: we'll have a free market, we just won't let anyone have property rights, because that's not good socialism. Of course, you can't have a market without property rights.

The problem with the suggestion that ...corporations cannot have patent and IP rights, they can only be assinged to real people. is that if you can't sell your rights, they have no value. Period. If you can only trade these "rights" among individuals, then you restrict the market to folks like you and me. I certainly wouldn't pay $400 for the rights to paper clips under that scenario. The only way that a corporation could justify paying for IP would be if it was assigned to someone who is a majority stock-holder. As you point out, why buy your engineer a patent if he can walk off with it? Buying the patent for someone who is contractually bound to stay or sell the patent back seems pretty shady. If that doesn't violate our hypothetical law, it should.

But one could license the rights to a corp, you respond. Fine, how about exclusive rights to use and sub-license, irrevocable, for the term of the patent? How is that different from an outright sale? It seems to me that this is really all-or-nothing: either you are free to dispose of your invention as you see fit (assuming that we are going to assign property rights at all) and it has value, or you aren't, and it doesn't.

You point out that

truly brilliant people who are inventive would be rewarded. These people would become like athletes as they became more desirable as the number of core patents they hold increases.

This would work fine for folks who could innovate on their own, but how about engineers and geneticists who need multimillion dollar facilities? How could a corp justify paying out tens of millions for someone to develop a patentable invention, which they could then walk off with? Again, contractual ties which bind the rights-holder to the corp are no different than outright assignment to the corp.

I believe that there is no natural right to intellectual property. That's exactly opposite to the situation with physical property, where there certainly is such a natural right. The difference, of course, is that physical property doesn't copy well: if I eat your hamburger, you can't. If I use your idea, you can too. All you have lost is the monopoly.

For all of human history, we have built on the intellectual shoulders of those who came before. It is right and natural that we should share ideas, and we are all better off when that happens. In order to encourage that, the US constitution (Article 1, Section 8)gives Congress permission

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

This was obviously to work in the public interest, by encouraging productive work and its public disclosure. Enriching inventors is plainly not the aim. Nor does it suggest any pre-existing natural right.