|
|
Can property law principles be applied to IP?
Posted by Anonymous . updated on 2/26/2009
It seems that intellectual property is becoming more and more like 'property' - real and personal property - yet it seems rather unfair since is non-rivalrous. By imposing so many intellectual property restrictions - wouldnt that actually slow down the whole innovation and cultural expression process?
I have been very intrigued with all the legislation and cases in the recent years....
Answers (13)
| |
|
JimIvey
|
I'm having a hard time trying to figure out in what ways intellectual property is not like other types of property. Can you give examples? And, I'm not sure what you mean by "non-rivalrous". Can you explain and/or give examples?
Regards.
|
|
| |
|
peiwen
|
By non-rivalrous - i mean that it is not excludable. unlike real property, say a house, you cannot exclude or stop someone from using things such as information, ideas, concepts, notions. Piracy is clear personification of this.
And if we are to impose IP rights on ideas and information, wouldnt that impede innovation because people have restricted access to information, which could potentially generate More progress and development?
|
|
| |
|
JimIvey
|
Quote By non-rivalrous - i mean that it is not excludable. unlike real property, say a house, you cannot exclude or stop someone from using things such as information, ideas, concepts, notions. Piracy is clear personification of this.
If I understand correctly, piracy renders all intellectual property ineffective. Wouldn't burglary and larceny render all real and personal property ineffective?
Propery is not the right to use anything. If I own real propery, I can't dump tons of cyanide down into the ground water. I can't detonated dynamite yards from by neighbor's house at 3 am. I can't even clear a slope if an upslope neighbor needs that slope for support. All I can do is exclude others from that real property.
Same with personal property. Owning a gun doesn't give you the right to do whatever you want with it. It just allows you to exclude others from using it.
Same with intellectual property. Intellectual property merely allows you to exclude others from buying, selling, making, importing a patented thing or process.
And if we are to impose IP rights on ideas and information, wouldnt that impede innovation because people have restricted access to information, which could potentially generate More progress and development?
Actually, intellectual property is about greater access to information. The idea behind patents is that, without protection, people will just suppress or abandon clever ideas. Suppose you come up with a clever compression tool. Suppose you actually bring it to market. Then, Microsoft incorporates it into its OS and doesn't pay you anything. That actually happened. Suppose you had no recourse. What are you going to do with your next clever idea? Probably nothing.
But, look at this flipside that most people ignore. Remember GIF? Remember it was patented? Yes, "was". The patent expired. Now, it's free for everyone to use. Yeah! And, during the entire term of that patent, people were able to review, study, consider the technology. And design-arounds like to other image compression techniques -- the most directly competitive of which is PNG.
Patents don't last forever. The idea is to induce technical disclosure and then have the disclosure fall into the public domain.
The opposite is happening with copyright. First, copyrights explicitly exclude "ideas" from protection. But Disney, the RIAA, and the MPAA are pretty assuring that copyrights, which are supposed to be for a "limited time", will never fall into the public domain. You'd see an interesting image if you charted laws to extend the copyright term and the various superseded copyright expiration dates for "Steamboat Willie".
Believe it or not, a lot of very smart people worked for a very long time to come up with the system we have. It's not perfect, but it's not completely foolhardy.
Regards.
|
|
| |
|
TataBox...
|
Jim,
If I am correct, I think you and I had this real verses intellectual property discussion a while back. I am not sure where the thread is though.
Regards,
|
|
| |
|
JimIvey
|
Thanks. I have no idea where that might be in here.
Regards.
|
|
| |
|
peiwen ...
|
and tataboxinhibitor,
thank you for your informative comments.
perhaps I simply have not researched and thought hard enough about the resemblance of intellectual property and property, however, I was wondering where does moral rights come in? in relation to intellectual property, is there not an element of moral rights associated with creativity and innovation? how does that translate to property principles? or does it not?
in terms of excludability, many physical objects can only be used by one person at a time. If one person wears a pair of shoes, no one else can wear them at the same time. however, with intellectual property, more than one person can use an idea - a poem, a mathematical formula, a tune, a letter - without reducing other people's use of the idea.
Also, there appears to be distinguishing features between intellectual property and property. for example, patents have expiry dates - once this passes, the information or knowledge becomes common knowledge for public use. however, 'property' rights do not 'expire' as such, they can be abandoned but the right does not fade automatically/by itself.
I guess, what I'm really baffled about is, whether and how intellectual property can be properly characterised by property principles? in your respective opinions, is this the best legal mechanism to protect and promote innovation and creativity? I am partially persuaded by anti-ip arguments that that the rise and tightening of IP law in the recent years is the result of powerful and wealthy individuals wanting to monopolise and capitalise on publicly useful information.
|
|
| |
|
JimIvey
|
Quote perhaps I simply have not researched and thought hard enough about the resemblance of intellectual property and property, however, I was wondering where does moral rights come in? in relation to intellectual property, is there not an element of moral rights associated with creativity and innovation? how does that translate to property principles? or does it not?
Well, I'm not familiar with "moral rights" outside of IP. The only place I've heard of it is in copyright law -- they include (I believe) the right to attribution and the exclusive right to destroy, or something like that. For example, owning a Picasso doesn't give me the right to call it an Ivey or to destroy it. Those rights are inalienable (not transferrable).
In patents, you absolutely must name the correct inventors. That's analogous to the copyright right of attribution.
I'm not sure moral rights exist at all in real property. I suppose in that way, IP is superior to real/personal property.
in terms of excludability, many physical objects can only be used by one person at a time. If one person wears a pair of shoes, no one else can wear them at the same time. however, with intellectual property, more than one person can use an idea - a poem, a mathematical formula, a tune, a letter - without reducing other people's use of the idea.
So, if you're not home, I can walk in and try on any of your shoes you're not wearing at the time? Property rights are not the right to priority of use but rather the right to exclude. If you own a pair of shoes, you can prevent anyone else from wearing them ever -- and you never have to actually wear them yourself.
Also, there appears to be distinguishing features between intellectual property and property. for example, patents have expiry dates - once this passes, the information or knowledge becomes common knowledge for public use. however, 'property' rights do not 'expire' as such, they can be abandoned but the right does not fade automatically/by itself.
Property rights exist for one reason and one reason only -- to benefit the public at large. Why do we have real property? Because no one would develop land (invest in it) unless their exclusive access could be guaranteed. Why do we have personal property? No one would buy anything if they couldn't be assured of its availability and preservation. Would you buy a diamond bracelet if your friend could just immediately thereafter say "Hey! Thanks!" and walk off with it? And, of course, land and things often escheat to the state.
IP has similar inducement. But the end goal is to get the intellectual value into the hands of the public. Hence, expiration (except for copyrights -- they're currently designed to concentration wealth and power into the hands of the few and super wealthy).
<more>
|
|
| |
|
JimIvey
|
Quote I guess, what I'm really baffled about is, whether and how intellectual property can be properly characterised by property principles? in your respective opinions, is this the best legal mechanism to protect and promote innovation and creativity? I am partially persuaded by anti-ip arguments that that the rise and tightening of IP law in the recent years is the result of powerful and wealthy individuals wanting to monopolise and capitalise on publicly useful information.
"Best"? Don't know. I'm not sure I whole-heartedly agree with the policies supporting real and personal property. I think the goals of IP laws generally are admirable and I think they achieve them more or less efficiently -- perhaps better than any other mechanism tried so far.
FWIW, much of the anti-patent rhetoric is coming from large, established companies that would prefer to compete on market power rather than patents. One of the most vocal opponents of patents that I've seen is eBay. Guess what, they don't own many but they like to use innovations of others and often are faced with threatened patent enforcement. Who are the patent owners asserting rights? Other big companies? Nope, "patent trolls", i.e., individuals or small startups that tried to get their idea on the market and were bowled over by eBay and other large companies. So, if you really favor the little guy over large companies, you should fight for strong patent rights.
There's one place where that analysis gets turned on its head -- open source software (OSS). Software engineers write stuff on their spare time and give it away for free, more or less. They fear the threat of being sued for patent infringement.
I understand the concern. I'm a former software engineer myself. And, I used to ride mountain bikes in the regional parks out here in the Bay Area. Regional parks our here are huge preserves of the natural ecology -- for watershed reasons, I believe. I'd be riding along a great trail and them come up to a fence. What's this?! The end of the park and the start of private real property! How could they do this? How can anyone own land? That's like owning air and even life itself! It must be free to all! OSS developers feel the same way.
Yet, many of the OSS developers have day jobs at companies that rely on strong patent protection for their very existance. So, patents are good for their employer but not good for themselves. You can't eat your cake and have it too.
For what it's worth, I've never heard of a single patent ever being enforced against a single OSS developer. I've heard of threats made against aggregators of OSS, but those threats went away.
And, for the mountain biker, what if all restrictions on land use went away? My pristine rides in the hills and mountains would be cluttered with the obnoxious noise and smoke of 2-stroke offroad motorcycles and ATVs.
Regards.
|
|
| |
|
Peiwen ...
|
"Property rights exist for one reason and one reason only -- to benefit the public at large. Why do we have real property? Because no one would develop land (invest in it) unless their exclusive access could be guaranteed. Why do we have personal property? No one would buy anything if they couldn't be assured of its availability and preservation. Would you buy a diamond bracelet if your friend could just immediately thereafter say "Hey! Thanks!" and walk off with it? And, of course, land and things often escheat to the state. "
Given your analysis, if property rights exists for public benefit, IP law thus came into existence in response to the needs of moden society. It is law shaped by the goverment - via patents, trademarks, copyrights - to respond to needs of society - since technology and information systems are making up the greater of the world's wealth.
If IP law exists for one reason only - to benefit the public - cant it also be argued that IP law exists to benefit individuals? given the basis of our law system is the western liberal theory, which centres around the individual? Isnt property and intellectual property about the feasibility of limitations on others' freedom of action?
Also, looking at distinctions between IP and property. Isnt IP a negative right, whereas, property is a positive right? Real/personal property are not fruits of people's labor - rather they are 'created' rights, to exclude and generate incentives for people to invest their time and effort. In your example of a diamond bracelet - property rights protect the 'individual' - not so much the public at large. perhaps public benefit is generated because buyers get to keep their products, hence they will buy more, therefore sellers can sell more - so greater productivity and efficiency is generated overall. However, it is the individual who gets protected.
on the other hand, IP rights are negative rights - because in contrast to real/personal property, intellectual notions are the product of human creativity. therefore, ip laws give you no new freedom, but merely the ability to prevent others from soemthing they would otherwise be allowe to do. it gives one individual full control of a whole market. Of coure, arguably, most 'individuals' as such work for companies and employers, therefore, we're not so much speaking of the 'individual' human being. but perhpas, i can refer to it as one entity, one corporation - owns a patent, copyright, trademark. Is it arguable tha intellectual property is not about rights to control one's idea, but really, it is about your right to control someone else's copy of your idea? ordinarily, with property law, you cannot control another person's usage of real/personal property. for example, i can control my rights over my shoes, but if you take my shoes, i cannot control the way you wear it.
|
|
| |
|
JimIvey
|
Quote If IP law exists for one reason only - to benefit the public - cant it also be argued that IP law exists to benefit individuals? given the basis of our law system is the western liberal theory, which centres around the individual? Isnt property and intellectual property about the feasibility of limitations on others' freedom of action?
Sure. Anything can be argued. It can be argued that Adolf Hitler and Pol Pot were both great philanthropes. It can be argued that human experience of time is actually backwards to the way time exists in the universe. It can be argued that UFOs are actually humans from the future with the ability to travel time (I've actually heard that one).
I'm not a policy maker or a law maker. I just do my best to understand the rationale behind the law as it exists to the extent it's useful in understanding the overall structure of the law.
Also, looking at distinctions between IP and property. Isnt IP a negative right, whereas, property is a positive right?
No, absolutely not. All property rights are negative rights -- the right to exclude others. All property rights -- intellectual, real, and personal -- share the same basic rationale, namely, the right to exclude makes investment in the object of the property rights less risky and therefore encourages such investment.
Regards.
|
|
Related Questions
 |
so i have an idea, but i dont know if it is patentable. so i should talk to an intellectual property lawyer, right? but how can i trust him? like lets say i tell him my idea but i chose not to work with him,... Read More |
|
i developed my own system of self defense years ago and it is in use. I gave it a name. What do I need to do to legally protect myself from others that would try to lay claim to it? Read More |
|
i am a 21 year old who has come up with a world changing invention that can potentially save thousands of lives and i need to know what i have to do to make sure no one steals my idea. i have never invented ... Read More |
|
I developed an innovative bioanalytical methodology using existing instrumentation but customized the instrument configuration and wrote a macro for the automation, while working as an employee of a biotech ... Read More |
|
Ive got a new idea and I don't know where to start! I have contacted a few places e.g Patent & Trademark of America..but people are asking me to send my idea in.my question is who can i trust? and i dont kno... Read More |
Page 1 of
2
|
12
|
|
- Patent Express is the fastest and easiest way for an individual inventor to file a U.S. Patent or Trademark Application.
- Patent Express fills the gap for those who cannot afford a U.S. patent attorney or agent, but want to have their patent drafted and issued.
- Patent Express is backed by a 100% money back guarantee.
|