Human nature

From Wikipedia, the free encyclopedia

Human nature is a bundle of fundamental characteristics—including ways of thinking, feeling, and acting—which humans tend to have naturally.

The questions of whether there truly are fixed characteristics, what these natural characteristics are, and what causes them are among the oldest and most important questions in philosophy and science. The science that examines human nature is known as psychology and more recently also neuroscience. The concept of human nature is traditionally contrasted not only with unusual human characteristics, but also with characteristics which are derived from specific cultures, and upbringings. The "nature versus nurture" debate is a well-known modern discussion about human nature in the natural science.

These questions have particularly important implications in economics, ethics, politics, and theology. This is partly because human nature can be regarded as both a source of norms of conduct or ways of life, as well as presenting obstacles or constraints on living a good life. The complex implications of such questions are also dealt with in art and literature, the question of what it is to be human.

Overview

The concept of nature as a standard by which to make judgments is traditionally said to have begun in Greek philosophy, at least as regards the Western and Middle Eastern languages and perspectives which are heavily influenced by it.

The teleological approach of Aristotle came to be dominant by late classical and medieval times. By this account, human nature really causes humans to become what they become, and so it exists somehow independently of individual humans. This in turn has been understood as also showing a special connection between human nature and divinity. This approach understands human nature in terms of final and formal causes. In other words, nature itself (or a nature-creating divinity) has intentions and goals, similar somehow to human intentions and goals, and one of those goals is humanity living naturally. Such understandings of human nature see this nature as an "idea", or "form" of a human.

However, the existence of this invariable and metaphysical human nature is a subject of much historical debate, continuing into modern times. Against this idea of a fixed human nature, the relative malleability of man has been argued especially strongly in recent centuries—firstly by early modernists such as Thomas Hobbes and Jean-Jacques Rousseau. In Rousseau's Emile, or On Education, Rousseau wrote: "We do not know what our nature permits us to be". Since the early 19th century, thinkers such as Hegel, Marx, Kierkegaard, Nietzsche, Sartre, structuralists, and postmodernists have also sometimes argued against a fixed or innate human nature.

Charles Darwin's theory of evolution has changed the nature of the discussion, supporting the proposition that mankind's ancestors were not like mankind today. Still more recent scientific perspectives—such as behaviorism, determinism, and the chemical model within modern psychiatry and psychology—claim to be neutral regarding human nature. As in much of modern science, such disciplines seek to explain with little or no recourse to metaphysical causation. They can be offered to explain human nature's origins and underlying mechanisms, or to demonstrate capacities for change and diversity which would arguably violate the concept of a fixed human nature.

Classical Greek philosophy

Philosophy in classical Greece is the ultimate origin of the Western conception of the nature of a thing. According to Aristotle, the philosophical study of human nature itself originated with Socrates, who turned philosophy from study of the heavens to study of the human things. Socrates is said to have studied the question of how a person should best live, but he left no written works. It is clear from the works of his students Plato and Xenophon, and also by what was said about him by Aristotle (Plato's student), that Socrates was a rationalist and believed that the best life and the life most suited to human nature involved reasoning. The Socratic school was the dominant surviving influence in philosophical discussion in the Middle Ages, amongst Islamic, Christian, and Jewish philosophers.

The human soul in the works of Plato and Aristotle has a divided nature, divided in a specifically human way. One part is specifically human and rational, and divided into a part which is rational on its own, and a spirited part which can understand reason. Other parts of the soul are home to desires or passions similar to those found in animals. In both Aristotle and Plato, spiritedness (thumos) is distinguished from the other passions (epithumiai). The proper function of the "rational" was to rule the other parts of the soul, helped by spiritedness. By this account, using one's reason is the best way to live, and philosophers are the highest types of humans.

Aristotle—Plato's most famous student—made some of the most famous and influential statements about human nature. In his works, apart from using a similar scheme of a divided human soul, some clear statements about human nature are made:

• Man is a conjugal animal, meaning an animal which is born to couple when an adult, thus building a household (oikos) and, in more successful cases, a clan or small village still run upon patriarchal lines.
• Man is a political animal, meaning an animal with an innate propensity to develop more complex communities the size of a city or town, with a division of labor and law-making. This type of community is different in kind from a large family, and requires the special use of human reason.
• Man is a mimetic animal. Man loves to use his imagination (and not only to make laws and run town councils). He says "we enjoy looking at accurate likenesses of things which are themselves painful to see, obscene beasts, for instance, and corpses." And the "reason why we enjoy seeing likenesses is that, as we look, we learn and infer what each is, for instance, 'that is so and so.'"

For Aristotle, reason is not only what is most special about humanity compared to other animals, but it is also what we were meant to achieve at our best. Much of Aristotle's description of human nature is still influential today. However, the particular teleological idea that humans are "meant" or intended to be something has become much less popular in modern times.

For the Socratics, human nature, and all natures, are metaphysical concepts. Aristotle developed the standard presentation of this approach with his theory of four causes. Every living thing exhibits four aspects or "causes": matter, form, effect, and end. For example, an oak tree is made of plant cells (matter), grew from an acorn (effect), exhibits the nature of oak trees (form), and grows into a fully mature oak tree (end). Human nature is an example of a formal cause, according to Aristotle. Likewise, to become a fully actualized human being (including fully actualizing the mind) is our end. Aristotle (Nicomachean Ethics, Book X) suggests that the human intellect (νούς) is "smallest in bulk" but the most significant part of the human psyche, and should be cultivated above all else. The cultivation of learning and intellectual growth of the philosopher, which is thereby also the happiest and least painful life.

In Chinese thought

Human nature is a central question in Chinese philosophy. Human nature was considered by Confucius and Mencius to be essentially good. From the Song dynasty the theory of the original goodness of human beings dominated Confucian thought. However, Hsun Tzu taught that human nature was essentially evil. As suggested by these contrasting views, the question of human nature has generated a long debate among Chinese thinkers.

Christian theology

In Christian theology, there are two ways of "conceiving human nature". The first is "spiritual, Biblical, and theistic", whereas the second is "natural, cosmical, and anti-theistic". The focus in this section is on the former. As William James put it in his study of human nature from a religious perspective, "religion" has a "department of human nature".

Various views of human nature have been held by theologians. However, there are some "basic assertions" in all "biblical anthropology".

1. "Humankind has its origin in God, its creator."
2. "Humans bear the 'image of God'."
3. Humans are "to rule the rest of creation".

The Bible contains no single "doctrine of human nature". Rather, it provides material for more philosophical descriptions of human nature. For example, Creation as found in the Book of Genesis provides a theory on human nature.

Catechism of the Catholic Church in chapter "Dignity of the human person" has article about man as image of God, vocation to beatitude, freedom, human acts, passions, moral conscience, virtues and sin.

Created human nature

As originally created, the Bible describes "two elements" in human nature: "the body and the breath or spirit of life breathed into it by God". By this was created a "living soul", that is, a "living person". According to Genesis 1:27, this living person was made in the "image of God". From the biblical perspective, "to be human is to bear the image of God".

"Two main modes of conceiving human nature—the one of which is spiritual, Biblical, and theistic," and the other "natural, cosmical, and anti-theistic." John Tulloch

Genesis does not elaborate the meaning of "the image of God", but scholars find suggestions. One is that being created in the image of God distinguishes human nature from that of the beasts. Another is that as God is "able to make decisions and rule" so humans made in God's image are "able to make decisions and rule". A third is that mankind possesses an inherent ability "to set goals" and move toward them. That God denoted creation as "good" suggests that Adam was "created in the image of God, in righteousness."

Adam was created with ability to make "right choices", but also with the ability to choose sin, by which he fell from righteousness into a state of "sin and depravity". Thus, according to the Bible, "humankind is not as God created it".

Fallen human nature

By Adam's fall into sin, "human nature" became "corrupt", although it retains the image of God. Both the Old Testament and the New Testament teach that "sin is universal". For example, Psalm 51:5 reads: "For behold I was conceived in iniquities; and in sins did my mother conceive me." Jesus taught that everyone is a "sinner naturally" because it is mankind's "nature and disposition to sin". Paul, in Romans 7:18, speaks of his "sinful nature".

Such a "recognition that there is something wrong with the moral nature of man is found in all religions". Augustine of Hippo coined a term for the assessment that all humans are born sinful: original sin. Original sin is "the tendency to sin innate in all human beings". The doctrine of original sin is held by the Catholic Church and most mainstream Protestant denominations, but rejected by the Eastern Orthodox Church, which holds the similar doctrine of ancestral fault.

"The corruption of original sin extends to every aspect of human nature": to "reason and will" as well as to "appetites and impulses". This condition is sometimes called "total depravity". Total depravity does not mean that humanity is as "thoroughly depraved" as it could become. Commenting on Romans 2:14, John Calvin writes that all people have "some notions of justice and rectitude ... which are implanted by nature" all people.

Adam embodied the "whole of human nature" so when Adam sinned "all of human nature sinned". The Old Testament does not explicitly link the "corruption of human nature" to Adam's sin. However, the "universality of sin" implies a link to Adam. In the New Testament, Paul concurs with the "universality of sin". He also makes explicit what the Old Testament implied: the link between humanity's "sinful nature" and Adam's sin In Romans 5:19, Paul writes, "through [Adam's] disobedience humanity became sinful". Paul also applied humanity's sinful nature to himself: "there is nothing good in my sinful nature."

The theological "doctrine of original sin" as an inherent element of human nature is not based only on the Bible. It is in part a "generalization from obvious facts" open to empirical observation.

Empirical view

A number of experts on human nature have described the manifestations of original (i.e., the innate tendency to) sin as empirical facts.

• Biologist Richard Dawkins in his The Selfish Gene states that "a predominant quality" in a successful surviving gene is "ruthless selfishness". Furthermore, "this gene selfishness will usually give rise to selfishness in individual behavior".
• Child psychologist Burton L. White, PhD, finds a "selfish" trait in children from birth, a trait that expresses itself in actions that are "blatantly selfish."
• Sociologist William Graham Sumner finds it a fact that "everywhere one meets "fraud, corruption, ignorance, selfishness, and all the other vices of human nature". He enumerates "the vices and passions of human nature" as "cupidity, lust, vindictiveness, ambition, and vanity". Sumner finds such human nature to be universal: in all people, in all places, and in all stations in society.
• Psychiatrist Thomas Anthony Harris, MD, on the basis of his "data at hand", observes "sin, or badness, or evil, or 'human nature', whatever we call the flaw in our species, is apparent in every person". Harris calls this condition "intrinsic badness" or "original sin".

Empirical discussion questioning the genetic exclusivity of such an intrinsic badness proposition is presented by researchers Elliott Sober and David Sloan Wilson. In their book, Unto Others: The Evolution and Psychology of Unselfish Behavior, they propose a theory of multilevel group selection in support of an inherent genetic "altruism" in opposition to the original sin exclusivity for human nature.

Realistic view

Liberal theologians in the early 20th century described human nature as "basically good" needing only "proper training and education". But the above examples document the return to a "more realistic view" of human nature "as basically sinful and self-centered". Human nature needs "to be regenerated ... to be able to live the unselfish life".

Regenerated human nature

According to the Bible, "Adam's disobedience corrupted human nature" but God mercifully "regenerates". "Regeneration is a radical change" that involves a "renewal of our [human] nature". Thus, to counter original sin, Christianity purposes "a complete transformation of individuals" by Christ.

The goal of Christ's coming is that fallen humanity might be "conformed to or transformed into the image of Christ who is the perfect image of God", as in 2 Corinthians 4:4. The New Testament makes clear the "universal need" for regeneration. A sampling of biblical portrayals of regenerating human nature and the behavioral results follow.

• being "transformed by the renewing of your minds" (Romans 12:2)
• being transformed from one's "old self" (or "old man") into a "new self" (or "new man") (Col.3:9-10)
• being transformed from people who "hate others" and "are hard to get along with" and who are "jealous, angry, and selfish" to people who are "loving, happy, peaceful, patient, kind, good, faithful, gentle, and self-controlled" (Galatians 5:20-23)
• being transformed from looking "to your own interests" to looking "to the interests of others" (Philippians 2:4)

Early modern philosophy

One of the defining changes that occurred at the end of the Middle Ages was the end of the dominance of Aristotelian philosophy, and its replacement by a new approach to the study of nature, including human nature. In this approach, all attempts at conjecture about formal and final causes were rejected as useless speculation. Also, the term "law of nature" now applied to any regular and predictable pattern in nature, not literally a law made by a divine lawmaker, and, in the same way, "human nature" became not a special metaphysical cause, but simply whatever can be said to be typical tendencies of humans.

Although this new realism applied to the study of human life from the beginning—for example, in Machiavelli's works—the definitive argument for the final rejection of Aristotle was associated especially with Francis Bacon. Bacon sometimes wrote as if he accepted the traditional four causes ("It is a correct position that "true knowledge is knowledge by causes". And causes again are not improperly distributed into four kinds: the material, the formal, the efficient, and the final") but he adapted these terms and rejected one of the three:

But of these the final cause rather corrupts than advances the sciences, except such as have to do with human action. The discovery of the formal is despaired of. The efficient and the material (as they are investigated and received, that is, as remote causes, without reference to the latent process leading to the form) are but slight and superficial, and contribute little, if anything, to true and active science.

This line of thinking continued with René Descartes, whose new approach returned philosophy or science to its pre-Socratic focus upon non-human things. Thomas Hobbes, then Giambattista Vico, and David Hume all claimed to be the first to properly use a modern Baconian scientific approach to human things.

Hobbes famously followed Descartes in describing humanity as matter in motion, just like machines. He also very influentially described man's natural state (without science and artifice) as one where life would be "solitary, poor, nasty, brutish and short". Following him, John Locke's philosophy of empiricism also saw human nature as a tabula rasa. In this view, the mind is at birth a "blank slate" without rules, so data are added, and rules for processing them are formed solely by our sensory experiences.

Jean-Jacques Rousseau pushed the approach of Hobbes to an extreme and criticized it at the same time. He was a contemporary and acquaintance of Hume, writing before the French Revolution and long before Darwin and Freud. He shocked Western civilization with his Second Discourse by proposing that humans had once been solitary animals, without reason or language or communities, and had developed these things due to accidents of pre-history. (This proposal was also less famously made by Giambattista Vico.) In other words, Rousseau argued that human nature was not only not fixed, but not even approximately fixed compared to what had been assumed before him. Humans are political, and rational, and have language now, but originally they had none of these things. This in turn implied that living under the management of human reason might not be a happy way to live at all, and perhaps there is no ideal way to live. Rousseau is also unusual in the extent to which he took the approach of Hobbes, asserting that primitive humans were not even naturally social. A civilized human is therefore not only imbalanced and unhappy because of the mismatch between civilized life and human nature, but unlike Hobbes, Rousseau also became well known for the suggestion that primitive humans had been happier, "noble savages".

Rousseau's conception of human nature has been seen as the origin of many intellectual and political developments of the 19th and 20th centuries. He was an important influence upon Kant, Hegel, and Marx, and the development of German idealism, historicism, and romanticism.

What human nature did entail, according to Rousseau and the other modernists of the 17th and 18th centuries, were animal-like passions that led humanity to develop language and reasoning, and more complex communities (or communities of any kind, according to Rousseau).

In contrast to Rousseau, David Hume was a critic of the oversimplifying and systematic approach of Hobbes, Rousseau, and some others whereby, for example, all human nature is assumed to be driven by variations of selfishness. Influenced by Hutcheson and Shaftesbury, he argued against oversimplification. On the one hand, he accepted that, for many political and economic subjects, people could be assumed to be driven by such simple selfishness, and he also wrote of some of the more social aspects of "human nature" as something which could be destroyed, for example if people did not associate in just societies. On the other hand, he rejected what he called the "paradox of the sceptics", saying that no politician could have invented words like "'honourable' and 'shameful,' 'lovely' and 'odious,' 'noble' and 'despicable'", unless there was not some natural "original constitution of the mind".

Hume—like Rousseau—was controversial in his own time for his modernist approach, following the example of Bacon and Hobbes, of avoiding consideration of metaphysical explanations for any type of cause and effect. He was accused of being an atheist. He wrote:

We needn't push our researches so far as to ask "Why do we have humanity, i.e. a fellow-feeling with others?" It's enough that we experience this as a force in human nature. Our examination of causes must stop somewhere.

After Rousseau and Hume, the nature of philosophy and science changed, branching into different disciplines and approaches, and the study of human nature changed accordingly. Rousseau's proposal that human nature is malleable became a major influence upon international revolutionary movements of various kinds, while Hume's approach has been more typical in Anglo-Saxon countries, including the United States.

Natural science

Charles Darwin gave a widely accepted scientific argument for what Rousseau had already argued from a different direction, that humans and other animal species have no truly fixed nature, at least in the very long term. However, he also gave modern biology a new way of understanding how human nature does exist in a normal human time-frame, and how it is caused.

E. O. Wilson's sociobiology and closely related theory of evolutionary psychology give scientific arguments against the "tabula rasa" hypotheses of Hobbes, Locke, and Rousseau.

In his book Consilience: The Unity of Knowledge (1998), Wilson claimed that it was time for a cooperation of all the sciences to explore human nature. He defined human nature as a collection of epigenetic rules: the genetic patterns of mental development. Cultural phenomena, rituals, etc. are products, not part of human nature. Until now, these phenomena were only part of psychological, sociological, and anthropological studies. Wilson proposes that they can be part of interdisciplinary research.

Emotional intelligence

From Wikipedia, the free encyclopedia

Emotional intelligence (EI), Emotional leadership (EL), Emotional quotient (EQ) and Emotional Intelligence Quotient (EIQ), is the capability of individuals to recognize their own emotions and those of others, discern between different feelings and label them appropriately, use emotional information to guide thinking and behavior, and manage and/or adjust emotions to adapt to environments or achieve one's goal(s).

Although the term first appeared in a 1964 paper by Michael Beldoch, it gained popularity in the 1995 book by that title, written by author and science journalist Daniel Goleman. Since this time, Goleman's 1995 analysis of EI has been criticized within the scientific community, despite prolific reports of its usefulness in the popular press.

Empathy is typically associated with EI, because it relates to an individual connecting their personal experiences with those of others. However, a number of models exist that aim to measure levels of (empathy) EI. There are currently several models of EI. Goleman's original model may now be considered a mixed model that combines what has since been modeled separately as ability EI and trait EI. Goleman defined EI as the array of skills and characteristics that drive leadership performance. The trait model was developed by Konstantin Vasily Petrides in 2001. It "encompasses behavioral dispositions and self perceived abilities and is measured through self report". The ability model, developed by Peter Salovey and John Mayer in 2004, focuses on the individual's ability to process emotional information and use it to navigate the social environment.

Studies have shown that people with high EI have greater mental health, job performance, and leadership skills although no causal relationships have been shown and such findings are likely to be attributable to general intelligence and specific personality traits rather than emotional intelligence as a construct. For example, Goleman indicated that EI accounted for 67% of the abilities deemed necessary for superior performance in leaders, and mattered twice as much as technical expertise or IQ. Other research finds that the effect of EI on leadership and managerial performance is non-significant when ability and personality are controlled for, and that general intelligence correlates very closely with leadership. Markers of EI and methods of developing it have become more widely coveted in the past decade. In addition, studies have begun to provide evidence to help characterize the neural mechanisms of emotional intelligence.

Criticisms have centered on whether EI is a real intelligence and whether it has incremental validity over IQ and the Big Five personality traits.

History

The term "emotional intelligence" seems first to have appeared in a 1964 paper by Michael Beldoch, and in the 1966 paper by B. Leuner entitled Emotional intelligence and emancipation which appeared in the psychotherapeutic journal: Practice of child psychology and child psychiatry.

In 1983, Howard Gardner's Frames of Mind: The Theory of Multiple Intelligences introduced the idea that traditional types of intelligence, such as IQ, fail to fully explain cognitive ability. He introduced the idea of multiple intelligences which included both interpersonal intelligence (the capacity to understand the intentions, motivations and desires of other people) and intrapersonal intelligence (the capacity to understand oneself, to appreciate one's feelings, fears and motivations).

The term subsequently appeared in Wayne Payne's doctoral thesis, A Study of Emotion: Developing Emotional Intelligence in 1985.

The first published use of the term 'EQ' (Emotional Quotient) is an article by Keith Beasley in 1987 in the British Mensa magazine.

In 1989 Stanley Greenspan put forward a model to describe EI, followed by another by Peter Salovey and John Mayer published in the following year.

However, the term became widely known with the publication of Goleman's book: Emotional Intelligence – Why it can matter more than IQ (1995). It is to this book's best-selling status that the term can attribute its popularity. Goleman has followed up with several further popular publications of a similar theme that reinforce use of the term. To date, tests measuring EI have not replaced IQ tests as a standard metric of intelligence. Emotional Intelligence has also received criticism on its role in leadership and business success.

The distinction between trait emotional intelligence and ability emotional intelligence was introduced in 2000.

Definitions

Emotional intelligence has been defined as "the ability to monitor one's own and other people's emotions, to discriminate between different emotions and label them appropriately, and to use emotional information to guide thinking and behavior" by Peter Salovey and John Mayer. This definition was later broken down and refined into four proposed abilities: perceiving, using, understanding, and managing emotions. These abilities are distinct yet related. Emotional intelligence also reflects abilities to join intelligence, empathy and emotions to enhance thought and understanding of interpersonal dynamics. However, substantial disagreement exists regarding the definition of EI, with respect to both terminology and operationalizations. Currently, there are three main models of EI:

1. Ability model
2. Mixed model (usually subsumed under trait EI)
3. Trait model

Different models of EI have led to the development of various instruments for the assessment of the construct. While some of these measures may overlap, most researchers agree that they tap different constructs.

Specific ability models address the ways in which emotions facilitate thought and understanding. For example, emotions may interact with thinking and allow people to be better decision makers (Lyubomirsky et al. 2005). A person who is more responsive emotionally to crucial issues will attend to the more crucial aspects of his or her life. Aspects of emotional facilitation factor is to also know how to include or exclude emotions from thought depending on context and situation. This is also related to emotional reasoning and understanding in response to the people, environment and circumstances one encounters in his or her day-to-day life.

Ability model

Salovey and Mayer's conception of EI strives to define EI within the confines of the standard criteria for a new intelligence. Following their continuing research, their initial definition of EI was revised to "The ability to perceive emotion, integrate emotion to facilitate thought, understand emotions and to regulate emotions to promote personal growth." However, after pursuing further research, their definition of EI evolved into "the capacity to reason about emotions, and of emotions, to enhance thinking. It includes the abilities to accurately perceive emotions, to access and generate emotions so as to assist thought, to understand emotions and emotional knowledge, and to reflectively regulate emotions so as to promote emotional and intellectual growth."

The ability-based model views emotions as useful sources of information that help one to make sense of and navigate the social environment. The model proposes that individuals vary in their ability to process information of an emotional nature and in their ability to relate emotional processing to a wider cognition. This ability is seen to manifest itself in certain adaptive behaviors. The model claims that EI includes four types of abilities:

1. Perceiving emotions – the ability to detect and decipher emotions in faces, pictures, voices, and cultural artifacts—including the ability to identify one's own emotions. Perceiving emotions represents a basic aspect of emotional intelligence, as it makes all other processing of emotional information possible.
2. Using emotions – the ability to harness emotions to facilitate various cognitive activities, such as thinking and problem solving. The emotionally intelligent person can capitalize fully upon his or her changing moods in order to best fit the task at hand.
3. Understanding emotions – the ability to comprehend emotion language and to appreciate complicated relationships among emotions. For example, understanding emotions encompasses the ability to be sensitive to slight variations between emotions, and the ability to recognize and describe how emotions evolve over time.
4. Managing emotions – the ability to regulate emotions in both ourselves and in others. Therefore, the emotionally intelligent person can harness emotions, even negative ones, and manage them to achieve intended goals.

The ability EI model has been criticized in the research for lacking face and predictive validity in the workplace. However, in terms of construct validity, ability EI tests have great advantage over self-report scales of EI because they compare individual maximal performance to standard performance scales and do not rely on individuals' endorsement of descriptive statements about themselves.^[45]

Measurement

The current measure of Mayer and Salovey's model of EI, the Mayer-Salovey-Caruso Emotional Intelligence Test (MSCEIT) is based on a series of emotion-based problem-solving items. Consistent with the model's claim of EI as a type of intelligence, the test is modeled on ability-based IQ tests. By testing a person's abilities on each of the four branches of emotional intelligence, it generates scores for each of the branches as well as a total score.

Central to the four-branch model is the idea that EI requires attunement to social norms. Therefore, the MSCEIT is scored in a consensus fashion, with higher scores indicating higher overlap between an individual's answers and those provided by a worldwide sample of respondents. The MSCEIT can also be expert-scored, so that the amount of overlap is calculated between an individual's answers and those provided by a group of 21 emotion researchers.

Although promoted as an ability test, the MSCEIT is unlike standard IQ tests in that its items do not have objectively correct responses. Among other challenges, the consensus scoring criterion means that it is impossible to create items (questions) that only a minority of respondents can solve, because, by definition, responses are deemed emotionally "intelligent" only if the majority of the sample has endorsed them. This and other similar problems have led some cognitive ability experts to question the definition of EI as a genuine intelligence.

In a study by Føllesdal, the MSCEIT test results of 111 business leaders were compared with how their employees described their leader. It was found that there were no correlations between a leader's test results and how he or she was rated by the employees, with regard to empathy, ability to motivate, and leader effectiveness. Føllesdal also criticized the Canadian company Multi-Health Systems, which administers the MSCEIT test. The test contains 141 questions but it was found after publishing the test that 19 of these did not give the expected answers. This has led Multi-Health Systems to remove answers to these 19 questions before scoring but without stating this officially.

Other measurements

Various other specific measures have also been used to assess ability in emotional intelligence. These measures include:

1. Diagnostic Analysis of Non-verbal Accuracy – The Adult Facial version includes 24 photographs of equal amount of happy, sad, angry, and fearful facial expressions of both high and low intensities which are balanced by gender. The tasks of the participants is to answer which of the four emotions is present in the given stimuli.
2. Japanese and Caucasian Brief Affect Recognition test – Participants try to identify 56 faces of Caucasian and Japanese individuals expressing seven emotions such happiness, contempt, disgust, sadness, anger, surprise, and fear, which may also trail off for 0.2 seconds to a different emotion.
3. Levels of Emotional Awareness Scale – Participants reads 26 social scenes and answers their anticipated feelings and continuum of low to high emotional awareness.

Mixed model

The model introduced by Daniel Goleman focuses on EI as a wide array of competencies and skills that drive leadership performance. Goleman's model outlines five main EI constructs (for more details see "What Makes A Leader" by Daniel Goleman, best of Harvard Business Review 1998):

1. Self-awareness – the ability to know one's emotions, strengths, weaknesses, drives, values and goals and recognize their impact on others while using gut feelings to guide decisions.
2. Self-regulation – involves controlling or redirecting one's disruptive emotions and impulses and adapting to changing circumstances.
3. Social skill – managing relationships to move people in the desired direction
4. Empathy – considering other people's feelings especially when making decisions
5. Motivation – being driven to achieve for the sake of achievement

Goleman includes a set of emotional competencies within each construct of EI. Emotional competencies are not innate talents, but rather learned capabilities that must be worked on and can be developed to achieve outstanding performance. Goleman posits that individuals are born with a general emotional intelligence that determines their potential for learning emotional competencies. Goleman's model of EI has been criticized in the research literature as mere "pop psychology" (Mayer, Roberts, & Barsade, 2008).

Measurement

Two measurement tools are based on the Goleman model:

1. The Emotional Competency Inventory (ECI), which was created in 1999, and the Emotional and Social Competency Inventory (ESCI), a newer edition of the ECI was developed in 2007. The Emotional and Social Competency – University Edition (ESCI-U) is also available. These tools developed by Goleman and Boyatzis provide a behavioral measure of the Emotional and Social competencies.
2. The Emotional Intelligence Appraisal, which was created in 2001 and which can be taken as a self-report or 360-degree assessment.

Trait model

Konstantinos Vasilis Petrides ("K. V. Petrides") proposed a conceptual distinction between the ability based model and a trait based model of EI and has been developing the latter over many years in numerous publications. Trait EI is "a constellation of emotional self-perceptions located at the lower levels of personality." In lay terms, trait EI refers to an individual's self-perceptions of their emotional abilities. This definition of EI encompasses behavioral dispositions and self-perceived abilities and is measured by self report, as opposed to the ability based model which refers to actual abilities, which have proven highly resistant to scientific measurement. Trait EI should be investigated within a personality framework. An alternative label for the same construct is trait emotional self-efficacy.

The trait EI model is general and subsumes the Goleman model discussed above. The conceptualization of EI as a personality trait leads to a construct that lies outside the taxonomy of human cognitive ability. This is an important distinction in as much as it bears directly on the operationalization of the construct and the theories and hypotheses that are formulated about it.

Measurement

There are many self-report measures of EI, including the EQ-i, the Swinburne University Emotional Intelligence Test (SUEIT), and the Schutte EI model. None of these assess intelligence, abilities, or skills (as their authors often claim), but rather, they are limited measures of trait emotional intelligence. The most widely used and widely researched measure of self-report or self-schema (as it is currently referred to) emotional intelligence is the EQ-i 2.0. Originally known as the BarOn EQ-i, it was the first self-report measure of emotional intelligence available, the only measure predating Goleman's best-selling book. There are over 200 studies that have used the EQ-i or EQ-i 2.0. It has the best norms, reliability, and validity of any self-report instrument and was the first one reviewed in Buros Mental Measures Book. The EQ-i 2.0 is available in many different languages as it is used worldwide.

The TEIQue provides an operationalization for the model of Petrides and colleagues, that conceptualizes EI in terms of personality. The test encompasses 15 subscales organized under four factors: well-being, self-control, emotionality, and sociability. The psychometric properties of the TEIQue were investigated in a study on a French-speaking population, where it was reported that TEIQue scores were globally normally distributed and reliable.

The researchers also found TEIQue scores were unrelated to nonverbal reasoning (Raven's matrices), which they interpreted as support for the personality trait view of EI (as opposed to a form of intelligence). As expected, TEIQue scores were positively related to some of the Big Five personality traits (extraversion, agreeableness, openness, conscientiousness) as well as inversely related to others (alexithymia, neuroticism). A number of quantitative genetic studies have been carried out within the trait EI model, which have revealed significant genetic effects and heritabilities for all trait EI scores. Two recent studies (one a meta-analysis) involving direct comparisons of multiple EI tests yielded very favorable results for the TEIQue.

General effects

A review published in the journal of Annual Psychology found that higher emotional intelligence is positively correlated with:

1. Better social relations for children – Among children and teens, emotional intelligence positively correlates with good social interactions, relationships and negatively correlates with deviance from social norms, anti-social behavior measured both in and out of school as reported by children themselves, their own family members as well as their teachers.
2. Better social relations for adults – High emotional intelligence among adults is correlated with better self-perception of social ability and more successful interpersonal relationships while less interpersonal aggression and problems.
3. Highly emotionally intelligent individuals are perceived more positively by others – Other individuals perceive those with high EI to be more pleasant, socially skilled and empathic to be around.
4. Better family and intimate relationships – High EI is correlated with better relationships with the family and intimate partners on many aspects.
5. Better academic achievement – Emotional intelligence is correlated with greater achievement in academics as reported by teachers but generally not higher grades once the factor of IQ is taken into account.
6. Better social relations during work performance and in negotiations – Higher emotional intelligence is correlated with better social dynamics at work as well as better negotiating ability.
7. Better psychological well-being - Emotional intelligence is positively correlated with higher life satisfaction, self-esteem and lower levels of insecurity or depression. It is also negatively correlated with poor health choices and behavior.
8. Allows for self-compassion - Emotionally intelligent individuals are more likely to have a better understanding of themselves, and to make conscious decisions based on emotion and rationale combined. Overall, it leads a person to self-actualization.

Criticisms of theoretical foundation

Cannot be recognized as form of intelligence

Goleman's early work has been criticized for assuming from the beginning that EI is a type of intelligence or cognitive ability. Eysenck (2000) writes that Goleman's description of EI contains unsubstantiated assumptions about intelligence in general, and that it even runs contrary to what researchers have come to expect when studying types of intelligence:

"[Goleman] exemplifies more clearly than most the fundamental absurdity of the tendency to class almost any type of behavior as an 'intelligence'... If these five 'abilities' define 'emotional intelligence', we would expect some evidence that they are highly correlated; Goleman admits that they might be quite uncorrelated, and in any case if we cannot measure them, how do we know they are related? So the whole theory is built on quicksand: there is no sound scientific basis."

Similarly, Locke (2005) claims that the concept of EI is in itself a misinterpretation of the intelligence construct, and he offers an alternative interpretation: it is not another form or type of intelligence, but intelligence—the ability to grasp abstractions—applied to a particular life domain: emotions. He suggests the concept should be re-labeled and referred to as a skill.

The essence of this criticism is that scientific inquiry depends on valid and consistent construct utilization, and that before the introduction of the term EI, psychologists had established theoretical distinctions between factors such as abilities and achievements, skills and habits, attitudes and values, and personality traits and emotional states. Thus, some scholars believe that the term EI merges and conflates such accepted concepts and definitions.

Confusing skills with moral qualities

Adam Grant warned of the common but mistaken perception of EI as a desirable moral quality rather than a skill, Grant asserting that a well-developed EI is not only an instrumental tool for accomplishing goals, but has a dark side as a weapon for manipulating others by robbing them of their capacity to reason.

Has little predictive value

Landy (2005) claimed that the few incremental validity studies conducted on EI have shown that it adds little or nothing to the explanation or prediction of some common outcomes (most notably academic and work success). Landy suggested that the reason why some studies have found a small increase in predictive validity is a methodological fallacy, namely, that alternative explanations have not been completely considered:

"EI is compared and contrasted with a measure of abstract intelligence but not with a personality measure, or with a personality measure but not with a measure of academic intelligence." Landy (2005)

Similarly, other researchers have raised concerns about the extent to which self-report EI measures correlate with established personality dimensions. Generally, self-report EI measures and personality measures have been said to converge because they both purport to measure personality traits. Specifically, there appear to be two dimensions of the Big Five that stand out as most related to self-report EI – neuroticism and extroversion. In particular, neuroticism has been said to relate to negative emotionality and anxiety. Intuitively, individuals scoring high on neuroticism are likely to score low on self-report EI measures.

The interpretations of the correlations between EI questionnaires and personality have been varied. The prominent view in the scientific literature is the Trait EI view, which re-interprets EI as a collection of personality traits.

Criticisms of measurement

Ability model

A speaker describes four stages of emotional intelligence: self-awareness, social consciousness, self-care and relationship management, as part of NAVAIR’s “Mentoring at the Speed of Life” event

Measures conformity, not ability

One criticism of the works of Mayer and Salovey comes from a study by Roberts et al. (2001), which suggests that the EI, as measured by the MSCEIT, may only be measuring conformity. This argument is rooted in the MSCEIT's use of consensus-based assessment, and in the fact that scores on the MSCEIT are negatively distributed (meaning that its scores differentiate between people with low EI better than people with high EI).

Measures knowledge, not ability

Further criticism has been leveled by Brody (2004), who claimed that unlike tests of cognitive ability, the MSCEIT "tests knowledge of emotions but not necessarily the ability to perform tasks that are related to the knowledge that is assessed". The main argument is that even though someone knows how he or she should behave in an emotionally laden situation, it doesn't necessarily follow that the person could actually carry out the reported behavior.

Measures personality and general intelligence

New research is surfacing that suggests that ability EI measures might be measuring personality in addition to general intelligence. These studies examined the multivariate effects of personality and intelligence on EI and also corrected estimates for measurement error (which is often not done in some validation studies)[cite source]. For example, a study by Schulte, Ree, Carretta (2004), showed that general intelligence (measured with the Wonderlic Personnel Test), agreeableness (measured by the NEO-PI), as well as gender could reliably be used to predict the measure of EI ability.

They gave a multiple correlation (R) of .81 with the MSCEIT (perfect prediction would be 1). This result has been replicated by Fiori and Antonakis (2011),; they found a multiple R of .76 using Cattell’s "Culture Fair" intelligence test and the Big Five Inventory (BFI); significant covariates were intelligence (standardized beta = .39), agreeableness (standardized beta = .54), and openness (standardized beta = .46). Antonakis and Dietz (2011a), who investigated the Ability Emotional Intelligence Measure found similar results (Multiple R = .69), with significant predictors being intelligence, standardized beta = .69 (using the Swaps Test and a Wechsler scales subtest, the 40-item General Knowledge Task) and empathy, standardized beta = .26 (using the Questionnaire Measure of Empathic Tendency)--see also Antonakis and Dietz (2011b), who show how including or excluding important controls variables can fundamentally change results—thus, it is important to always include important controls like personality and intelligence when examining the predictive validity of ability and trait EI models.

Self-report measures susceptible to faking

More formally termed socially desirable responding (SDR), faking good is defined as a response pattern in which test-takers systematically represent themselves with an excessive positive bias (Paulhus, 2002). This bias has long been known to contaminate responses on personality inventories (Holtgraves, 2004; McFarland & Ryan, 2000; Peebles & Moore, 1998; Nichols & Greene, 1997; Zerbe & Paulhus, 1987), acting as a mediator of the relationships between self-report measures (Nichols & Greene, 1997; Gangster et al., 1983).

It has been suggested that responding in a desirable way is a response set, which is a situational and temporary response pattern (Pauls & Crost, 2004; Paulhus, 1991). This is contrasted with a response style, which is a more long-term trait-like quality. Considering the contexts some self-report EI inventories are used in (e.g., employment settings), the problems of response sets in high-stakes scenarios become clear (Paulhus & Reid, 2001).

There are a few methods to prevent socially desirable responding on behavior inventories. Some researchers believe it is necessary to warn test-takers not to fake good before taking a personality test (e.g., McFarland, 2003). Some inventories use validity scales in order to determine the likelihood or consistency of the responses across all items.

Predictive power unsubstantiated

Landy distinguishes between the "commercial wing" and "the academic wing" of the EI movement, basing this distinction on the alleged predictive power of EI as seen by the two currents. According to Landy, the former makes expansive claims on the applied value of EI, while the latter is trying to warn users against these claims. As an example, Goleman (1998) asserts that "the most effective leaders are alike in one crucial way: they all have a high degree of what has come to be known as emotional intelligence. ...emotional intelligence is the sine qua non of leadership". In contrast, Mayer (1999) cautions "the popular literature's implication—that highly emotionally intelligent people possess an unqualified advantage in life—appears overly enthusiastic at present and unsubstantiated by reasonable scientific standards." Landy further reinforces this argument by noting that the data upon which these claims are based are held in "proprietary databases", which means they are unavailable to independent researchers for reanalysis, replication, or verification. Thus, the credibility of the findings cannot be substantiated in a scientific way, unless those datasets are made public and available for independent analysis.

In an academic exchange, Antonakis and Ashkanasy/Dasborough mostly agreed that researchers testing whether EI matters for leadership have not done so using robust research designs; therefore, currently there is no strong evidence showing that EI predicts leadership outcomes when accounting for personality and IQ. Antonakis argued that EI might not be needed for leadership effectiveness (he referred to this as the "curse of emotion" phenomenon, because leaders who are too sensitive to their and others' emotional states might have difficulty making decisions that would result in emotional labor for the leader or followers). A recently published meta-analysis seems to support the Antonakis position: In fact, Harms and Credé found that overall (and using data free from problems of common source and common methods), EI measures correlated only ρ = 0.11 with measures of transformational leadership. Ability-measures of EI fared worst (i.e., ρ = 0.04); the WLEIS (Wong-Law measure) did a bit better (ρ = 0.08), and the Bar-On measure better still (ρ = 0.18). However, the validity of these estimates does not include the effects of IQ or the big five personality, which correlate both with EI measures and leadership. In a subsequent paper analyzing the impact of EI on both job performance and leadership, Harms and Credé found that the meta-analytic validity estimates for EI dropped to zero when Big Five traits and IQ were controlled for. Joseph and Newman meta-analytically showed the same result for Ability EI.

However, it is important to note that self-reported and Trait EI measures retain a fair amount of predictive validity for job performance after controlling Big Five traits and IQ. Newman, Joseph, and MacCann contend that the greater predictive validity of Trait EI measures is due to their inclusion of content related to achievement motivation, self efficacy, and self-rated performance. Meta-analytic evidence confirms that self-reported emotional intelligence predicting job performance is due to mixed EI and trait EI measures' tapping into self-efficacy and self-rated performance, in addition to the domains of Neuroticism, Extraversion, Conscientiousness, and IQ. As such, the predictive ability of mixed EI to job performance drops to nil when controlling for these factors.

NICHD pushes for consensus

The National Institute of Child Health and Human Development has recognized that because there are divisions about the topic of emotional intelligence, the mental health community needs to agree on some guidelines to describe good mental health and positive mental living conditions. In their section, "Positive Psychology and the Concept of Health", they explain. "Currently there are six competing models of positive health, which are based on concepts such as being above normal, character strengths and core virtues, developmental maturity, social-emotional intelligence, subjective well-being, and resilience. But these concepts define health in philosophical rather than empirical terms. Dr. [Lawrence] Becker suggested the need for a consensus on the concept of positive psychological health...".

Interactions with other phenomena

Bullying

Bullying is abusive social interaction between peers which can include aggression, harassment, and violence. Bullying is typically repetitive and enacted by those who are in a position of power over the victim. A growing body of research illustrates a significant relationship between bullying and emotional intelligence. They also have shown that emotional intelligence is a key factor in the analysis of cases of cybervictimization.

by demonstrating a relevant impact on health and social adaptation. Emotional intelligence (EI) is a set of abilities related to the understanding, use and management of emotion as it relates to one's self and others. Mayer et al., (2008) defines the dimensions of overall EI as: "accurately perceiving emotion, using emotions to facilitate thought, understanding emotion, and managing emotion". The concept combines emotional and intellectual processes. Lower emotional intelligence appears to be related to involvement in bullying, as the bully and/or the victim of bullying. EI seems to play an important role in both bullying behavior and victimization in bullying; given that EI is illustrated to be malleable, EI education could greatly improve bullying prevention and intervention initiatives.

Job performance

Research of EI and job performance shows mixed results: a positive relation has been found in some of the studies, while in others there was no relation or an inconsistent one. This led researchers Cote and Miners (2006) to offer a compensatory model between EI and IQ, that posits that the association between EI and job performance becomes more positive as cognitive intelligence decreases, an idea first proposed in the context of academic performance (Petrides, Frederickson, & Furnham, 2004). The results of the former study supported the compensatory model: employees with low IQ get higher task performance and organizational citizenship behavior directed at the organization, the higher their EI. It has also been observed that there is no significant link between emotional intelligence and work attitude behavior.

A more recent study suggests that EI is not necessarily a universally positive trait. They found a negative correlation between EI and managerial work demands; while under low levels of managerial work demands, they found a negative relationship between EI and teamwork effectiveness. An explanation for this may suggest gender differences in EI, as women tend to score higher levels than men. This furthers the idea that job context plays a role in the relationships between EI, teamwork effectiveness, and job performance. Another find was discussed in a study that assessed a possible link between EI and entrepreneurial behaviors and success.

Although studies between emotional intelligence (EI) and job performance has shown mixed results of high and low correlations, EI is undeniably better predictor than most of the hiring methods commonly used in companies, such as letter of references, cover letter, among others. By 2008, 147 companies and consulting firms in U.S had developed programmes that involved EI for training and hiring employees. Van Rooy and Viswesvaran (2004) showed that EI correlated significantly with different domains in performance, ranging from .24 for job performance to .10 for academic performance. These findings may contribute organisations in different ways. For instance, employees high on EI would be more aware of their own emotions and from others, which in turn, could lead companies to better profits and less unnecessary expenses. This is especially important for expatriate managers, who have to deal with mixed emotions and feelings, while adapting to a new working culture. Moreover, employees high in EI show more confidence in their roles, which allow them to face demanding tasks positively.

According to a popular science book by the journalist Daniel Goleman, emotional intelligence accounts for more career success than IQ. Similarly, other studies argued that employees high on EI perform substantially better than employees low in EI. This measured by self-reports and different work performance indicators, such as wages, promotions and salary increase. According to Lopes and his colleagues (2006), EI contributes to develop strong and positive relationships with co-workers and perform efficiently in work teams. This benefits performance of workers by providing emotional support and instrumental resources needed to succeed in their roles. Also, emotional intelligent employees have better resources to cope with stressing situations and demanding tasks, which enable them to outperform in those situations. For instance, Law et al. (2004) found that EI was the best predictor of job performance beyond general cognitive ability among IT scientist in computer company in China. Similarly, Sy, Tram, and O’Hara (2006) found that EI was associated positively with job performance in employees from a food service company.

In the job performance – emotional intelligence correlation is important to consider the effects of managing up, which refers to the good and positive relationship between the employee and his/her supervisor. Previous research found that quality of this relationship could interfere in the results of the subjective rating of job performance evaluation. Emotional intelligent employees devote more of their working time on managing their relationship with supervisors. Hence, the likelihood of obtaining better results on performance evaluation is greater for employees high in EI than for employees with low EI. Based on theoretical and methodological approaches, EI measures are categorized in three main streams: (1) stream 1: ability-based measures (e.g. MSCEIT), (2) stream 2: self-reports of abilities measures (e.g. SREIT, SUEIT and WLEIS) and (3) stream 3: mixed-models (e.g. AES, ECI, EI questionnaire, EIS, EQ-I and GENOS), which include measures of EI and traditional social skills. O’Boyle Jr. and his colleagues (2011) found that the three EI streams together had a positive correlation of 0.28 with job performance. Similarly, each of EI streams independently obtained a positive correlation of 0.24, 0.30 and 0.28, respectively. Stream 2 and 3 showed an incremental validity for predicting job performance over and above personality and general cognitive ability. Both, stream 2 and 3 were the second most important predictor of job performance below general cognitive ability. Stream 2 explained 13.6% of the total variance; whereas stream 3, explained 13.2%. In order to examine the reliability of these findings, a publication bias analysis was developed. Results indicated that studies on EI-job performance correlation prior to 2010 do not present substantial evidences to suggest the presence of publication bias.

Despite the validity of previous findings, some researchers still question whether EI – job performance correlation makes a real impact on business strategies. They argue that popularity of emotional intelligence’s studies is due to media advertising, rather than objective scientific findings. Also, it is mentioned that relationship between job performance and EI is not as strong as suggested. This relationship requires the presence of other constructs to rise important outcomes. For instance, previous studies found that EI is positively associated with teamwork effectiveness under job contexts of high managerial work demands, which improves job performance. This is due to activation of strong emotions during performance on this job context. In this scenario, emotional intelligent individuals show a better set of resources to succeed on their roles. However, individuals with high EI show a similar level of performance than non-emotional intelligent employees under different job contexts. Moreover, Joseph and Newman (2010) suggested that emotional perception and emotional regulation components of EI highly contribute to job performance under job contexts of high emotional demands. Moon and Hur (2011) found that emotional exhaustion (“burn-out”) significantly influences the job performance – EI relationship. Emotional exhaustion showed a negative association with two components of EI (optimism and social skills). This association impacted negatively to job performance, as well. Hence, job performance – EI relationship is stronger under contexts of high emotional exhaustion or burn-out; in other words, employees with high levels of optimism and social skills possess better resources to outperform when facing high emotional exhaustion contexts.

Health

A 2007 meta-analysis of 44 effect sizes by Schutte found that emotional intelligence was associated with better mental and physical health. Particularly, trait EI had the stronger association with mental and physical health. This was replicated again in 2010 by researcher Alexandra Martin who found trait EI as a strong predictor for health after conducting a meta-analysis based on 105 effect sizes and 19,815 participants. This meta-analysis also indicated that this line of research reached enough sufficiency and stability in concluding EI as a positive predictor for health.

Self-esteem and drug dependence

A 2012 study cross examined emotional intelligence, self-esteem and marijuana dependence. Out of a sample of 200, 100 of whom were dependent on cannabis and the other 100 emotionally healthy, the dependent group scored exceptionally low on EI when compared to the control group. They also found that the dependent group also scored low on self-esteem when compared to the control.
Another study in 2010 examined whether or not low levels of EI had a relationship with the degree of drug and alcohol addiction. In the assessment of 103 residents in a drug rehabilitation center, they examined their EI along with other psychosocial factors in a one-month interval of treatment. They found that participants' EI scores improved as their levels of addiction lessened as part of their treatment.

Utilization

It has been noted that having EI as a skill can increase one's own well being. In other words, individuals who are conscious of the emotions of themselves and others have the privilege of enhancing relationships. It also allows people to see the multiple perspectives of a given situation, and acknowledge others' feelings about the event.

Intellectual property

From Wikipedia, the free encyclopedia

Intellectual property (IP) is a category of property that includes intangible creations of the human intellect, and primarily encompasses copyrights, patents, and trademarks. It also includes other types of rights, such as trade secrets, publicity rights, moral rights, and rights against unfair competition. Artistic works like music and literature, as well as some discoveries, inventions, words, phrases, symbols, and designs, can all be protected as intellectual property. It was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world.

The main purpose of intellectual property law is to encourage the creation of a large variety of intellectual goods. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create – usually for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information and intellectual goods they create. These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.

The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is "indivisible" – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.

History

The Statute of Anne came into force in 1710

The Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively, firmly establishing the concept of intellectual property.
The first known use of the term intellectual property dates to 1769, when a piece published in the Monthly Review used the phrase. The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays.

The German equivalent was used with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation. When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property.

The organization subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to legal scholar Mark Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention), and it did not enter popular usage there until passage of the Bayh-Dole Act in 1980.

"The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558–1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal right obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."

The term can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's own...as the wheat he cultivates, or the flocks he rears." The statement that "discoveries are..property" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years." In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.

Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope. This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.

The concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century. In 500 BCE, the government of the Greek state of Sybaris offered one year's patent "to all who should discover any new refinement in luxury".

According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift". Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO’s activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles. However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.

Similarly, it is based on these background that the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement requires members of the WTO to set minimum standards of legal protection, but its objective to have a “one-fits-all” protection law on Intellectual Property has been viewed with controversies regarding differences in the development level of countries. Despite the controversy, the agreement has extensively incorporated intellectual property rights into the global trading system for the first time in 1995, and has prevailed as the most comprehensive agreement reached by the world.

Intellectual property rights

Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications, and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting them) and database rights.

Patents

A patent is a form of right granted by the government to an inventor, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfill three main requirements: it has to be new, not obvious and there needs to be an industrial applicability. To enrich the body of knowledge and stimulate innovation, it is an obligation for patent owners to disclose valuable information about their inventions to the public.

Copyright

A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works". Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.

Industrial design rights

An industrial design right (sometimes called "design right" or design patent) protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.

Plant varieties

Plant breeders' rights or plant variety rights are the rights to commercially use a new variety of a plant. The variety must amongst others be novel and distinct and for registration the evaluation of propagating material of the variety is considered.

Trademarks

A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.

Trade dress

Trade dress is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.

Trade secrets

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; each business must take measures to guard its own trade secrets (e.g., Formula of its soft drinks is a trade secret for Coca-Cola.)

Object of intellectual property law

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers. To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation. The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.

By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. The thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions". This absolute protection or full value view treats intellectual property as another type of "real" property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the America Invents Act, stress international harmonization. Recently there has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility. The issue still remains open in legal scholarship.

Financial incentive

These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs. In the United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads; "[The Congress shall have power] 'To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.'" ”Some commentators, such as David Levine and Michele Boldrin, dispute this justification.

In 2013 the United States Patent & Trademark Office approximated that the worth of intellectual property to the U.S. economy is more than US $5 trillion and creates employment for an estimated 18 million American people. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union. In the UK, IP has become a recognised asset class for use in pension-led funding and other types of business finance. However, in 2013, the UK Intellectual Property Office stated: "There are millions of intangible business assets whose value is either not being leveraged at all, or only being leveraged inadvertently".

Economic growth

The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:

One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.

The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".

Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets. "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".

A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."

Morality

According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author". Although the relationship between intellectual property and human rights is a complex one, there are moral arguments for intellectual property.

The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work.

Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as:

1. Natural Rights/Justice Argument: this argument is based on Locke's idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind, it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas. Locke's argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property ensures this right when it comes to production.
   
2. Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been attributed to the development of the patent system. By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximize social utility. The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works". Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility.
   
3. "Personality" Argument: this argument is based on a quote from Hegel: "Every man has the right to turn his will upon a thing or make the thing an object of his will, that is to say, to set aside the mere thing and recreate it as his own". European intellectual property law is shaped by this notion that ideas are an "extension of oneself and of one's personality". Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality.

Lysander Spooner (1855) argues "that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases".

Writer Ayn Rand argued in her book Capitalism: The Unknown Ideal that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.

Infringement, misappropriation, and enforcement

Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.

As of 2011 trade in counterfeit copyrighted and trademarked works was a $600 billion industry worldwide and accounted for 5–7% of global trade.

Patent infringement

Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection is defined in the claims of the granted patent. There is safe harbor in many jurisdictions to use a patented invention for research. This safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug. In general, patent infringement cases are handled under civil law (e.g., in the United States) but several jurisdictions incorporate infringement in criminal law also (for example, Argentina, China, France, Japan, Russia, South Korea).

Copyright infringement

Copyright infringement is reproducing, distributing, displaying or performing a work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator. It is often called "piracy". While copyright is created the instant a work is fixed, generally the copyright holder can only get money damages if the owner registers the copyright. Enforcement of copyright is generally the responsibility of the copyright holder. The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the EU, and which has not entered into force, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligated the parties to active police for infringement. There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement

Trademark infringement occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services of the other party. In many countries, a trademark receives protection without registration, but registering a trademark provides legal advantages for enforcement. Infringement can be addressed by civil litigation and, in several jurisdictions, under criminal law.

Trade secret misappropriation

Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available. In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. The United States also has federal law in the form of the Economic Espionage Act of 1996 (18 U.S.C. §§ 1831–1839), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, 18 U.S.C. § 1831(a), criminalizes the theft of trade secrets to benefit foreign powers. The second, 18 U.S.C. § 1832, criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) In Commonwealth common law jurisdictions, confidentiality and trade secrets are regarded as an equitable right rather than a property right but penalties for theft are roughly the same as in the United States.

Criticisms

Demonstration in Sweden in support of file sharing, 2006.

"Copying is not theft!" badge with a character resembling Mickey Mouse in reference to the in popular culture rationale behind the Sonny Bono Copyright Term Extension Act of 1998

The term "intellectual property"

Criticism of the term intellectual property ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like property and rights in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.

Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion". He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights". Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. He argues that "to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of 'intellectual property'."

Similarly, economists Boldrin and Levine prefer to use the term "intellectual monopoly" as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights. They further argued that “stronger patents do little or nothing to encourage innovation”, mainly explained by its tendency to create market monopolies, thereby restricting further innovations and technology transfer.

On the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers. Still referring to copyright, he cites legal literature such as the United States Constitution and case law to demonstrate that the law is meant to be an optional and experimental bargain to temporarily trade property rights and free speech for public, not private, benefits in the form of increased artistic production and knowledge. He mentions that "if copyright were a natural right nothing could justify terminating this right after a certain period of time".

Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, has criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original). Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella has objected to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.

Entrepreneur and politician Rickard Falkvinge and hacker Alexandre Oliva have independently compared George Orwell's fictional dialect Newspeak to the terminology used by intellectual property supporters as a linguistic weapon to shape public opinion regarding copyright debate and DRM.

Alternative terms

In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.

Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman. The backronyms intellectual protectionism and intellectual poverty, whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.

The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte Andersen and Thomas Alured Faunce.

Objections to overbroad intellectual property laws

The free culture movement champions the production of content that bears little or no restrictions.

Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health (in the case of pharmaceutical patents), preventing progress, and benefiting concentrated interests to the detriment of the masses, and argue that the public interest is harmed by ever-expansive monopolies in the form of copyright extensions, software patents, and business method patents. More recently scientists and engineers are expressing concern that patent thickets are undermining technological development even in high-tech fields like nanotechnology.

Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:

Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.

In support of that argument, Jörg Baten, Nicola Bianchi and Petra Moser find historical evidence that especially compulsory licensing – which allows governments to license patents without the consent of patent-owners – encouraged invention in Germany in the early 20th century by increasing the threat of competition in fields with low pre-existing levels of competition.

Peter Drahos notes, "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."


The World Intellectual Property Organization (WIPO) recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights. In 2001 the UN Committee on Economic, Social and Cultural Rights issued a document called "Human rights and intellectual property" that argued that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits. In 2004 the General Assembly of WIPO adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself".

Further along these lines, The ethical problems brought up by IP rights are most pertinent when it is socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug. "An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations".


Libertarians have differing views on intellectual property. Stephan Kinsella, an anarcho-capitalist on the right-wing of libertarianism, argues against intellectual property because allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Kinsella uses the following scenario to argue this point:

[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.

Thomas Jefferson once said in a letter to Isaac McPherson on August 13, 1813:

"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. 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 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.

Another aspect of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.

Expansion in nature and scope of intellectual property laws

Expansion of U.S. copyright law (Assuming authors create their works by age 35 and live for seventy years)

Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope.

In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms, (and in the United States, certain living organisms have been patentable for over a century).

The increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe. With no need for registration or copyright notices, this is thought to have led to an increase in orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.

Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.

RIAA representative Hilary Rosen testifies before the Senate Judiciary Committee on the future of digital music (July 11, 2000)

The growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, have represented a challenge for copyright policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against copyright infringement, which the industry calls "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. Laws such as the Digital Millennium Copyright Act have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright, or uses allowed by the copyright holder. Some copyleft licenses, like GNU GPL 3, are designed to counter that. Laws may permit circumvention under specific conditions like when it is necessary to achieve interoperability with the circumventor's program, or for accessibility reasons; however, distribution of circumvention tools or instructions may be illegal.

In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in 1994, which formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark.

Use in corporate tax avoidance

Make no mistake: the headline [tax] rate is not what triggers tax evasion and aggressive tax planning. That comes from schemes that facilitate profit shifting.

Pierre Moscovici
European Commissioner for Tax
Financial Times, 11 March 2018

"It is hard to imagine any business, under the current [Irish] IP regime, which could not generate substantial intangible assets under Irish GAAP that would be eligible for relief under [the Irish] capital allowances [for intangible assets scheme]." "This puts the attractive 2.5% Irish IP-tax rate within reach of almost any global business that relocates to Ireland."

KPMG, "Intellectual Property Tax", 4 December 2017

Intellectual property has become a core tool in corporate tax planning and tax avoidance. IP is a key component of the leading multinational tax avoidance base erosion and profit shifting (BEPS) tools, which the OECD estimates costs $100-240 billion in lost annual tax revenues, and includes:

1. Using IP royalty payment schemes to profit shift income from higher-tax locations to lower-tax locations (such as the Facebook 2012 double Irish and the Microsoft 2015 single malt BEPS tax schemes);
2. Using IP royalty payment schemes to overcome EU withholding tax protections (such as the circa 2007 Google dutch sandwich BEPS tax scheme);
3. Using advanced IP GAAP accounting to create intangible assets which can be expensed against taxation in certain IP-beneficial regimes (such as the Apple 2015 Irish capital allowances for intangible assets BEPS tax scheme);
4. Using advanced IP GAAP accounting to maximize the effect of corporate relocations to low-tax regimes (used by Accenture in their 2009 U.S. corporate tax inversion to Ireland).

In 2017-2018, both the U.S. and the EU Commission simultaneously decided to depart from the OECD BEPS Project timetable, which was set up in 2013 to combat IP BEPS tax tools like the above, and launch their own anti-IP BEPS tax regimes:

• U.S. Tax Cuts and Jobs Act of 2017, which has several anti-IP BEPS abuse tax regimes, including GILTI tax and the BEAT tax regimes.
• EU Commission 2018 Digital Services Tax, which is less advanced than the U.S. TCJA, but does seek to override IP BEPS tools via a quasi-VAT.

The departure of the U.S. and EU Commission from the OECD BEPS Project process, is attributed to frustrations with the rise in IP as a key BEPS tax tool, creating intangible assets, which are then turned into royalty payment BEPS schemes (double Irish), and/or capital allowance BEPS schemes (capital allowances for intangibles). In contrast, the OECD has spent years developing and advocating intellectual property as a legal and a GAAP accounting concept.

The EU Commission's €13 billion fine of Apple's pre 2015 double Irish IP BEPS tax scheme, is the largest corporate tax fine in history.