Talk:Intellectual property/Archive 1

This is an archive of past discussions about Intellectual property. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 1

Archive 2

Archive 3

Proposed revision

The article is indeed becoming very long. One of the main reasons is that it includes certain topics which, strictly speaking, are not part of Intellectual Property, but of Industrial Property. I´m trying to start a discussion about revamping that particular subject, so I won't elaborate on the matter on this page and at this point. However, I do believe that moving the items patents, trademarks, designs to the article on industrial property would help. As a bonus it might solve some of the edit wars and POV/NPOV battles raging here. (Sorry for cutting in at the top.)--VLH 02:43, 28 June 2006 (UTC)

I apologize for jumping in at the top, but I would like to propose a resolution to the problems discussed here. People are battling over the right to define "intellectual property" as they see fit. But remember, Wikipedia is not a dictionary (see Wikipedia:What Wikipedia is not). It's an encyclopedia. We don't have to battle over the definition. We DO need to tell our readers that there IS a battle!

NPOV does not ask us to hide controversy -- on the contrary, it asks us to bring it out and describe both sides with fairness and objectivity. In other words, the fact that the term "intellectual property" is controversial is important, and needs to acknowledged close to the lead paragraph.

Please consider the following (revised 11/24, in light of comments below from 81.138.5.83). Regards, Bryan 16:32, 24 November 2005 (UTC)

DRAFT

Intellectual property (IP) refers collectively to the legal entitlements granted to commercially valuable products of the human intellect, including inventions (protected by patents), literary and artistic works (protected by copyrights, trademarks (protected by trademark law), trade secrets (protected by trade secret law), product packaging design (protected by trade dress law) and public personae (protected by right of publicity). Internationally, IP laws vary, sometimes considerably; the World Intellectual Property Organization (WIPO) administers 23 treaties that are intended to harmonize the IP laws of its 182 member nations.^[1]

In widespread use only since the 1980s, the term "intellectual property" encompasses a variety of legal concepts that only partially overlap.^[2] For example, in the U.S., patents are protected by Federal law and are limited in duration, while trade secrets are protected by state law and are perpetual (unless the secret is divulged to the public). One characteristic shared by these entitlements is that they are intangible rights that cannot be seen or touched: for example, a copyright is not the same thing as a copy, and a patent is not the same thing as an invention. Intellectual property is therefore contrasted with tangible property, such as real property (for example, land, houses, and buildings) and personal property (for example, jewelry, furniture, and automobiles). Like tangible property, intellectual property rights can be transferred by means of a contract, including employment contracts, so that the creator is not necessarily the owner.

(note: the following needs to be expanded and documented)

Controversies over the use of the term "intellectual property"

Critics of the term believe that the term intellectual property should not be used. They believe that it wrongly conflates copyright and patents -- rights that are limited both in scope and duration, and therefore distinguishable from tangible property -- with trademarks and trade secrets, which are less limited in scope and (with certain exceptions) unlimited in duration.

This controversy stems from a deep-seated disagreement between those who view intellectual property as a set of limited (and temporary) incentives, which are designed ultimately to benefit the public by creating public goods, and others who would prefer to remove all such limitations, such that all forms of intellectual property (including copyrights and patents) would become indistinguishable from private property. Advocates of the IP-as-public goods viewpoint tend to view the term "intellectual property" as an underhanded strategem that is intended to disguise or obfuscate the limitations place on copyrights and patents. Still, most who use this term do not intend to take sides in this controversy; they may not be aware of it. They merely find it a convenient method of referring en masse to a variety of rights that issue from intellectual creativity. Rightly or wrongly, the concept of "intellectual property" as a catch-all term for all products of the human intellect is well established (for example, in law school curricula, legislation, and international agreements).

...

References

^ WIPO-administered treaties.
^ William Fisher, The Growth of Intellectual Property: A History of the Ownership of Ideas in the United States.

I think the article should go on by discussing these two sides with fairness and objectivity. A lot of the reverted edits are actually very useful, and could be plugged back in under their respective headings (something like "the public benefit view" and "the private property view").

So -- we have a lot of work to do! Let's get to it! Bryan 16:01, 17 November 2005 (UTC)

I also propose to cut most of the existing text, which is (as reviewers have pointed out) less than satisfactory. I'll keep this note up here for a week or so before attempting this revision - if anyone objects, say so, please.Bryan 09:09, 20 November 2005 (UTC)

IMHO, any significant discussion on controversy at the beginning is at best inappropriate, especially with regard to the term itself. Basic information on the subject matter must always be presented first and in detail, before any significant discussion on issues of controversy. Your approach is laudable...but the proposed revision seems to reinstate the primacy of content on critique in a major way, and not to deal with the points which you say call for changes. 81.138.5.83 00:04, 24 November 2005 (UTC)

I think you're right - I've edited the above. Note too that inserted links to the main articles. One of the problems with this article has been that people were arguing over concepts that apply, say, to patents but not to trademarks; to prevent confusion, those issues should be addressed in the main articles, not here.

I'm glad to see someone is brave enough to try and improve this article, and I do find the proposed version a significant improvement. I'm not sure I agree that trademarks and trade secrets are less limited than patents and copyrights, though. They are differently limited: trademarks need to be defended or they will be lost (cf. Genericized trademark); trade secrets are even more brittle, and there's little protection provided by law. Also, the intentions behind the creation of those rights were different (copyright and patents as economic incentives, trademarks as consumer protection). However, the argument that very different concepts are lumped together still holds. 83.78.18.246 22:44, 7 December 2005 (UTC)

There would be certain tweaks I'd make but in general I also support the thrust of your revised proposal (to distinguish the different forms more clearly, but not to reintroduce critique, particularly with regard to the actual term). 203.198.237.30 07:31, 8 December 2005 (UTC)

This article is a long way from neutral

I don't think this article does much credit to Wikipedia: it's a long way from NPOV. To take one example, it is not remotely NPOV to say "The term glosses over fundamental distinctions between types of exclusive rights such as copyright and patents, and encourages authors and inventors to regard these rights as natural rights". You might believe it, I might believe it, and the majority of people who write Wikipedia might believe it, but there are lots of people that don't. Basically, the article is reflecting the particular viewpoint of Wikipedia authors, rather than being a neutral presentation of the subject. We all need to do a bit of "writing for the enemy" if these sorts of biases are going to be eliminated. Enchanter 21:10, Oct 24, 2004 (UTC)

I've moved this comment to the top of the talk page, as I've added an NPOV tag to the main page. Mk270 22:09, 1 Nov 2004 (UTC)

Here are the POV/factual problems I feel exist in the current version of the article:

the article keeps getting diverted by the term "intellectual property", in particular with the arguments against the use of the term itself, to the exclusion of arguments about the justification for that which is connoted by the term
the assertion that information is non-rivalrous in consumption is presented as an argument against the term "IP", whereas it's a matter of economic fact, with no terminological import
the article uses the term "exclusive rights", without qualification, to mean something similar to the term "IP". Exclusive rights subsist in both tangible (land and movable objects) and intangible goods, but nowhere is a phrase such as "exclusive rights in intangible goods" used. Were such a phrase used, it would give the lie to the contention that copyrights, patents and trademarks and so-on don't hang together as a category
in an article so preoccupied by attacking the terminology of IP, where is the counterbalancing "arguments in favour of the term" section?
are trade secrets really IP? how many of the things listed in "types of IP" are really IP? parallel importation is surely not a "type" of IP?!
"exclusive rights are generally divided into two categories: those that grant exclusive rights (in copying) and (those that grant a right to prevent others from doing things)". This is just rubbish. Not only does it suffer from the conflation of "exclusive rights" with "exclusive rights in intangibiles", but the first of these proposed categories is a subset of the second! Moreover, it is false to assert that this categorisation is "general" in any sense.
The passage "There is no more bizarre concept in the world of exclusive rights than this one, that because of an economic argument, we must restrict public uses of published data in a database since the creator of that collection of information invested effort in its production. " is shockingly POV, which is a great pity as the first twenty words or so are a very attractive use of English syntax.

It is sad that this article has got into this state. Like the other person complaining above, I write these criticisms of the article as someone who disagrees with current levels of IP protection (I sit on the board of one of the member organisations of one of the organisations listed as being critical of IP policy - happily not a link I had to add by myself)

Mk270 02:42, 2 Nov 2004 (UTC)

Why isn't the IP debated founded on a philosophical definition of intellectual property? Without linguistically analyzing the concept, the progression of the debate will not resolve the misunderstanding and contrary positions taken on IP in general. I think a brief introduction to the etymology of the term and the opposing interpretations of it should be at the very beginning of the page. Because the mere use of the term itself is highly conroversial, describing what IP is before introducing the controversy and the etymology favors one side of the debate. Just using the term itself is prejudice. Many uses of the term presuppose controversial propositions. It's like having a wiki page on "Godless Communists" or "Greedy Jews." Starting with the conroversy and etymology, and then concluding the intro with a precise, philosophical definition would allow users to more easily provide a rational basis for their views...I am still not convinced that "intellectual property" has any rational basis, but convincing arguments based on precise language could turn the table. -John Gilmore

Intellectual Property is a non-scientific term that comprises many conflicting areas of law.

This comment is difficult to understand. (1) Legal terms are not scientific; they are legal. (2) "Intellectual property" is standard usage. (3) Intellectual property includes (but does not comprise) several different doctrinal subtopics, such as patent, copyright, and trademark. (4) The different areas of law that make up "intellectual property" law do not conflict with each other. User:Lsolum

I suppose there's a place for this commentary somewhere; at least it's interesting enough that I didn't want to delete it:

The Icelandic word for property is the same as cattle, "fe". A corporation is a cattle-team, fe-lag. As an opposite to this bovine stupidity, most new companies on Iceland and elsewhere are now based on intellectual property such as trade secrets, patents, copyright, and trademarks.

The first statement claims that law treats intellectual property rights as "property". Is that completely true? For instance, if I steal your patent, will I be prosecuted for theft of property?

Also, if you own something, you own it forever; intellectual property rights are often granted temprarily only.

I think they qualify as property in the sense that they can be bought, sold and rented. But in other respects, they are unlike physical property and don't enjoy as much protection. For example, with intellectual property, you often have to sue in civil court if it was "stolen", but with physical property, the state does the dirty work for you. --AxelBoldt

'IP' isn't property under any law I know. Breaking somebody's IP is nowhere prosecuted under theft laws. IP is limited temportary monopoly, similar examples are ex-state ex-monopolies have in some countries. For example in Poland, TPSA has temportary monopoly for some phone services. That's something similar. --Taw

Police and customs agents certainly enforce intellectually property rights when the impound goods for copywrite infringement like video and cd piracy, imitation trademarked goods, etc. And I presume that those caught are prosecuted, not just sued. --rmhermen

I am not sure that a "trade secret" should be included as intellectually property in the same way as patents, trademarks and copyrights. Patents, trademarks and copyrights are all rights governed by legal statutes and conventions as to nature and time of protection. All allow the owners to sue in a court of law someone who violates these rights. A "trade secret" by it's very nature is something which is protected by not being disclosed. If someone finds out, it is by definition no longer a secret. The protection of a "trade secret" is through contract law - and that only applies to those parties agreeing to a contract. I do note that online some lawyers do seem to refer to "trade secret" as intellectually property and make the case that people can be prosecuted for unauthorized disclosure of a "trade secret".

I think that it might be useful here to have some discussion of the history of intellectually property law - both in the United States and in other countries.

Trade secrets are not exclusively protected by contracts: there are also laws on the books protecting trade secrets. For instance, if you get a letter by mistake containing the secret formula used for Coca Cola, then you are not allowed to publish that letter. --AxelBoldt

They're usually considered part of "intellectual property" because of their nature, even though confidential information, at least in common law jurisdicitons, isn't capabel of owenership, just the equitable relief of prevention of dissemination. - David Stewart 05:10, 18 Aug 2003 (UTC)

Some people use the phrase "some people" too much. --LMS

I moved the following out of the article:

For an effective informal system of protection of intellectual property, see Clown.

This might be useful information for a section on non-government forms of copyright. You could also throw in a whole lot of other examples. But as an unexplained "see also", it's confusing. Dachshund

I put that in. Did you follow the link? The clowns protect their intellectual property in an effective, informal way. I see nothing confusing about it, and I certainly think there is room in the article for that one sentence. Don't you think it is stimulating for one reading up on intellectual property? Why not throw in the other examples? A lot of people are coming to think that the whole notion of intellectual property is pernicious. To have examples of systems that are not money-grubbing and suppressive, but simply serve without coercion to protect what belongs to someone, seems quite appropriate.Ortolan88

I did read the Clown article. And I agree that non-governmental schemes of IP protection are relevant. But the link wasn't explained, and it seemed really jarring. I'll add the link back in, perhaps with a slightly more informative explanation. Dachshund

This article could really use a History section. Perhaps Etymology could be changed to History and folded in with the last paragraph, along with some info on the Statute of Anne, etc. I don't have time right now, but if anyone else wants to... Dachshund

Despite what the article says, copyrights and patents do give monopoly power. Only the author of the article or the owner of the patent can give rights to use/copy the work. One person/company who can sell the rights is by definition a monopoly. ACoward.

If the owner of a patent grants on or more people unrestricted rights to their property, (perhaps in return for payment) then there is no longer a monopoly. However the owner still owns the patent. DJ Clayworth 15:21, 8 Aug 2003 (UTC)

Copyrights and patents grant monopoly power. Some rights holders may choose not to exercise that power, but that doesn't mean it hasn't been granted to them. Dachshund

The monopoly power myth is something that every intellectual property teacher corrects. Most IP does not create a monopoly in the economic sense. If I copyright a movie, I don't have a monopoly in the market for motion picutres. This is because of cross elasticity of demand. If I try to raise the price for my movie, consumers will shift to other movies. Even if the owner of a copyright or patent does not license to others, there is still no monopoly in the standard economic sense, unless the product is so differentiated that there consumers will not shift to alternative products. This may occur with a revolutionary new drug. User:Lsolum

Though your teacher's example (copyrighted movies) seems benign, real IP monopoly power is distressingly common. Particularly now that business method and software patents are recognized by the USPTO. You don't have to invent the next revolutionary cancer drug; you simply need to patent a very basic and important piece of technology that's almost impossible to work without.

Furthermore, even copyright monopolies have been possible. For years, governments allowed private publishers to draft copyrighted legislation. This gave these publishers an undeniable monopoly power over the reproduction of that legislation. What are you going to do... switch to the other brand of law? Fortunately, many of these situations have been rectified. Dachshund

Most IP does not create a monopoly in the economic sense? That is the very purpose of most IP! If you copyright a movie, you don't have a monopoly in the market for motion pictures, you say. But you didn't copyright motion pictures, you just copyrighted a motion picture. Thus people have to pay your price if they want to see your movie, which would not be the case if you had no monopoly over it. The very fact that consumers would even tend to "shift to other movies" if you raised the price for your movie demonstrates that you have a monopoly in the "economic sense", just as the fact that you could deliberately lower the price to increase demand demonstrates your economic monopoly. And I don't see anyone arguing that a copyright on a movie gives one a monopoly over motion pictures, any more than a (for sake of argument) monopoly on french fries gives one a monopoly over food. Authr

This is the opposite of how "monopoly power" is defined in American law. In a non-monopoly situation, it is assumed that if one producer raises prices, then consumers will begin shifting to competitors. This is no power at all. Monopoly power is the power to raise prices and keep all the consumers, because they have no other place to turn.Acsenray 21:15, 23 June 2006 (UTC)

We seem to be talking past one another. You say cite the example of business method & software patents, but do not give examples of monpoloy power in the economic sense. Very few business method patents create monopolies. Software patents sometimes are associated with monopolies, but it is important to sort out network effects, i.e. MS Office & Windows.

The problem here is in our definition of what constitutes a "monopoly". I would personally consider a company to have monopoly power if they held a business method patent that barred other companies from engaging in a useful, if specific application. For instance, running online auctions.

Your teacher might hold the view that this doesn't really constitute a monopoly; that people could simply find other ways to do business over the internet. Ultimately that's the problem with any attempt to precisely define something as subjective as "monopoly power". If you simply adjust your context a little, you can come up with any conclusion you want. Does Major League Baseball have a monopoly? Many would say absolutely-- they even had to be specifically exempted from Antitrust legislation because of this. Someone like your IP prof might disagree, and point out that there are other leagues, even other sports to watch-- football, for example. Can you say definitively that either position is right, or are they just different ways of looking at the same issue?

The difficulty is in determining how specific an industry's business domination must be in order for it to be a monopoly. This is so subjective that even the Supreme Court has a hard time consistently making this determination. If only we could all be as confident as your IP professor. Dachshund

Actually, I am the IP Professor. The line I am taking is just the standard line. It's in the textbooks. It's just the conventional wisdom. IP does not, by itself, create a monopoly or monopoly power. Sometimes it does; usually it doesn't. Online auctions could well be a case where a business methods patent creates monopoly power, but one-click clearly does not. User:Lsolum

I don't understand this line of argument. Anyone who wants to set up a website with one-click technology has to get a licence from Amazon, the owner of the one-click patent. The equilibrium price of such licences in a competitive market with no monopoly power would be equal to the marginal cost of producing these licences, i.e. approximately $0. Amazon, to maximise its profit, must price the licences as any profit maximising monopoly supplier would, and charge a positive price to maximise its revenue. This is a straightforward application of basic textbook economic principles. In what way is it "clearly" not an example of a monopoly and monopoly power? Enchanter 23:39, 28 Aug 2003 (UTC)

Cross-elasticity of demand. Because one-click competes with other methods of completing transactions, raising the price for one-click causes the substitution of other technologies. Amazon.com does not have a monopoly in eCommerce or eCommerce transaction technology, even though it controls one method for completing eCommerce transactions. It would be helpful if those who participate in this discussion would at least READ THE LITERATURE before contributing. The point we are discussing is whether ALL IP CREATES MONOPOLY POWER. The answer is not controversial. It is no. This is a basic point, made in many articles, texts, courses, etc. The article can carefully point out the sense in which patents & copyrights create a kind of monopoly, but it should accurately reflect the current way these terms are used in the literature. User:Lsolum.

It seems that the word monopoly is being used here in it's legal/economic definition, i.e. in relation to an industry. So, you can say that one-click does not imply monopoly power because cross-elasticity of demand allows the eCommerce transaction technology market to remain competitive and vibrant. However, I don't think that a topic such as IP, while no doubt interrelated to economics (as almost all things are) has to be discussed only in specific economic terms. The Merriam-Webster definition for a monopoly is:

1 : exclusive ownership through legal privilege, command of supply, or concerted action

2 : exclusive possession or control

3 : a commodity controlled by one party

4 : one that has a monopoly

These are the most common meanings of the word monopoly, and it clearly applies to IP. I think if you are talking about a term in reference to a strict scientific definition that differs from every-day use, it should be stated explicitly. As you said:

"it should accurately reflect the current way these terms are used in the literature"

I don't think we should assume that the reader is aware of the curret legal/economic definition. Perhaps a paragraph explaining the differences between the common meaning of monopoly (exclusive control) and the legal/economic definition that you are using, or some text explaining that we are using the strict economic definition of monopoly, and to read the [monopoly] page for more info. Milquetoast 06:21, 11 Sep 2003 (UTC)

Lsolum, what this has highlighted is the need to distinguish between a monopoly in a specific work, a monopoly in a specific class of a work and a monopoly or near-monopoly in the economic sense. Someone who wants to make Mickey Mouse movie is going to hit a monopolistic prohibition if that movie has the character acting in a way Disney dislikes, unless they carry that behavior so far that it becomes parody and they have the money to take the case to the Supreme Court. JamesDay 18:54, 13 Nov 2003 (UTC)

I agree with JamesDay: copyright might not grant a monopoly in a class of works, but it certainly does grant a monopoly in the author's own work. Compare Jane Austen and J K Rowling: no (UK) publisher currently has a monopoly in Jane Austen's novels, because her copyright has expired. In contrast, Rowling's publisher does enjoy a (very lucrative!) monopoly in her work. It all depends how fine your resolution is in terms of the goods in which the monopoly is enjoyed. --Gordon 11:52, 25 Jun 2004 (UTC)

This article has really blossomed. However, it's also become a lot less readable, with a two-line introduction followed immediately by extremely detailed and specific analysis of the economic impact, etc. Would anyone object to shifting the article around so that (for instance) the different types of IP are explained before we start analyzing them in depth? Dachshund

I would certainly support this change. This entry has lots of good material, but it is now a bit disorganized & definitely needs a more informative introduction.

The latest changes by enchanter are quite helpful & move the article forward. Thank you! User:Lsolum

I have written a short essay on potential alternatives to intellectual property - find it on User:Gingekerr/Intellectual_Property_Essay. Perhaps some of it is suitable for inclusion into the unfinished section on alternatives in the article - I didn't want to rush straight in on such a contentious topic without getting the opinion of the rest of the community. As for the above discussion, I have assumed in my essay that intellectual property constitutes monopoly power.Gingekerr 21:07, 21 Mar 2004 (UTC)

I find it interesting^whumorous to see an article essentially positive towards "intellectual property" on a site licenced under the GNU FDL. The FDL is not contrary to intellectual property per se, but it does have a different interpretation of it. Perhaps it'd be a Good Idea(tm)(P)(C) to have some kind of disclaimer here. Kim Bruning 17:25, 22 Mar 2004 (UTC)

Hmm, re history of Intellectual Property I think it might be a good idea to seperate out the concept "Intellectual Property" as being a rather more modern cover-all (probably only used post 1980s ? ), as opposed to the seperate historic concepts that are now claimed to make up intellectual property. Kim Bruning 10:30, 24 Mar 2004 (UTC)

I have removed the following POV text from the Arguments against section. Somebody dumped it there in mid-November (see here), in the middle of a couple of paragraphs about something else, and never came back to try to turn it into something coherent and unbiased.

One of the primary functions of intellectual property rights is to exclude the general community from using one's work without payment and/or prior written consent. Despite its underlying hints at selfishness, this may seem like a logical idea. However, intellectual property rights are used for the most part as a method of disallowing the public from utilizing the input that one has contributed to society, in exchange for personal profit. Undoubtedly, the author of a text, software program, song, etc. should be entitled to receive credit for the work in which they have invested time. But if others are not free to edit the work for their own use (as is especially true with most proprietary software), the author's work will have a much diminished use-value for the broader context of society.

Fortunately, there ARE alternatives... (to be cont. - 11/18/03)

If anybody really objects to my removing this text, can they please explain why before putting it back again. R Lowry 02:36, 10 Apr 2004 (UTC)

Well, yes, no, and read here: http://creativecommons.org/ . Although strictly that only refers to copyright. In any case they make a case against pure copyright, and might be used as a reference in support of the above so that we can keep some or all of it. Kim Bruning 08:43, 10 Apr 2004 (UTC)

Oh wait. Why go through all the trouble. Just see the small print at the bottom of this (and every other) wikipedia page, and track down where that comes from :-). The paragraph still needs to be rewritten with improved attribution though. Have a nice day! Kim Bruning 09:05, 10 Apr 2004 (UTC)

Intellectual property and idea-expression divide

does the idea of intellectual property conflict with the idea-expression divide?

Mmm. Interesting question. There is no actual conflict I believe. The intellectual property and the idea-expression divide fall within two different categories of concepts. Intellectual property merely encompasses different types of protection mechanisms, i.e. copyright, patent, trademark, trade secret, design, while the idea-expression divide is a doctrine defining or trying to define what is the scope of the copyright protection. --Edcolins 19:13, Jun 10, 2004 (UTC)

The article had said of the decentralised nature of successors to Napster that it "is making legal action more difficult." Pedant's most recent edit (at the time of writing) has changed this to "makes legal enforcement of intellectual property rights more problematic." I wonder whether this is accurate. Is legal action against filesharing networks (rather than those who transfer files in violation of copyright) part of the enforcement of IP? The makers of VCRs and photocopiers have not been held responsible for ensuring that their products were overwhelmingly used without violating copyright. Why is it not allowed by IP to run a filesharing network (which, like VCRs or photocopiers, could be used entirely in accordance with copyright)? Even assuming that such a network is used to violate copyright, there is no threat to patents, trademarks or trade secrets and the copyrights remain in the hands of the original copyright holder. Would legal action against other makers of tools that could be used for copyright violation, such as VCRs and photocopiers, constitute IP enforcement? I would be grateful if someone would tell me where I am going wrong or suggest improved wording. Tim Ivorson 17:57, 10 Aug 2004 (UTC)

NPOV edits

Been making some NPOV edits to this article, and I came across this:

The term intellectual property is problematic because the rights conferred by IP laws are limited, in contrast with the legal rights associated with property interests in physical goods or land.

As the legal rights associated with chattel and real property are limited (e.g. public easements), I rephrased this significantly. anthony (see warning) 16:47, 20 Aug 2004 (UTC)

Ownership analogy

For example, the holder of the copyright in a book has the legal right to make and sell copies of the book, and the right to forbid others from making and selling copies of the same book. By analogy, then, he can be said to "own" the words in a similar way to which he might own the press on which they were printed, because ownership of a physical object also confers the right to forbid others from using the object.

I don't understand this analogy. Copyright does not forbit the right to use words. anthony (see warning) 17:08, 20 Aug 2004 (UTC)

It said object, not words. Anyway, it's ridiculous that IP refers to rights under the works, rather than the works themselves. Of course they're not physical; that's why it's called IP. lysdexia 05:17, 23 Oct 2004 (UTC)

--80.130.147.64 14:04, 8 Dec 2004 (UTC) The you apply a certain teaching the "ownership teaching" that might be appropriate for copyright under the Berne Convention but certainly not for other legal fields put under the Hat of IP. The very essence why many persons reject the term is the fact that it applies this reading.

The main question is: Is there something like "ownership" before the grant of the right, so that the law does only confirm the right. According to the human rights convention this applies to Copyright that emerges with the creative act (has not to be declared anymore as in US legal tradition). But patents are grants in return of a patent letter that describes an invention. PAtents only apply for a market. PAtents are monopoly "grants" in return of publication. If you make an invention and don't file a patent application you will get no patent.

IP

Intellectual Property is a term from international lobbying but no proper legal term. Economists and scholars speak of exclusive rights. However it is widely used as a propaganda phrase by professionals because it tranferes the concept of property to legal fields where it does not apply.

The main problem with the term is that it comprises conflicting areas of law. Patents, trademarks and copyrights are totally different fields of law put under one hat. Patents and trademarks unlike copyrights e.G. have no foundation in natural law. The term Intellectual property inplies a inappropriate teaching that does not apply for patent law. Therefore it is widely rejected by scientists.

In Germany the proper legal term is "Immaterialgüterrecht", immatarial goods rights.

Okay, I don't know who is responsible for the recent edits, but I thought all this was settled. It is never POV to define a word in its normal context. It is POV, however, to say things like "the term glosses over fundamental distinctions..." That may be a valid opinion, but it isn't NPOV unless it is framed as an opinion, and the article states who holds that opinion. You may believe that patents, trademarks, and copyrights are in separate fields of law, and you may discuss that point of view in a section of the article, but you can't say, as a matter of fact, that the word itself is propaganda. I happen to be a U.S. intellectual property lawyer, and I can tell you from personal experience that at least in the United States, the term intellectual property is a well-defined concept in U.S. law, and has been for decades. I've heard your POV before, and it belongs in this article, but not as a statement of fact, rather than opinion. Therefore, I am revising the article to incorporate the recent edits into the previous framework. However, I have been unable to incorporate the following, which appears too POV anf of questionable accuracy:

In United States law, there are few actual references to "intellectual property." References to the term in the U.S. Copyright Act are chiefly footnote references to the titles of U.S. legislation (e.g. "Intellectual Property and High Technology Technical Amendments Act of 2002") and international treaties (e.g. TRIPS). Section 701 refers to cooperation with "foreign intellectual property offices." Other uses of the term are insubstantial. The correct legal term when speaking of copyright, patent or trademark, is "exclusive rights," the actual term used throughout the relevant legislation.

(Speaking as an IP lawyer, I've never heard this before, and I don't know anybody that uses the term "exclusive rights" in common usage, or in front of a U.S. court.)

Among the other instances, Title 18 (criminal code), Section 2319 and 2319A on "criminal infringement of copyrights," allows "holders of intellectual property rights in such works" to file victim impact statements. The No Electronic Theft Act calls on the Sentencing Commission to "ensure that the applicable guideline range for a defendant convicted of a crime against intellectual property . . . is sufficiently stringent to deter such a crime." This reference is particularly notable because there does not actually appear to be such a thing as a "crime against intellectual property" in the law.

(This might belong in the article, but I'm not sure exactly where. Maybe you can explain to me the point of this paragraph.)

In Civil Code jurisdictions, certain rights related to intellectual products may exist for an indefinite period of time. In the United States, they cannot.

(This statement is simply untrue. In the U.S., trademarks and trade secrets are not time-limited; only patents and copyrights are.)

in truth exclusive rights must adapt to Constitutional limits and fundamental rights, not the other way around.

(This is obviously a personal opinion.)

The recent edits deleted reference to trade secrets.

(At least in the U.S., trade secrets are intellectual property.)

["Exclusive rights"] actually serves very well as a general term that much more precisely represents the nature of this area of law.

(This is obviously a personal opinion.)

Anyway, let's please have a discussion as to the above material, and maybe it can still be incorporated into the article if properly and framed. [[User:COGDEN|COGDEN^(talk)]] 20:27, Dec 8, 2004 (UTC)

No, Exclusive rights is the proper term used in (neoclassical, western) economics. IP is a US term and bound to US teaching. It is also important to devide IP from IPR. Furthermore it is important to divide the IP system design question (adjust scope, limits ecc.) and IP actually granted under an existing system. Usually many players mix this up. e.g. when Burundi decides not to implement a patent system for their local market, it is their free choice which applies to all players in the field on the national market. In a copyright world this might be different. So when US software is copied for free in Burundi then the US will accuse them not to protect their IP by IPR, here: copyright. In the patent world it is different as patents are only valid in a one market. So a US company e.G. has to apply for a french patent when it wants to sell products on the french market and aquire patent protection for this specific market. Same the other way aroung. When a Us company uses an invention patented in France but not in the US it is free to do so as long as they do not sell at the French market.

2 views

a) normative: the lawmaker decides about the optimal scope

b) positive: there is a system in place under which rights are granted which are supposed to make sense

Lawyers (unlike economists) usually apply the view b) to questions in the field of a), it is a problem of methodology and causes much confusion. Usually lawyers also apply the third view

c) legalistic obligations from international law

to questions in the field a). There are many examples as a controverse interpretation of TRIPS 27 that is used to impose broader patent systems on other nations. In fact is not that wrong to mix up c) with a) as c) is just a result of common negotiation of states. What we often see is that certain interpretations which the parties who accepted the agreement didn't agree upon are imposed on the lawmaker as legalistic mechanics arguments. TRIPS 27 is a perfect example. E.g. it is argued from the patent attorney community that Trips 27 required software patentability what is not true as Software is not regarded as a "field of tehcnology" in the traditional meaning of patent law, this is what the negotiating parties agreed upon.

Furthermore professionals in the field such as patent attorneys are no unbiased stakeholders as they benefit from broad patent law. So the fact that somebody calls himself an attorney just means that he reflects the interests of a special group very influential in the debate. A attorney cannot present a NPOV as he is a stakeholder and common views of his expert community represent the interests of his expert community biased as anybody else. This has to be kept in mind

--217.83.44.12 23:45, 6 Jan 2005 (UTC)

The term exclusive rights may be popular among one particular school of economists, but I suspect that even within that school, it's a much broader term than intellectual property. Exclusive rights could refer to physical property as well, such as the exclusive right to possess one's land. Moreover, this article is about intellectual property. Discussion about the broader term exclusive rights could be put in some kind of exclusive rights article.

The idea of separating intellectual property from the concept of intellectual property rights is a rather quaint one. Only the most Lockean philosophers believe that intellectual property is some sort of natural right that exists independently of government entitlements (what you refer to as "intellectual property rights"). Furthermore, the distinction you raise between patents and copyrights is simply incorrect. Copyrights, like patents, are territorial in scope. The only reason a copyright obtained in the United States is valid in another country is because the other country has entered a multilateral treaty in which both countries agree to recognize each other's intellectual property, without the need for formally re-applying for the copyright in the new country. A U.S. copyright is not intellectual property in Burundi unless Burundi agrees to make it so. Burundi could choose, if it wanted, to require parties to obtain new copyright registrations before recognizing U.S. copyrights. COGDEN 18:42, Jan 7, 2005 (UTC)

Speaking as a Canadian lawyer who practices exclusively in this area, I can assure you that the term "Intellectual Property" is considered the correct legal term in Canada. I can also tell you that our firm communicates with lawyers in numerous jurisdictions throughout the world and they all use the term as well. Also, the existence of the international non-governmental body known as the World Intellectual Property Organization, which manages numerous international treaties dealing with this area of law, would seem to indicate that the term is fairly well entrenched on an international level. To argue that the term is limited to the United States or that it has no legal meaning, is simply incorrect. Hardcormier 18:06, 13 June 2006 (UTC)

Natural law

A wellknown criticism of the IP term is that it puts different types of legislation under the same hat and implies to treat them equal.

Esp. it implies a natural rights theory where intellectual property right are granted to protect intellectual property (i.e. existing prior to legislation)

This view applies for Copyright as it is harmonized as a natural right in the Human rights declaration but not to patents which are a market-related incentive system for industrial inventions granted by the authorities, i.e. there are no rights prior to the grant.

off topic

But Microsoft is dumping its selling price on competition from GNU/Linux, for example with government clients. Because of this competition, Microsoft will also be forced to release an update to Internet Explorer to the public for it's current product which it originally planned to release with it's next operating system. [edit]

> off topic, please delete this

Minor change question

Article states (4th paragraph): "Trademarks, trade secrets, regional declaration do not have a time limit while copyrights and patents are of limited time (patents: 20 years)" Question: Is not the 20 years a United States time-frame? Should we state that? I'm not sure, so haven't touched it.

The 20-year period is set out in Article 33 of the TRIPS agreement (Trade-Related Aspects of Intellectual Property Rights), signors to TRIPS are required to implement a minimum 20-year patent term of protection. I'm not sure quite how to incorporate this information without getting into a much larger discussion of TRIPS. Hardcormier 17:48, 13 June 2006 (UTC)

Comment

Would it be true to say that everyone who has so far made contributions/edited this page has taken part in the sharing of there own IP, also by publishing you "IP" in this article you have granted everyone and anyone IP to your work.

So there you have it non-exclusive IP right under your fingers.

Good point. It may be true, but we wouldn't want to say so in the article. That would go against the policy of avoiding self-reference. I suppose it could be generalized about editing public GFDL documents. Cheers, -Willmcw 20:37, Apr 28, 2005 (UTC)

Economic View section is a bit long

The economic view section is in need of some condensing or splitting, it's a bit long and full of short sentences that could probably be combined or deleted. Scott Ritchie 08:01, 14 Jun 2005 (UTC)

"(...) the paper itself is copyrighted by its publisher"

Moved from the article. This is probably worth a discussion:

The contentious bibliographic citation:

Stephan Kinsella, "Against Intellectual Property", Journal of Libertarian Studies, Vol. 15, No. 1, pp. 1-53, 2001. Available in .PDF here (Note: though the author concludes that "[Intellectual property], at least in the form of patent and copyright, cannot be justified," the paper itself is copyrighted by its publisher.)

The comment:

This is nonsense. Publishers do not "copyright" things; federal law automatically grants to certain people a copyright (it's a noun, not a verb) in certain works, whether or not the author or publisher does anything to request it. No registration need be filed; no copyright notice need be affixed. The criticism here is ignorant. Nskinsella 21:02, 18 July 2005 (UTC)

I deleted the note in the article for now. --Edcolins 07:06, July 19, 2005 (UTC)

It seems noteworthy when someone argues against private property yet posts a "no trespassing" sign. -Willmcw 08:21, July 19, 2005 (UTC)

I reinserted the note, in a modified form. The criticism by Nskinsella is now met since the verb "copyright" is not used anymore. It is up to the reader to make his mind about the implication of the copyright notice insertion while actually "no copyright notice need be affixed", as Nskinsella points it. --Edcolins 10:28, July 19, 2005 (UTC)

I am wondering whether replacing

by

would still be neutral. What do you think? --Edcolins 10:33, July 19, 2005 (UTC)

I think you've made a good edit, and your suggestion makes the point even clearer. Cheers, -Willmcw 10:55, July 19, 2005 (UTC)

Alright. Done. --Edcolins 11:33, July 19, 2005 (UTC)

The comment is completely inappropriate, and also, it is legally inaccurate. First: it read:

"Note: though the author concludes that "[Intellectual property], at least in the form of patent and copyright, cannot be justified," the paper includes, on the first page, "©2001 Ludwig von Mises Institute", a mention generally used to give notice that the work is covered by copyright and that the IP right is intended to be enforced."

The word "though" implies that there is some hypocrisy or inconsistency on the part of the publisher or author. This is needless opinionated commentary. There is nothing inconsistent with there being a published argument that IP is unjustiifed, and the published argument being subject to federal copyright law, and the publisher recognizing this fact. Moreover, it is legally inaccurate to say that a copyright notice is a notice that the IP right is "intended to be enforced." This is completely false. I am a practicing IP attorney, and you can ask any other IP attorneys and they will tell you the same thing. In fact, the GNU advocates also rely on copyright protection for their licensing scheme. Moreoever, the note is on an article made public by Mises Institute, which, if anything, makes it clear they are not enforcing any copyright. In any event, I believe any note at all here is utterly inappropriate, and smells of a gripe by a GNU advocate miffed at the publisher's use of the copyright notice. I have left the comment in, however, yet modified it to be legally accurate, and also to avoid implying the author or publisher is hypocritical or unethical or inconsistent. Thus, the word "though" is removed, as is the comment that the copyright notice means you "intend" to "enforce" the copyright. So it now reads:

Note: it is interesting to observe that the author concludes that "[Intellectual property], at least in the form of patent and copyright, cannot be justified," the paper includes, on the first page, "©2001 Ludwig von Mises Institute", a mention generally used to give notice as to the date and claimant of the copyright bestowed by automatic operation of federal law.

--Nskinsella 17:04, 20 July 2005 (UTC)

If you think the neutrality of the section is biased by the mere insertion of the note, you may wish to add the following tag on top of the "Bibliography" section: {{NPOV-section}}. --Edcolins 18:51, July 20, 2005 (UTC)

BTW, Willmcw, why did you remove my link to my user page? After all, you are trying to get my Stephan Kinsella entry deleted, and will probably succeed, so I am just trying to provide a good link. What is your problem with my providing a link that is not blank? I will put up my website in the meantime, if you don't have an issue with that. --Nskinsella 17:01, 20 July 2005 (UTC)

Why don't we go back to user:Edcolins' first version:

I answered your question about usernames on your talk page. Cheers, -Willmcw 19:13, July 20, 2005 (UTC)

Willmcw: I object to any comment whatsoever about the article having a copyright notice. There is no purpose whatsoever to mention this except as some kind of non-neutral commentary. I venture to say that (a) EVERY other article listed on that entry is protected by copyright; and (b) most of them have copyright notices. Are we going to adopt a policy of automatically listing "the article is protected by copyright, and also has a copyright notice" for any article that opposes IP? Well, there are other articles on the site that oppose IP. Do we need to investigate each of these and see if they have a copyright notice? I think it's ridiculous. It is not news, or useful information, or even particularly noteworth, that a given publication has a copyright notice. Nor is it news to say, "the article is printed in black print on paper." So calling attention to it is obviously done for the sole purpose of trying to make a subtle point that there is some kind of hypocrisy or inconsistency going on. It is definitely not a neutral POV. There is no reason whatsoever that i can think of to mention this totally trivial and uninteresting fact. Can you give a good, non-neutral reason?

BTW, thanks for the answer re usernames. Understood. I am learning rapidly, watch out! :) --Nskinsella 20:53, 20 July 2005 (UTC)

If there are other authors arguing againt the concept of IP in this article then we should mention the status of their copyrights too. It may seem like a trivial detail to you, but here at Wikipedia we're building a copyright-free encyclopedia. Everything that each of us writes here is essentially public domain, and we scrupulously remove copyright violations, as you well know. So, many of the readers and editors naturally have a heightened interest in the licensing arrangement of IP theorists. Regarding the passage itself, I again suggest the first version the Edcolins wrote " a mention generally used to give notice that the work is covered by copyright." It is succinct and does not draw a conclusion for the reader. It is true that the work is covered by copyright, isn't it? -Willmcw 05:41, July 21, 2005 (UTC)

Here is my thought. First, if anything is to be said, it needs to be legally accurate. See copyright guides here. But I think your reasons don't make much sense. You seem to be saying that b/c Wiki is a copyright-free encyclopedia, that many Wiki readers/editors might like the works of anti-IP writers; and might want to license them or know if they are public domain. Honestly, I have trouble believing this explanation. It does not jive with the original wording of the comment--that said "THOUGH the article opposes IP, it has a coyright notice." That implies it is a comment or critique, not just info to the reader. Moreover, anti-IP articles are not the only ones of general interest to Wikipedians; so I would assume you are now going to start monitoring all publications linked on Wiki and adding the notice, "has a copyright notice" if the publication is of interest to Wikipedians? No, I dont think so. Finally, again, it makes no sense to call attention TO THE COPYRIGHT NOTICE. Even if the article DID NOT HAVE A COPYRIGHT NOTICE, it would STILL BE PROTECTED BY COPYRIGHT. So calling attention to the FACT THAT THERE IS a notice says nothing other than that federal law operates automatically. But this is understood already; it's a general background fact.

The copyright notice serves to give the owner some possible legal advantages. It does most certainly not imply the owner "intends to enforce" it. I object to the practice of *singling out* this article for including of a mundane comment that it has a copyright notice--even if you limit the comment to a strictly factual one. The comment is either completely useuless and pointless, or it is a criticism of the article.

Sidepoint: Willmcw, you keep tring to remove me b/c I'm not notable; if so, why the fuss over the copyright status of my little article?

If you are REALLY serious about Wikipedians wanting to license the article or know its status, why not just ask me? I'm the author. In fact, I hold the copyright, not the Mises Institute (I never executed an assignment). If there were an easy way to make it "public domain" -- by means of your open source or GNU things, which I have not studied -- I would consider this. Is there some easy way for me to make it publicly clear that the article is available under some kind of GNU license? Let me know, and I'll look into it. In fact I am tight w/ the Mises Institute; I might be able to talk to them about some kind of license like that, for the hundreds of online books and articles on their site, if it makese sense. --Stephan Kinsella 12:57, 21 July 2005 (UTC)

There's no need to shout. I doubt anyone wants to license your article- that's not the reason its copyright status is of interest. It is of interest because you are arguing about copyrights in the article. This is just like someone writing a book against the color red, and then having the book bound in red covers. I don't understand what Mises has to do with it if you're the copyright holder. If the copyright status changes then that would also be of interest.

I don't "keep trying to remove you". Considering your campaign against Tom G. Palmer's article you really aren't in a position to claim persecution. -Willmcw 16:47, July 21, 2005 (UTC)

Willmcw: A couple things. First, I'm not shouting. I'm asking you for a coherent rationale for obviously opinionated, biased, commentary type comments. Now you are changing your story--because I'm writing about copyrights, it's "of interest" whether ... what? Whether it's covered by copyright? No, b/c all papers are covered automatically by copyright. Whether the publisher or author places a copyright notice? But why? I don't agree it is of interest at all. It is an attempt to snidely or subtly try to point out a hypocrisy on the part of the author. "Why should the author attempt to benefit from copyright law if he thinks it should be outlawed?", such a comment seems to say; or "The author is a bad person; a hypocrite, ..." This can all be argued, but it is definitely not neutral or objective. It is opinion. It might also be part of a desire on the part of GNU activists to impose a slight penalty wherever they can --embarrasment, whatever--to subtly pressure people into not putting copyright notices on their papers (as if that makes any difference--even if there were no copyright notice, I could still enforce my copyright if I wanted to). I do not intend to remove my NPOV objection so long as any comment is made whatsoever about whether there is a copyright notice, unless you can provide a coherent, believable explanation of its objective, neutral relevance.

Second, you have voted TWICE to remove my entry. I am not saying you are persecuting me, but I was stating a fact about your actions and tendencies. You can hardly deny this. And it's really none of your business to decide whether I am "in a position" to claim persecution because of my "campaign against Tom G. Palmer's article." As a matter of fact, if anything, it's your own fault more than mine--given your two successive votes to delete my entry, it was reasonable of me to initially assume that you were correct and my entry was non-notable (again: the first time this happened, before I was aware of Wikipedia's bio policies, I did not deny the non-notability charge; I simply objected to your false claims that I had put the entry up as a vanity piece); and that since Palmer is arguably of similar notability (same order of magnitude, for sure), that his site was similarly deletable, as you keep claiming mine is. Now that I realize you were wrong and the actual Wiki standards would allow my entry to remain (standards none of the deletes has yet even made an effort to try to apply--you, for example, simply disregard the standards and vote your opinion regardless of the standards; as is your right, I assume), I put up my entry and decided not to sit idly by and let it be taken down unjusty--against Wiki standards--without resistance by me; and I also removed my objections to Palmer's page, if you have noticed.

BTW, I used to call you "willow" b/c I misread your handle that way one time, and had the (mistaken) impression that was your name. Love, hugs and Wiki-kisses to you! :) Stephan Kinsella 17:58, 21 July 2005 (UTC)

You did the right thing to end your campaign against Tom G. Palmer. Your "hugs and Wiki-kisses" would seem more sincere if you'd remove your attack on "Willow" from your blog copyright page. Gee, another copyright notice.... -Willmcw 18:23, July 21, 2005 (UTC)

Ha! I had forgotten. Fixed. --Stephan Kinsella 21:15, 21 July 2005 (UTC)

Original issue: The comment is senseless and POV. Enough said. So remove it. Mmmbeer 03:47, 22 July 2005 (UTC)

I agree. I have removed the comment. If it is put back up I will renew my POV objection. Stephan Kinsella 04:52, 22 July 2005 (UTC)

Please do not remove the POV tag until the editors agree that there are no more active disputes over the matter. -Willmcw 05:48, July 22, 2005 (UTC)

Okay. I removed the comment though. Please do not put it back in. Stephan Kinsella 06:23, 22 July 2005 (UTC)

Rather than putting the earlier text back in I just added the word "copyrighted" to describe the paper. It's short, simple and verifiable. I can provide a source. For better accuracy at the expense of brevity we could say, "copyright-marked". -Willmcw 08:01, July 22, 2005 (UTC)

This is utterly ridiculous, in my view. There is no reason to mention this at all. This is a transparent attempt to make a snide comment about the article. I challenge anyone to defend this bizarre action. Stephan Kinsella 13:41, 22 July 2005 (UTC)

This is actually somewhat amusing because who would have thought that the actual citation to a source could create a NPOV issue (not the use of the citation). I fail to see how mentioning the fact that an article is ©ed is really all that important. Modern copyright automatically confers protection and it is incumbent upon the author to release it. So it hardly seems that important that a published article arguing against copyright has copyright protection itself. Plenty opponents of laws, services, etc take advantage of those things because they're otherwise disadvantaged with respect to everyone else until they win their fight. So, unless you're going to put "copyrighted" in front of EVERY mention of an article, just remove it. Mmmbeer 13:58, 22 July 2005 (UTC)

I agree completley, mmmbeer. But if we are going to mention such stupid facts, we should add others of similar import, and mention them in connection with other publications too. I have done this. What is going on here is Willmcw and/or others, with a shaky understanding of copyright law ("copyrighted" is inappropriate, for example, as a verb), don't like the fact that an opponent of copyright would take advantage of copyright law. Notice they don't make such snide comments about advocates or copyright. This is akin to how a black conservative is attacked by fellow blacks for deviating from the accepted leftist line. Stephan Kinsella 14:06, 22 July 2005 (UTC)

I removed the "copyrighted" and your nice verbose. Don't disrupt Wikipedia to illustrate a point. Discuss it instead. --Edcolins 14:25, July 22, 2005 (UTC)

Oh, sorry, since Willmcw kept adding trivial details, I thought that it was permissible. But now I see your point--those trivial details added to "make a point" should not be added. Why don't you repeat this warning to Willmcw? Let me do it: Willmcw: Don't add trivial, pointless comments, such as "copyrighted article," to illustrate a point. BTW, so long as there are no "copyright" comments in the article, why do we need the POV warning up there? And if it is there, it needs to be in front of the other section that mentions my article, since this is where Willmcw wants to add the copyright flame. Stephan Kinsella 14:30, 22 July 2005 (UTC)

You, Nskinsella, may know the facts best, but this discussion about a trifle where facts are not disputed seems to have spiraled out of control mostly because you have a personal stake in it. I can see the irony in the copyright notice in question, but I don't think it's a big deal, so I don't care whether it's in the article or not. But you do, and you trigger all kinds of reflexes with your involvement. Maybe you should refrain from debating the POV status of content that is directly related to your person. Rl 14:50, 22 July 2005 (UTC)

I understand your point. It may not be a big deal to you that a ostensibly objective entry is marred by clearly non-neutral, snide commentary, but it is to others who value the integrity of the Wiki process. But maybe I should refrain, as you suggest; but I believe 2 exceptions are in order. First, so long as any attempt is made to single out ANY anti-IP article for "being copyrighted," I will insist on NPOV tag. Second, if legally inaccurate statements are made, I may correct them, since my IP specialization apparently is rare around here. For example if someone misstates what copyright notice means; or if it is incorrectly stated that an article is "copyrighted" (verb) "by" the publisher/author. Stephan Kinsella 15:13, 22 July 2005 (UTC)

OK, so what is the legally correct way to phrase it? Wikilove, -Willmcw 17:19, July 22, 2005 (UTC)

What is the legally correct way to phrase what? What is it, substantively, exactly, that you want to say? Stephan Kinsella 17:43, 22 July 2005 (UTC)

The copyright status of your article. "Copyright-marked" is correct, isn't it? -Willmcw 18:31, July 22, 2005 (UTC)

I guess I should take exception to your insinuation that I don't "value the integrity of the Wiki process". But then again, I might as well thank you for driving home my point once more. Rl 17:28, 22 July 2005 (UTC)

Rl, I did not mean to insinuate that. I only meant that those of us who think it is significant think so b/c we value the integrity of the process. I don't mean to imply that those who value the integrity of Wiki can't disagree. Stephan Kinsella 17:43, 22 July 2005 (UTC)

Fair enough. Rl 17:46, 22 July 2005 (UTC)

Willmcw seems to be on the whole a very active and very good Wikinaut. However, in this case he seems to be stubbornly insisting on something goofy. How can we resolve this dispute? CAn other, experienced Wikipedianoids be brought in to comment? Stephan Kinsella 17:56, 22 July 2005 (UTC)

You can file a wikipedia:request for comment about the article, linking to this talk page and describing, in neutral terms, the dispute. -Willmcw 18:31, July 22, 2005 (UTC)

I edited it slightly to reduce the POV, and posted a section (below) where editors coming in can comment. -Willmcw 19:12, July 22, 2005 (UTC)

RfC

Regarding a cited article opposing intellectual property and copyrights, one user wants to note that the article bears a copyright notice. Is it NPOV to note this fact?

Short answer: don't note this fact. The longer answer is about two choices: (A) One could mention that the paper is under copyright, but one should then point out that that's not a contradiction or a sign of hypocrisy: First of all, it is perfectly rational to believe that current IP law is broken while still respecting the law as it currently is (the last part is almost always a good idea). Second, under the current law one may not even have a choice regarding copyright: if you write something that's original and non-trivial, you are automatically the copyright holder and some have argued that it's impossible to disclaim that (see WP:PDWTF for an opinion as it applies to PD content on WP). Third, you may have an employment contract that specifies that anything you think of is automatically the IP of your employer, in which case you don't get to decide about copyright and licensing at all. Fourth, it's virtually impossible to get anything published without the publisher explicitly stating who the copyright holders are, since the publisher needs to keep track of such things for purposes of licensing, royalty payments, etc. For all these reasons, it's hardly remarkable that a published paper bears a copyright notice. One may think it's ironic in this case, but it's not. The second choice is, (B) don't mention the fact that the paper is copyrighted at all for exactly the same reasons as above. If you go with option (A), you should point out why the presence of the copyright notice is unremarkable. But then again, why say X and then immediately add a disclaimer that X has no deeper significance? --MarkSweep 19:43, 22 July 2005 (UTC)

Willmcw: Does you agree? Can we get past this and delete the NPOV? Please do so if you agree. Stephan Kinsella 19:49, 22 July 2005 (UTC)
- I came here from WP:RFC, too, and I totally agree with Mark. Remove the thing, don't mention it at all, there is nothing ironic about respecting the law while believing that it's broken. Extra comment for free: I don't see how it can be Stephan Kinsella's fault exclusively that this discussion has "spiraled out of control". It takes two sides insisting that they're right for that to happen. Bishonen | talk 21:33, 22 July 2005 (UTC)

Willmcw can be stubborn, and I predict he will undo what I do, so I would prefer he take the corrective action; but I will make an attempt. Let's see if it works. Stephan Kinsella 21:39, 22 July 2005 (UTC)

Personal comments aren't needed, thanks. -Willmcw 22:16, July 22, 2005 (UTC)

As I stated before, I couldn't care less about the issue itself. It's a storm in a teapot. And I do agree that the fault – if it has to be assigned at all – is not exclusively Stephan Kinsella's. However, I think we all agree that it is neither common nor recommended practice for editors to participate in POV wars about themselves. And, FWIW, providing a copyright notice has nothing to do with respecting the existing law, since you are free to respect the law and not add such a notice. Rl 22:06, 22 July 2005 (UTC)

Comment from FuelWagon

Stephan Kinsella, "Against Intellectual Property", Journal of Libertarian Studies, Vol. 15, No. 1, pp. 1-53, 2001. Available in .PDF here (Note: though the author concludes that "[Intellectual property], at least in the form of patent and copyright, cannot be justified," the paper itself is copyrighted by its publisher.)

Drop the parenthetical. Everything is copyrighted, and then some people license away some rights. Wikipedia is GNU-FDL, which is a strict copyleft-enforced license. The only ones who get to claim to rise above the "hypocricy" of copyright are people who publish their works into the Public Domain, and that is rare. Creative Commons has a Public Domain license and almost no one uses it. People want attribution at the very least, others want NonCommercial-NoDerivatives-Attribution, which is more restrictive than plain copyleft. In any case, unless it is public domain, it has some copyright restrictions on it, wikipedia included. faulting an author for maintaining their work All Rights Reserved from a site license GNU-FDL is a grey pot calling the kettle black.

If that doesn't convince you to drop it, then you should consider that the parenthetical is the point of view of an EDITOR, not the point of view of some outside source. Therefore it qualifies as Original Research. Furthermore, NPOV would require this parenthetical to be balanced by some other outside countering view, saying it isn't hypocricy or some such thing. None is given. So, it violates No Original Research and NPOV, and should be dropped. Lastly, how encyclopedic is it to make snarky remarks in the bibliography like this? FuelWagon 05:49, 28 July 2005 (UTC)

Came here from RfC. Agree completely with the above, so no need to repeat it. Will only add that an author often has no control over copyright of a publication. Authors aren't publishers in most cases, and publishers hold copyrights; that's really what the author gets paid for. DavidH 06:04, August 3, 2005 (UTC)

Nature of the critique — proposal for new article dealing separately with critique

The article's layout is strange. There is a section, "Critique," with subsections, "Arguments against the term" etc. My piece against IP is in there. This is a bit bizarre. My and others' critique of IP has not been with the semantics. this is a minor issue. In my view, there needs to be a separate section or sub-section that is devoted to arguments pro and con for whether IP law and rights are justified, or legitimate. Ican add some info to this, but am not sure the right structure. But it ought not be to be called a squabble over terminolgy. It is not.

Proponents of IP have various arguments for IP--natural law oriented; utilitarian oriented.

Opponets of IP have various arguments that IP is illegitimate: some oppose property altogether and assume IP is a type of property (socialists, anti-capitalist, anti-industrialists); some utilitarian types believe abolishing IP would enhance wealth or welfare; and some, like me, oppose it on pro-property rights grounds.

Why is the debate over IP's legitimacy relegated to a dispute over the "term"? (unsigned contribution by Nskinsella)

Good point, which also serves to illustrate the extent to which the article is almost entirely overrun with critique, whether as to form or substance. It is time for the critique to be divided out into a standalone article, not least so that the main article deals with the actual subject matter at hand. 203.198.237.30 05:03, 29 July 2005 (UTC)

Reorganisation

The anon editor who "reorganized" the article is pretty confused about the differences between IP, patents, and copyright, as his rewritten intro, from which I'm quoting, demonstrates: "It is important to note that intellectual property laws only apply to the particular form or manner in which ideas or information have been expressed. IP laws are not designed or intended to cover the actual concepts, facts, styles or techniques which may be embodied in or represented by the ideas or information." I assume most of us agree with the point made in the section above by Nskinsella – this should be fixed. However, on a controversial subject like this, it is most certainly not a good idea to making sweeping changes to the content without getting some consensus on the talk page. Also, calling such substantial content changes "reorganisation" could be seen as misleading. Rl 06:55, 29 July 2005 (UTC)

Interesting comments. Your grasp of the subject matter is apparent from the extent of your significant contributions to major IP articles, and knowledge of earlier re-organisations to this very article. Typically, you have blindly reverted form as well as content. The reversion will be reverted, with an attempt at constructive modification of the specific comment you mention. Also, this issue simply emphasises the extent to which the article operates as a forum for those who wish to critique and rail against the "concept" of intellectual property. The critique is important and valuable, but never at the expense of informed discussion and analysis of the subject matter. There is currently so very little of this in the article. 203.198.237.30 07:25, 29 July 2005 (UTC)
- It is never a good idea to make large changes to form and content at the same time, especially if it is a controversial article. I agree with quite a bit of the criticism aimed at this article, and I would have been in favor of incremental changes. However, I very much dislike the way you are conducting such a rewrite based on whatever you think is right, without even bothering to try and get some sort of consensus. Rl 08:09, 29 July 2005 (UTC)
  - Summaries of different types of patent law may be found in the following 2 articles by me: I own the copyright in them and would be happy to make them GNU friendly (someone tell me how) if anyone wants to use them to help improve the entry's format or accuracy: Intellectual Property as Assets in the Oil & Gas Industry: What Are Patents, Copyrights, Trademarks, and Trade Secrets, and How Do You Protect Them?, 11th Annual Oil & Gas Law Institute (Houston, Texas: South Texas College of Law, August 6-7, 1998)[3]; Against Intellectual Property, Spring 2001, Journal of Libertarian Studies[4]. Anyone is free to lift sections from these articles, such as the sections summarizing the various types of IP protection. NSKinsella (Stephan Kinsella) 02:14, 3 August 2005 (UTC)
Hope y'all had a great weekend. R1, although "IP" may be controversial, this article's treatment of the topic is hardly controversial. There are some basic definitions followed by a morass of dense commentary informed by a certain POV. "Critique" is just our convenient label. Regarding you're assessment on the "rewrite", I can only agree to disagree. The reordering of what was previously a haphazard selection of separate critique subsections under one heading was largely a c n p job, and the copyediting of nonsensical portions of same (I loved the stuff about clowns, it was so ironic) was merely cosmetic. The ability for people to go in there and get their hands dirty over anything they don't like is what we love about the place. Also, when we have a lengthy analysis on the application of a publisher's copyright notice to a work critical of the IP concept, yet people reading this article were subjected to the abstruse, turgid "overview" which existed before the rewrite, we should all heed the prescription to BE BOLD. I am otherwise with you on consensus building where this is appropriate . 203.198.237.30 05:00, 1 August 2005 (UTC)

A little knowledge...

In order to function as an effective resource, Wikipedia needs to be accurate. Much of the text on the page, although evidently written with enthusiasm, was or remains incorrect from a legal viewpoint. For example, the discussion of copyright referred to independent creation of "designs". Copyright does not protect designs any more than it protects ideas; copyright protects material forms of expression of particular subject matter of works as set out under statute. Designs are a separate category of intellectual property and in Australia at least there is a complex overlap between the law of designs and the law of copyright, for example in relation to works of artistic craftsmanship. Ideas are protected by the laws regarding confidential information or, if meeting certain criteria, patents. Also fundamentally wrong was the statement that a copyright licence isn't a contract. It is an instance of just that. And BTW, regardless of their views on the rights or wrongs of it all, you wouldn't find too many lawyers arguing that there was no such thing as IP - there wouldn't be a major law firm anywhere in the common law world that didn't have a bunch of specialists who work on nothing else. Lawyers refer to IP, not "exclusive rights", because there are many other instances of exclusive rights that have nothing to do with IP, and instances of IP that are not exclusive rights (eg a non-exclusive licence or independently created copyright subject matter). The types of IP law don't "conflict", they cover different subject matter! Lizby 10:29, 29 September 2005 (UTC)

Good to have someone like you on board. The article has come along a fair way since it was first created and edited by people with apparently little substantive knowledge of IP, but plenty of POV axes to grind. Not so long ago (early this year), the article was mostly a rant on why the concept of IP was a Bad Thing. So please keep getting in there and doing your bit to improve the article. 203.198.237.30 11:40, 29 September 2005 (UTC)

About IP?

Suppose I have a new idea and claim it to be something 'never thought of before', then is that idea my IP right?

Absolutely not, if you literally mean just the idea. Consider the first sentence of the article, now with a link to idea-expression divide as a result of your question, which seeks to address this point in a little more detail. 203.198.237.30 06:02, 30 September 2005 (UTC)

How can we get this article to "converge" to a readable/accurate state?

(Please excuse me if my comments are naive; this is the first WP article that I've looked at in a critical sense (I am a US IP lawyer)).

The article has numerous problems, both in terms of organization and content; too many for me to address them individually today. From reading the Talk page, it seems that many of these problems have been identified years ago, and yet they still appear in the article. Is this article being subjected to some kind of never-ending edit/revision loop by competing editors, so that it will never reach steady-state? Is there any way to force the article to "converge" to (or at least towards) a steady-state?

Finally, what will happen if I follow what I believe to be the best ideas expressed in the Talk page and implement them in the article?

Muskie 19:32, 7 November 2005 (UTC)

See Wikipedia:Be bold in editing pages. In short, go ahead; the worst that can happen is that your changes will be reverted. --cesarb 20:08, 7 November 2005 (UTC)

The article has changed significantly over, say, the last 18 months, moving in a direction that we like to think has been an improvement. So on endless revisions, I would say not. Regarding your proposal to overhaul, I suggest working on it section by section as much as possible. Up to you, of course. 203.198.237.30 04:18, 8 November 2005 (UTC)

If you want to do a major overhaul, changing and/or removing a lot of material, probably the safest way to do that is to compose your replacement article, perhaps on your user page or talk page, then put a pointer to it here, with a note asking "what do you folks think?". Those folks who have this page on their watchlist should see that and comment. Another thought: perhaps this article could be gutted almost completely, and replaced with a paragraph or two explaining that the term "IP" is used to denote a number of different things, and simply point to articles on those different things (coopyright, patent, etc.). There really isn't much to say about "IP" that doesn't need to be qualified by particular types. --LDC 08:30, 8 November 2005 (UTC)

The current cycle of reversions not withstanding... 203.198.237.30 06:46, 10 November 2005 (UTC)

recent edits (10 Nov 2005) - reversion

There is some good material in these new edits which could usefully appear in the article (eg. an analysis of the distinction between IP and other forms of property could appear in a new philosophy of IP section or article - OR you could start on the much needed overhaul of the critique section). Some points on the other material, from a quick scan through the edits: The note about U.S. legislation not specifically mentioning "intellectual property" was incorporated in the history of the term section (and the focus of the introduction should not be on whether a particular jurisdiction does not happen to use the term in its laws); same relocation with regard to when WIPO started promulgating the term; regarding all the ways in which certain forms of IP are not enabled by the exclusive rights clause of the U.S. Constitution, suggest putting this in a dedicated U.S. section; similarly, references to "exclusive rights law" and "exclusive rights policy" may be appropriate only to such a section; and rhetorically, you'd have the intro discuss the distinction between rights established by common law and by statute, but later the rational for IP simply becomes that it "promotes the spread of knowledge"? 203.198.237.30 03:46, 10 November 2005 (UTC)

http://en.wikiquote.org/wiki/Intellectual_property

A page about Intellectual_property has been added to Wikiquote which contains Famous quotes included in this article. You might consider to remove that section or to add a {{wikiquote}}

.

Ncrfgs 18:02, 30 November 2005 (UTC)

Nice one as well. Thank you. --Edcolins 19:29, 30 November 2005 (UTC)

Free Software example

I'm not sure if the reference to open source as an example of innovation outside the 'traditional' IP model is as strong as it could be. As far as I can see, the 'standard' argument for IP protection is not that it's the only way that people can innovate, but that the overall level of innovation will be much higher with it.

The fact that 'works of authorship can be written without direct financial incentives' does not in itself contradict the standard IP model. For such criticism to be very strong, you would have to show not only that 'direct financial incentives' are not always required, but also that 'direct financial incentives' do not act as a meaningful incentive to innovate in significant cases.

In other words, the standard IP model does not say that counterexamples cannot exist. It just says that you will get more overall innovation with IP protection that you would without it. Listing counterexamples, without also discussing their wider significance, does not in itself invalidate the 'incentives to innovate' argument. It would perhaps be better to cite studies of the effects of patent reform or something like that. --203.26.16.67 02:03, 27 December 2005 (UTC)

industrial property // achievement

The concept "industrial property" should be introduced at an early stage in any definition of "intellectual property" (see: http://en.wikipedia.org/wiki/Industrial_property )

Further, the basis for the immaterials is the concept of "achievement". The purpose of any exclusion right system is to assign to each achievment in a certain field schemes that promotes sciene and the arts in that field.

Critique section

Bryan made a proposal in November 2005. I moved Torokun's answer of March 12, 2006 down to the bottom of the page because we shouldn't have a discussion between Bryan's comment and his draft. Algae 09:57, 12 March 2006 (UTC)

In law, this is not generally a controversial term though -- it's just the term used to refer to a range of related areas. This term is basically controversial only within the small group of open-source geeks on slashdot and here. If you study law you will find that people who argue about the term itself are on the fringe. Those arguments have been made, but since they are on the outer fringe, the article should not imply that this controversy is so central. It's not. To do so is to be non-neutral.

I'm not saying you guys aren't entitled to your views, I'm just saying that if someone reads this article, they are not going to get anything close to a reasonable picture of what respected people in the field think. You don't want wikipedia to be just a mouthpiece for a particular brand of geek, do you?

Believe me - arguing about the term 'intellectual property' as used in the law is akin to arguing about the term 'computer science' as used in academia.

Something like 2/3 of this article is under the heading 'critique', and is mostly critical. How about making an article that's more descriptive, like most encyclopedias?

Torokun 07:10, 12 March 2006 (UTC)

The Critique section seems indeed too long, poorly structured, and partially redundant. Parts of it look heavily biased. And the assertion that the term "IP" itself should not be used is pretty much an FSF idiosyncrasy. I am sure you know, however, that some respected people in academia are critical of the way IP is increasingly treated like regular property and that some very promiment voices have argued against the ongoing expansion of IPR (usually for a specific area like patents or copyrights).

So what do you suggest? Split out the criticism into a separate article? Or just clean up the subsections one by one? Any particular point you'd like to argue? Algae 09:57, 12 March 2006 (UTC)

I would suggest that the critique be in a separate opinion article. If people want to criticize use of the term, note that many in the OSS community oppose use of this term. I think the academic debate is not about the term as much as expansion of IPR to new areas. You could point to that article from this one, but to be useful, I think this article would be best as a description of what is meant by IP and what the term now encompasses, according to the general understanding in the field. This would also help funnel all the other anti-IP rants out of other related factual articles. Torokun 00:31, 28 March 2006 (UTC)

You are mixing up two things here: Criticism of the term IP (that is the section "Arguments against the term" in this article) and "anti-IP rants", that is criticism of the scope and mechanism of IPRs. They are separate issues. Algae 08:36, 28 March 2006 (UTC)

I'm not mixing them up, I'm just talking about both of them. I think both should be in another article about criticisms of IP, including the term. I would only note that article briefly to point to it. Torokun 20:08, 28 March 2006 (UTC)

Torokun I think your comment right above me here is good. I think a criticisms of IP article would be good. But I also can't read this article without a knot in my stomach. Yes, I'm a geek, but I'll try and phrase objections as concrete questions: -"In law, intellectual property (IP)..." Is there an actual legal definition? When an article starts with "In law" or the like, I assume it's a term of art being described. -"a broad entitlement extending the concept of property" 1) Surely that's not using the legal meaning of 'entitlement'? 2) Is IP really seen (in the *law) as an extension of the concept of property? Or isn't that just a metaphor in the common parlance? Basically I think that the article attempts to be a legal summary when the term "intellectual property" is not strictly a legal one. If I rewrote it, it would start with "intellectual property is a metaphor used to describe the bundle of exclusive rights conferred upon the creators of intangible assetts (with almost all those words wikified) Mateo LeFou 18:59, 18 April 2006 (UTC)

Torokun, you may have already seen from earlier discussions that this has been something of a perennial issue and farming out the critique has been proposed before. The article started as a POV dump on the concept of intellectual property and has gradually evolved into something a little more useful and substantive but is still dominated by this other stuff. I'm with you on a renewed proposal to divide it out into its own article(s). 203.198.237.30 10:42, 20 April 2006 (UTC)

That's kinda my point: This is going to be a POV dump as long as the hermeneutic context is unspecified. If it discusses how the term is generally understood by the average joe, it should say that it's doing that. If it discusses the *legal term-of-art, it should provide the statute/code/whatev where the term is defined. What upsets geeks is the "common sense" understanding that ideas/etc. are *property and (e.g.) governed by laws regarding "theft". This is not the case, and this article suggests (by omission of context) that it is. Mateo LeFou 23:29, 23 April 2006 (UTC)

See idea-expression divide, referenced in first sentence of the article ("expressed form") and first paragraph of the Overview section. However, your comment (perenially raised) indicates that this fundamental point may not be sufficiently well made or lucid. Suggestions for how the article can better communicate the point? Separately, also note amendments to define IP as an "umbrella term". 203.198.237.30 08:59, 26 April 2006 (UTC)

The article you reference states "in the United States a patent is *not* restricted to a specific embodiment of an underlying idea" (emphasis mine) and the term "intellectual property" is as frequently applied to patents as to copyright. This article states "some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product". My comment is perenially raised exactly because patents cover ideas/methods/concepts, independent of embodiment. I maintain that "intellectual property" is a gestalt term for the ways that people are accustomed to thinking about the various kinds of control that they can exert over ideas (under patent law) and expressions (under copyright) -- despite the fact that these are distinct areas of law with their own peculiarities. This article states "Intellectual property laws vary from jurisdiction to jurisdiction" but as far as I know there is no "intellectual property" law in any jurisdiction, only patent/copyright/trademark laws. This article states "Intellectual property laws are designed to protect different forms of intangible subject matter" but elsewhere explains correctly that, in the example of trademark, the use of that form/expression is not what is protected. It is the use of that mark in conjunction with certain product lines. The trademark holder is only protect from *confusion with another merchant's products. This article states that the term "intellectual property" "was rarely used without scare quotes until about the time of the passage of the Bayh-Dole Act in 1980". I maintain that this custom was useful (and you can see I still employ it), as it emphasizes the fact that it is a metaphorical term, not a legal one. If it has been defined in law, that definition should form the basis of this article.

Mateo LeFou 02:19, 29 April 2006 (UTC)

If it's a metaphorical term, some semantic distinctions have been made to get to that point. The discrete subject matter protected by different forms of IP law and whatever pecularities subsist therein is not consistent with the validity and usefulness of the term. For patents, the protection is for inventions; for trademarks, the protection is for expressions (use in the marketplace). But are we getting off track? I'm not clear on the omission of context comment, because of the assumption made about the protectability of ideas per se. 203.198.237.30 09:32, 8 May 2006 (UTC)

Just a brief outline of my way of thinking, then I'll let it go: "intellectual property" strikes me as a term kinda like "War on Terrorism". Most people have a general concept of what you mean when you use the word; it encapsulates a *very wide variety of things, which have many different properties in different settings; its vagueness can be (but isn't necesarily always) exploited in service of an agenda; etc. You can write factually & precisely about *aspects of it -- the invasion of Afghanistan, Iraq, changes in U.S. domestic policy -- but it is not in fact an actual War according the historical/legal definition of the term. It's like the War on Drugs in that sense. If I had my way, this whole article would consist of pointers to copyright, trademark, "bundle of rights", etc. At least that way it wouldn't be overwhelmed by criticisms.

Myself, and notables such as Richard stallman, as well as signatories to the http://fsfeurope.org/documents/wiwo.en.html rename WIPO campaign consider the term 'Intellectual Property' a loaded term. I take pains to point out when I hear the term used that it conflates the terms 'intellectual' and 'property'. The result is that for the casual observer, the idea that ideas should be treated as property slips under the net of critical analysis. Given that there is substantive evidence that the term 'Intellectual Property' is held as a loaded term, and in itself carries POV, some form of note is necessary at the top of the subject to draw attention to the fact. Nick R Hill 21:52, 30 June 2006 (UTC)

Split

Intellectual property rights should be split out and made a subarticle of this topic. The topic of intellectual property is much broader than just intellectual property rights. savidan^{(talk) (e@)} 17:54, 23 June 2006 (UTC)

I do not concur. Intellectual property is meaningful only as a right. --Edcolins 09:27, 24 June 2006 (UTC)

Exclusive rights

moved this since it needs to be greatly simplified and made npov with respect to the terminology controversy. not sure there's much worth saving

The exclusive rights granted by intellectual property laws are generally negative in nature, and therefore only grant the holder of IP the ability to exclude third parties from infringing on their monopoly. For example, the owner of a registered trademark has an exclusive right to use their mark in relation to certain products or services, and can exclude others from using that mark in relation to those products or services (sometimes marks which are recognised as "famous" or "well known" are deemed to have developed sufficient goodwill and reputation to be protected across unrelated classes of products and services).

The exclusive rights conferred by intellectual property laws can generally be transferred (with or without consideration), licensed (or rented), or mortgaged to third parties. Like other forms of property, intellectual property (or rather the exclusive rights which subsist in the IP) can be transferred (with or without consideration) or licensed to third parties. In some jurisdictions it may also be possible to use intellectual property as security for a loan.

Exclusive rights are generally divided into two categories: those that grant exclusive rights only on copying/reproduction of the item or act protected (eg. copyright) and those that grant a right to prevent others from doing something. The difference between these is that a copyright would prevent someone from copying the material form of expression of an idea, but could not stop them from expressing the same idea in a different form, nor from using the same form of expression if they had no knowledge of the original held by the copyright holder. Patents and trade marks on the other hand, can be used to prevent that second person from making the same design even if they had never heard of or seen the claimed "property". Those rights must be applied for or registered and are more expensive to enforce.

There are also more specialized varieties of "sui generis" exclusive rights, such as circuit design rights (called mask work rights in USA law, protected under the Integrated Circuit Topography Act in Canadian law, and in European Union law by Directive 87/54/EEC of 16 December 1986 on the legal protection of topographies of semiconductor products), plant breeders' rights, plant variety rights, industrial design rights, supplementary protection certificates for pharmaceutical products and database rights (in European law).

Exclusive rights differ by subject matter, the actions they regulate with respect to the subject matter, the duration of particular exclusions, and the limitations on these rights. Policies are conventionally categorized according to subject matter, including inventions, artistic expression, secrets, and industrial designs.

Generally, the activity regulated by exclusive rights is unauthorized reproduction or commercial exploitation. However, as indicated above, some rights go beyond this to grant a full suite of exclusive rights on a particular idea or product. Generally, it is true to say that exclusive rights grant the holder the ability to stop others doing something (ie. a negative right.), but not necessarily a right to do it themselves (ie. a positive right). For example, the holder of a patent on a pharmaceutical product may be able to prevent others selling it, but (in most countries) cannot sell it themselves without a separate license from a regulatory authority.

Most exclusive rights are nothing more than the right to sue an infringer, which has the effect that people will approach the rightsholder for permission to perform the acts to which the rightsholder has exclusive right. The granting of this permission is termed licensing, and exclusive rights licenses stipulate the extent of the licensee's ability to perform the acts the rightsholder may control. Other kinds of licenses attempt to establish additional conditions beyond the acts the rightsholder may control, and these licenses are governed by general contract principles. In many jurisdictions the law places limits on what restrictions the licensor (the person granting the licence) can impose. In the European Union, for example, competition law has a strong influence on how licences are granted by large companies.

Copyright licenses grant permission to do something. A patent license is a declaration not to do some things, under certain conditions. Exclusive rights policies in certain countries provide for certain activities which do not require any license, such as reproduction of small amounts of texts, sometimes termed fair use. Many countries' legal systems afford compulsory licenses for particular activities, especially in the area of patent law.

Most exclusive rights are awarded by a government for a limited period of time. Economic theory typically suggests that a free market with no exclusive rights will lead to too little production of intellectual works relative to an efficient outcome ^{[citation needed]}. Thus by increasing rewards for authors, inventors and other producers of intellectual works, overall efficiency might be improved. On the other hand, granting exclusive rights is by no means the only viable method to finance "intellectual property" production in a market system [5]. "Intellectual property" law could in some circumstances lead to increased transaction costs that outweigh these gains (see Coase's Penguin). Another consideration is that restricting the free reuse of information and ideas will also have costs, where the use of the best available technique for a given task or the creation of a new derived work is prevented. Equally important, granting monopoly rights on production introduces a deadweight loss into the economy, and incentivizes rent seeking behavior. —Preceding unsigned comment added by AaronSw (talk • contribs)

This is an archive of past discussions about Intellectual property. Do not edit the contents of this page. If you wish to start a new discussion or revive an old one, please do so on the current talk page.

Archive 1

Archive 2

Archive 3