Here's an essay on IP which I wrote in 2006, winning a Trinity College English essay prize.
Intellectual Property: How effective are current IP Laws, and how applicable will they be in future?
The rights afforded to individuals, companies and organizations by the legal treatment of various forms of intellectual property (IP) are in many cases vital to protecting the value of investment in projects which produce non-physical results, such as composition, research and experimentation. Were it not for the guarantee of exclusivity provided by, for example, the patent system, there would be little advantage for companies investing time and money in development of new and innovative methods and products. Therefore, it is right that laws exist to give exclusivity and ownership rights to the originators of intellectual property. This is both for reasons of fairness and also in order to encourage competition, which will often lead to new ideas. People who develop such ideas, whether they be composers, artists, engineers or scientists, usually agree that any advancement in their area (subject to ethical concerns, if relevant) is a good thing, and so would support efforts to protect legal property. This is a common argument for having legal controls on intellectual property usage. Thus, the official purpose of the World Intellectual Property Organisation is to encourage creative activity and to promote the protection of intellectual property throughout the world.
However, there are problems with the present situation. Firstly, in practice commercial incentives frequently outweigh the desire of individuals to contribute to the knowledge of others in their field, and so strategic moves are made to take advantage of the law. The laws should therefore be structured to suppress this as much as possible, where enforcement might lead to a reduction in liberty for others, or there is a danger of misapplication. Aggressive patenting is a common exploitation of current laws. Secondly, the implementation of laws in this area often takes the term 'intellectual property' very literally, providing the holder the same sorts of protection as physical property without simultaneously giving a justification for why ideas should be treated in the same way. Thus even the term itself may be flawed and cause bias. Thirdly, Intellectual Property is an umbrella term for many different entities, and it is not initially clear that they should all be treated in the same way. Recently many new types of discovery and invention have been placed under this classification, such as computer software, the chemical composition of drugs, which perhaps ought to be available to all, and ideas relating to the human body such as the human genome. People regularly also now informally contribute intellectual property to web pages. Overall, changes are occurring quickly, and the law should be revised, taking into account the nature of new ideas, the worldwide implications of the legal protection, political repercussions of, for example, copyright extension, and ethical concerns, where individuals feel that they have a right to fair use of purchased media. Here I will outline the current situation in legal terms, particularly in the area of technology, the justification for the laws on a philosophical basis and places where things have 'gone wrong' with application of the law.
After an investigation of the present state of intellectual property law and how it is applied, it will become clear that if such considerations are not made, the international system will reach a state where there is widespread disagreement and corruption for commercial gain. There is already much academic thought which is against the present notion of intellectual property, and there are even campaigns against the use of the term itself (Richard Stallman and the Free Software Foundation at http://www.fsf.org/: defective by design campaign).
The foundation of intellectual property laws was intended to provide a temporary monopoly, that is, to fix the 'tragedy of the commons'. This can be described as the notion that "widespread public use of a commons leads to its inevitable depletion" (http://creativecommons.org/about/legal — Creative commons legal document). Thomas Jefferson poetically asserted that "He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine receives light without darkening me." In contrast to physical objects, ideas which are considered to be intellectual property such as art, inventions and computer software cannot be damaged or 'used up' if made accessible to all — thus, they do not need to be protected from the unauthorized use or abuse of others. In fact, to take the specific example of computer software, often due to the collaboration of many individuals, all of whom have access to entire specification of an idea, an product is developed which is vastly more useful than the original version. We see the same phenomenon with modern music mixing and podcasting — through the common availability of certain samples or full music tracks, people are able to produce new music which is sometimes more pleasing than the original. Another positive aspect of this is that individuals who many not otherwise have been creative in a particular field may produce high quality media, due to the low barrier of entry to production. Aside from political or commercial interests, this can only be a good thing, because it brings innovation and health into a field. It is immediately obvious that almost all forms of research thrive on this basis.
So, when ideas are shared and duplication is allowed or encouraged, there may be many benefits. However, there is a serious problem with this view: in a commercial setting, though the idea will not be diminished, its usefulness may. Once a company makes its privileged trade secrets and methods public, it loses the edge: they may be used by another company. Although the notion itself has not been lessened in any way (and may have been improved on) the value of owning the item is less because its original value came from its exclusivity. Pharmacy and engineering especially rely on originality, to support a suitable business model. A desirable situation would be one in which ideas could be distributed without causing these negative effects on the originator, whilst still benefiting others.
The law attempts to implement this using three forms of legislation. These are trade secrets, copyright and patent law. These all provide some form of temporary monopoly to the holder, with the intention that the ideas should be shared once the degree to which exclusivity is useful to the owner of the idea becomes negligible.
Trade secrets are a way for a subject to keep its own private methods and processes to itself, as they provide an advantage over competitors. An early example would be of a violin maker trying to keep a special formula for their varnish secret. This type of intellectual property is popular because there is no requirement of registration to protect something by this method: information is simply given in confidence. Legal enforcement comes into play when employees are provided with non-disclosure agreements (NDAs) so that the company may litigate if a secret leaks out. Trade secrets are frequently used in conjunction with patents.
The intended purpose of patents is to protect items which are sold, as these obviously cannot be made trade secrets — the idea is necessarily available already. Patents were originally given as a one off, as much as two hundred years ago. There are two requirements made on ideas which are patented. Firstly, they must be novel. This means that prior art (a previous invention which is similar) should stop patent acquisition, and even trade secrets should prevent patenting. (This is somewhat difficult to implement, but novel new ideas are being used which will be discussed later.) Secondly, the idea must be non-obvious to an expert in the field. Patents cannot be applied to the theory above the idea or the practicalities below.
The process of securing a patent on an idea involves sending off a form detailing the claims which are made, and attaching a cheque. The process is different in other countries, and the way the law works is often also different. For example, in the US the patent filer does not have to keep the idea secret for one year, even if the patent is not yet filed. After a year, patents may be extended to operate for twenty years (for a fee), and this is a very common occurrence. Shockingly, in Japan there was a recently queue for patent applications lasting until 2013. According to The Manufacturing Institute 'patent queues are evidence for government malfunction' (National Association of Manufacturers May 2006 IP study), so it is clear that even those who support restrictive patents are not happy with the current system.
Trademarks are another method of intellectual property protection. They afford the manufacturer the exclusive use of a mark identifying their product, such that a third party may not use the mark on their products. In practice, there are few cases of infringement in this area, as companies usually prefer to sue for any bad effects caused instead. A distinction is made between registered and unregistered trademarks: unregistered trademarks are obtained purely by marking the product with a logo, but for a small fee the patent office will register the trademark. This provides further legal backup through the Dispute Resolution Process, and is used frequently for web domain names as these are often a vital part of a business. Individuals can easily choose to register a name in good faith, which also happens to be the name of a corporation. In 1998 there was a dispute over the registration of the name Krupp by a German individual, where it was also the name of a company. The individual lost the case, but the domain name was not transferred to the company (http://www.law.ed.ac.uk/script/newscript/TradeMarks.htm — Trademarks and domain names). In such cases, the prosecution must show that actual damage was done to the business, which is difficult. Commonly a larger company wins on a technicality and the loser pays the winner's costs.
Copyright is a large area of intellectual property law. It applies to an expression of intellectual property in the form of literature, music, art, software, performance, drama, and so on. A recent high profile case was The Da Vinci Code author, Dan Brown, being prosecuted by the authors of The Holy Blood and the Holy Grail (http://news.bbc.co.uk/1/hi/entertainment/4754308.stm — Da Vinci Code 'copied book ideas') . This illustrates the distinction between instance and idea; the case was thrown out due to the fact that the newer book apparently did not copy verbatim from the older one. Coincidentally the case was also very good publicity for the book and film, which was released in the adjacent week.
Another interesting instance of copyright law application is that the actual typesetting of music on a page is copyrighted. The effort required to take a photograph is also enough to give rise to copyright (though the picture itself may contain other copyrighted elements). The law has been applied in relatively unknown areas recently, such as cases of celebrities copyrighting their identities for privacy. The Library of Congress recognises this in their copying policy (http://www.loc.gov/homepage/legal.html — Legal Notices (Library of Congress)).
There is no procedure for registering for copyright, but it is easier to prosecute if the material is marked with the word copyright, the date, and the originator. This has been the case since 1976 and then 1988 when the laws were revised. Unfortunately, there is little protection for those who infringe copyright accidentally. The duration of copyright validity is gradually increasing. Disney allegedly encouraged congress to extend the 1976 act, making copyright last for 95 years after the author's death, and was successful. The number of years copyright protects for is likely to increase in this way in future.
Copyright holders may sue the copier, and usually also have the backup of trademark if they require police intervention. Another huge area of copyright law is fair dealing (also known as fair use in the US), which is becoming more and more relevant now that it is so easy to make copies of particular expressions of ideas using digital technology; this can produce unlimited numbers of perfect copies. The Digital Millennium Copyright Act is designed to protect the interests of media creators and publishers, but has frequently been criticised for being too restrictive. For example, it seems that it is illegal to copy music from CDs for personal use on a device such as a portable Apple iPod music player (http://www.eff.org/deeplinks/archives/004409.php — RIAA Says Ripping CDs to Your iPod is NOT Fair Use).
The market for illegal copies of media has moved on significantly since the days when cassettes would be copied and sold cheaply on street corners; anyone with access to the Internet can download software which will convert music or films, whether they have been taken from a DVD, CD or recorded digitally using a DVB (Digital Video Broadcasting) television device, into a format suitable for mass storage. Fifty pounds' worth of storage hardware can contain over four hundred films at DVD quality. This facility is understandably causing widespread panic among music and film publishers and their associated industrial bodies. The Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) have prosecuted thousands of individuals in recent years for downloading films and music respectively. Unfortunately a number of very high profile cases have resulted in the prosecution of children who arguably did not understand the severity of their actions; their parents are often shocked by the news that their children are being asked to pay thousands' of dollars of fines. The unprecedented number of specific enforcements of intellectual property law caused by these cases is worrying, as the law was arguably set up to prosecute exceptions and to act as a deterrent, rather than as a way of making money. It is in the interests of organisations such as the RIAA/MPAA to perpetuate statistics claiming that record sales have been harmed, even though there are plenty of studies which cite other reasons for downturns in sales. These companies are also at the forefront of attempts to implement technologies such as Digital Rights Management (DRM). The naming of such technologies is designed to sound positive to consumers, even though they are heavily restrictive and inconvenient to normal users. The RIAA and MPAA have both been involved in the primary education sector in the US, in order to influence children about intellectual property protection from a young age.
Users of file sharing and transfer software often cite the lack of high quality media available in their area of the world, due to the fact that American film companies try to get films released in their own country first, for example. They also claim that were media available in a more convenient format and at a reasonable price, they would be happy to pay for it. This is certainly supported by statistics of sales from Apple's iTunes music store which has quickly become the most popular legal source of music on the Internet, even surpassing transfer quantities of most services which were used for illegal transfers.
There is substantial political and commercial pressure on governments to implement laws which protect music producers, and this is sometimes exerted in worrying ways. In the recent legal case where the MPAA accused the Swedish government of protecting the 'Pirate Bay' piracy site, which supported the use of innovative transfer software called BitTorrent to allow more efficient sending of files, there was a great deal of controversy over communications with the Swedish State Secretary. For example, consider the following somewhat threatening excerpt from a statement sent to Dan Eliasson: "As we discussed in our meeting, it is certainly not in Sweden's best interests to earn a reputation among other nations and trading partners as a place where utter lawlessness with respect to intellectual property rights is tolerated." (http://p2pnet.net/story/9431 – Statement to the Swedish Secretary of State about 'Pirate Bay'. 11th April 2006)
On a different scale, the need for personal licensing is growing due to the fact that more and more people are involved in 'blogging' and other forms of informal contribution of ideas to a knowledge base (such as 'wiki' systems) and 'podcasting'. The Creative Commons license is designed for this purpose, and steps users through a series of simple questions, eventually outputting a link to a carefully written legal document. The system allows the owner to choose whether users of their contribution must give attribution when they copy the material, whether it may be used for commercial purposes and whether the content may be used to create a derivative work. The licenses provide protection for people who can't or do not wish to afford a large legal team. This seems to be an excellent phenomenon and is geared toward the notion that sharing ideas is a good thing.
A tangent into the area of computer software is informative. Other schemes similar to the Creative Commons license exist, such as the GNU public license, for making the code description of software publicly accessible; this is necessary for people to modify the functioning of software and add features. An intentional side effect is that the software becomes completely free to use as well as modify. However, this throws up another set of issues. The license permits commercial uses, but at the same time requires that modifications are contributed back to the project. The intention of this is that improvements become available to all. Effectively, the license 'contaminates' any commercial software it is used in, though it is only the modified part of the software which must be contributed back. Google provide the modified source code for some of their search appliances, as these devices make use of the open source Linux operating system. Microsoft, which has a competitor to Linux in the Windows operating system, interestingly both avoids such open source software (so-called due to the free availability of the source code) and also tries to prevent its use as much as possible. This is illustrated by their hesitance to conform to any standardisation efforts which permit interaction of computer systems, and also by the restrictions they make on software developed using their systems. In future there is a possibility that a payment would be required to make software which would run correctly on their software. This is already becoming the situation with music and films which are to be playable at the highest possible quality (high definition and above) on the next version of their operating system. This limits the capabilities of individual programmers or content producers who do not have the assets of the large companies Microsoft is targeting with these rules. One viewpoint on Microsoft's motivations here is that they see that open source software is a dangerous competitor to their business model (proprietary systems and closed source software versus freely available, modifiable, standards-compliant software) and thus they wish to exclude individual programmers from working on software licensed in this manner from making their products available on Windows. There are large companies (in particular, IBM, Google, Novell, the BBC and many telecommunications companies) which pay for development of free/open source software, as they see the advantages which it offers. Microsoft does not seem to be operating in good faith in this area, as their actions harm the competition; they have been involved in "a series of exclusionary, anticompetitive, and predatory acts to maintain [their] monopoly power" according to the antitrust cast against them (http://www.usdoj.gov/atr/cases/f4400/4469.htm — DOJ/Antitrust: Microsoft Conclusions of Law and Final Order) and most of their actions were in the area of intellectual property.
Before the issues with intellectual property laws can be examined further, it is useful to pin down the exact meaning of what intellectual property is empirically and from a philosophical basis.
As far is possible, taking what seems to be fair and beneficial for individuals and companies, laws should be formulated independent of bias, political influence and commercial motivations. This would facilitate justifiable applications of laws. Ideally the laws would be sufficiently descriptive to avoid the necessity of compromises between parties: producers of music and purchasers of music should agree completely and be happy with the contract that they are making, as far as uses are reasonable. Of course, such a situation is almost impossible in practice.
The two conflicting notions are first that information should be freely available because it benefits everyone, and secondly that if I derive information through effort, time or financial investment I should be permitted to specify limitations on its use. Abstracting away from the term intellectual property may be informative because the term biases us towards viewing it as a resource which is depleted. Intellectual property cannot be locked away, and even if it could it would not be useful in that form.
Anti-realists take the view that statements are made true not by some correspondence to an independent world of truths, but by fitting in coherently with other statements believed to be true. People who have this view point do not see their intellectual property as being inherently special, because the same idea is available to those who share their beliefs about things. For instance, if I invent a way of painting a wall, the only way I know that it's best is if it fits in with other people's beliefs about being the 'best' way. Hence there is no objective criterion for judging it to be the best and so the truth of the statement 'I have the best method for painting a wall' is contingent on others' beliefs about painting and the best method for doing so. Therefore there is nothing particularly special about my method.
Another viewpoint is that of a realist. Realists believe that there is something particular to be owned independently of others, and my intellectual property is my link with the idea as an objective truth. Consider the case where I know the value of the Hubble constant. This is special because I have established a link with an objective truth, and I may choose how I wish to share that link. This may give me certain advantages and I have an interest in defending the 'property'.
A final possible viewpoint is that intellectual property is unrelated to ascertaining some truth, but there are many problems with this, and it is not useful for a scientific treatment — the other two viewpoints are compatible even with judgements of artistic aestheticism, and it is difficult if not impossible to find ideas which do not fit in either as a matter of consensus as in case one, or 'fact' as in case two.
The philosophical treatment thus leads us to two classifications. We will now to try derive rules for how usage of ideas should work, based on these two ways of looking at the issue.
In the first case, ideas seem to be available to all who share my beliefs about the world, and hence I have not gained ownership of anything unique. However, I may have put effort into deriving the idea or getting inspiration, and hence deserve to be rewarded for making a contribution to human knowledge. The question is whether we can place value on being the first person to derive the idea, and hence work out whether exclusivity is deserved.
Conversely, the second case seems to fit more elegantly with the view of intellectual property as being like physical items; the owner of the knowledge has acquired something unique and special which was not necessarily available. Again, the effort of getting the idea should be rewarded, and also there is an additional level of ownership because the metaphorical link to the objective truth which has been taken is now 'owned' by the originator of the idea.
The common feature here is that in both cases the ideas seem to have some level of belonging to common knowledge, and so common ownership should be available. For those who support more control over intellectual property, the second idea indicates that the originator may assert some ownership. A balance between contribution to human knowledge as a whole, and also rewarding and keeping an owner's entitlement is necessary. It is important to note that ethical concerns may override this argument. Consider the case where a vaccine is invented by a large corporation which is cheap to produce; if the disease becomes epidemic it would be unethical for the company not to offer the vaccine charitably and instead to attempt to make profit taking advantage of the disease's prevalence. Another case where ethics come into play is the patenting of information about human DNA; there was recently a rush between certain US companies and Cambridge University to patent or secure prior art for information about the human genome. Clearly this sort of information will be valuable to all, and does not belong to one particular company.
A radically different and more extreme viewpoint comes from an extension of the anti-realist viewpoint: just like a derivation of a formula in mathematics, ideas belong to a generic mass of knowledge which should inherently be free. There are concerns about the viability of such an idea, some of which have been answered by the free software movement in recent years: is such an approach viable commercially? The answer seems to have tentatively been yes. Companies providing free software often charge only where direct individual human effort or expense is involved, such as in customer support. It is unclear whether it would still be commercially viable to produce software if such an approach to business became widespread, but it is abundantly clear that the open source approach leads to a great deal of innovation and improvement in computer software. It seems that gradually the same is becoming true for other media where anyone has tools available to produce derivative works, such as individuals producing music based on samples. Non-fiction also benefits from this methodology, evidenced by the popularity and usefulness of the 'wiki'-based Wikipedia website. Films are a more difficult area, however, due to the high barrier of entry. Fiction is similar in that the actual expense in time and money of producing media is so great that an open-source style approach will not be practicable.
Thus, we see that many problems with the current system can be dealt with by a middle way between total exclusivity and unrestricted use, modification and copying. It is vital that people have the legal capability to use a license of their choosing, basing their choice on both commercial interests and also moving the field in which they are working onwards.
The balance is difficult, and intellectual property law's laxity in some areas and restrictiveness in others have led to many spurious applications of the law, or situations where intervention on a case-by-case basis would have been better.
There were problems in the 18th and 19th centuries when the laws were first brought in to foster innovation. In the US, laws of the time were less restrictive than those in other countries and in some cases non-existent. Thus when editions of Charles Dickens novels were printed in the UK, the books would be exported to the US and be copied or reprinted and sold.
We are now seeing a resurgence of problems with the laws. Unfortunately there is a minefield of legal problems caused by the nature of freely available and modifiable intellectual property. Patents interact particularly badly with free software, because, for example, if Microsoft chooses and is permitted to patent a list of actions to be completed (also known as a to-do list) available in a piece of software, as has actually occurred (US patent number 6,748,582), open source software can obviously not use such a feature without infringing the patent. The issue here is clearly the fact that the idea subject to patenting is far too general, not innovative, and has prior art existing. The problem lies not only with the implementation of the law, however, as the law itself was not designed to cope with such notions, where the body of accumulated knowledge is so large and diverse in terms of licensing. Patents of this sort are inevitable requirements for large companies in the area, even IBM who have a much better record of supporting intellectual property freedom, and most large companies file tens of so-called 'defensive' patents every week, or more. The scope of patent law is gradually being pushed greater and greater, so that now even simple business methods which might be obvious such as Amazon's One-Click buying system can be patented without problems.
Non-disclosure agreements, a way of securing trade secrets with legal backup, are also stifling innovation, where originally they were designed to encourage it. Dallas Micro Controllers do not provide information for integrating their products without payment licensing fees. This causes problems for individuals who want to experiment in electronics — commercial interests are prioritised over public welfare. Trade secrets are also flawed in that it's impossible to prove whether an idea was leaked rather than merely reverse engineered. Attempts have been made to solve this with further legislation by, for example, the DMCA (Digital Millennium Copyright Act) which stipulates that it is illegal even to attempt to circumvent a intellectual property protection technology.
It is clear that there is no 'silver bullet' to ameliorate the difficulties caused by disagreements over the issues discussed here. There is currently no positive legislation in the direction of forcing companies who have used patents strategically to support others, (including free software) but it is unlikely that this would be brought in — there is too much pressure from government, and often those in power do not sufficiently appreciate the details of particular areas of knowledge to make informed decisions. In the future, seeing the advantages of opening intellectual property in many areas where currently older laws are being applied, companies are likely to embrace these new business models, creating a world in which information is shared freely and everyone can benefit from new discoveries.