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.

Idea

From Wikipedia, the free encyclopedia

Plato, one of the first philosophers to discuss ideas in detail. Aristotle claims that many of Plato's views were Pythagorean in origin.

In philosophy, ideas are usually taken as mental representational images of some object. Ideas can also be abstract concepts that do not present as mental images. Many philosophers have considered ideas to be a fundamental ontological category of being. The capacity to create and understand the meaning of ideas is considered to be an essential and defining feature of human beings. In a popular sense, an idea arises in a reflexive, spontaneous manner, even without thinking or serious reflection, for example, when we talk about the idea of a person or a place. A new or original idea can often lead to innovation.

Etymology

The word idea comes from Greek ἰδέα idea "form, pattern," from the root of ἰδεῖν idein, "to see." 

Innate and adventitious ideas

One view on the nature of ideas is that there exist some ideas (called innate ideas) which are so general and abstract that they could not have arisen as a representation of an object of our perception but rather were in some sense always present. These are distinguished from adventitious ideas which are images or concepts which are accompanied by the judgment that they are caused or occasioned by an external object.

Another view holds that we only discover ideas in the same way that we discover the real world, from personal experiences. The view that humans acquire all or almost all their behavioral traits from nurture (life experiences) is known as tabula rasa ("blank slate"). Most of the confusions in the way ideas arise is at least in part due to the use of the term "idea" to cover both the representation perceptics and the object of conceptual thought. This can be always illustrated in terms of the scientific doctrines of innate ideas, "concrete ideas versus abstract ideas", as well as "simple ideas versus complex ideas".

Philosophy

Plato

Plato in Ancient Greece was one of the earliest philosophers to provide a detailed discussion of ideas and of the thinking process (it must be noted that in Plato's Greek the word idea carries a rather different sense from our modern English term). Plato argued in dialogues such as the Phaedo, Symposium, Republic, and Timaeus that there is a realm of ideas or forms (eidei), which exist independently of anyone who may have thoughts on these ideas, and it is the ideas which distinguish mere opinion from knowledge, for unlike material things which are transient and liable to contrary properties, ideas are unchanging and nothing but just what they are. Consequently, Plato seems to assert forcefully that material things can only be the objects of opinion; real knowledge can only be had of unchanging ideas. Furthermore, ideas for Plato appear to serve as universals; consider the following passage from the Republic:

"We both assert that there are," I said, "and distinguish in speech, many fair things, many good things, and so on for each kind of thing."

"Yes, so we do."

"And we also assert that there is a fair itself, a good itself, and so on for all things that we set down as many. Now, again, we refer to them as one idea of each as though the idea were one; and we address it as that which really is."

"That's so."

"And, moreover, we say that the former are seen, but not intellected, while the ideas are intellected but not seen."

— Plato, Bk. VI 507b-c

René Descartes

Descartes often wrote of the meaning of idea as an image or representation, often but not necessarily "in the mind", which was well known in the vernacular. Despite that Descartes is usually credited with the invention of the non-Platonic use of the term, he at first followed this vernacular use. In his Meditations on First Philosophy he says, "Some of my thoughts are like images of things, and it is to these alone that the name 'idea' properly belongs." He sometimes maintained that ideas were innate  and uses of the term idea diverge from the original primary scholastic use. He provides multiple non-equivalent definitions of the term, uses it to refer to as many as six distinct kinds of entities, and divides ideas inconsistently into various genetic categories. For him knowledge took the form of ideas and philosophical investigation is the deep consideration of these entities.

John Locke

In striking contrast to Plato's use of idea  is that of John Locke. In his Introduction to An Essay Concerning Human Understanding, Locke defines idea as "that term which, I think, serves best to stand for whatsoever is the object of the understanding when a man thinks, I have used it to express whatever is meant by phantasm, notion, species, or whatever it is which the mind can be employed about in thinking; and I could not avoid frequently using it."  He said he regarded the book necessary to examine our own abilities and see what objects our understandings were, or were not, fitted to deal with. In his philosophy other outstanding figures followed in his footsteps — Hume and Kant in the 18th century, Arthur Schopenhauer in the 19th century, and Bertrand Russell, Ludwig Wittgenstein, and Karl Popper in the 20th century. Locke always believed in good sense — not pushing things to extremes and on taking fully into account the plain facts of the matter. He considered his common-sense ideas "good-tempered, moderate, and down-to-earth."

As John Locke studied humans in his work “An Essay Concerning Human Understanding” he continually referenced Descartes for ideas as he asked this fundamental question: “When we are concerned with something about which we have no certain knowledge, what rules or standards should guide how confident we allow ourselves to be that our opinions are right?”  A simpler way of putting it is how do humans know ideas, and what are the different types of ideas. An idea to Locke “can simply mean some sort of brute experience.”  He shows that there are “No innate principles in the mind.”. Thus, he concludes that “our ideas are all experiential in nature.”  An experience can either be a sensation or a reflection: “consider whether there are any innate ideas in the mind before any are brought in by the impression from sensation or reflection.”  Therefore, an idea was an experience in which the human mind apprehended something.

In a Lockean view, there are really two types of ideas: complex and simple. Simple ideas are the building blocks for much more complex ideas, and “While the mind is wholly passive in the reception of simple ideas, it is very active in the building of complex ideas…”  Complex ideas, therefore, can either be modes, substances, or relations. Modes are when ideas are combined in order to convey new information. For instance, David Banach  gives the example of beauty as a mode. He says that it is the combination of color and form. Substances, however, is different. Substances are certain objects, that can either be dogs, cats, or tables. And relations represent the relationship between two or more ideas. In this way, Locke did, in fact, answer his own questions about ideas and humans.

David Hume

Hume differs from Locke by limiting idea to the more or less vague mental reconstructions of perceptions, the perceptual process being described as an "impression." Hume shared with Locke the basic empiricist premise that it is only from life experiences (whether their own or others') that humans' knowledge of the existence of anything outside of themselves can be ultimately derived, that they shall carry on doing what they are prompted to do by their emotional drives of varying kinds. In choosing the means to those ends, they shall follow their accustomed associations of ideas. Hume has contended and defended the notion that "reason alone is merely the 'slave of the passions'." 

Immanuel Kant

"Modern Book Printing" from the Walk of Ideas

Immanuel Kant defines an idea as opposed to a concept. "Regulative ideas" are ideals that one must tend towards, but by definition may not be completely realized. Liberty, according to Kant, is an idea. The autonomy of the rational and universal subject is opposed to the determinism of the empirical subject. Kant felt that it is precisely in knowing its limits that philosophy exists. The business of philosophy he thought was not to give rules, but to analyze the private judgements of good common sense.

Rudolf Steiner

Whereas Kant declares limits to knowledge ("we can never know the thing in itself"), in his epistemological work, Rudolf Steiner sees ideas as "objects of experience" which the mind apprehends, much as the eye apprehends light. In Goethean Science (1883), he declares, "Thinking ... is no more and no less an organ of perception than the eye or ear. Just as the eye perceives colors and the ear sounds, so thinking perceives ideas." He holds this to be the premise upon which Goethe made his natural-scientific observations.

Wilhelm Wundt

Wundt widens the term from Kant's usage to include conscious representation of some object or process of the external world. In so doing, he includes not only ideas of memory and imagination, but also perceptual processes, whereas other psychologists confine the term to the first two groups. One of Wundt's main concerns was to investigate conscious processes in their own context by experiment and introspection. He regarded both of these as exact methods, interrelated in that experimentation created optimal conditions for introspection. Where the experimental method failed, he turned to other objectively valuable aids, specifically to those products of cultural communal life which lead one to infer particular mental motives. Outstanding among these are speech, myth, and social custom. Wundt designed the basic mental activity apperception — a unifying function which should be understood as an activity of the will. Many aspects of his empirical physiological psychology are used today. One is his principles of mutually enhanced contrasts and of assimilation and dissimilation (i.e. in color and form perception and his advocacy of objective methods of expression and of recording results, especially in language. Another is the principle of heterogony of ends — that multiply motivated acts lead to unintended side effects which in turn become motives for new actions.

Charles Sanders Peirce

C. S. Peirce published the first full statement of pragmatism in his important works "How to Make Our Ideas Clear" (1878) and "The Fixation of Belief" (1877). In "How to Make Our Ideas Clear" he proposed that a clear idea (in his study he uses concept and idea as synonymic) is defined as one, when it is apprehended such as it will be recognized wherever it is met, and no other will be mistaken for it. If it fails of this clearness, it is said to be obscure. He argued that to understand an idea clearly we should ask ourselves what difference its application would make to our evaluation of a proposed solution to the problem at hand. Pragmatism (a term he appropriated for use in this context), he defended, was a method for ascertaining the meaning of terms (as a theory of meaning). The originality of his ideas is in their rejection of what was accepted as a view and understanding of knowledge by scientists for some 250 years, i.e. that, he pointed, knowledge was an impersonal fact. Peirce contended that we acquire knowledge as participants, not as spectators. He felt "the real", sooner or later, is information acquired through ideas and knowledge with the application of logical reasoning would finally result in. He also published many papers on logic in relation to ideas.

G. F. Stout and J. M. Baldwin

G. F. Stout and J. M. Baldwin, in the Dictionary of Philosophy and Psychology, define idea as "the reproduction with a more or less adequate image, of an object not actually present to the senses."  They point out that an idea and a perception are by various authorities contrasted in various ways. "Difference in degree of intensity", "comparative absence of bodily movement on the part of the subject", "comparative dependence on mental activity", are suggested by psychologists as characteristic of an idea as compared with a perception.

It should be observed that an idea, in the narrower and generally accepted sense of a mental reproduction, is frequently composite. That is, as in the example given above of the idea of a chair, a great many objects, differing materially in detail, all call a single idea. When a man, for example, has obtained an idea of chairs in general by comparison with which he can say "This is a chair, that is a stool", he has what is known as an "abstract idea" distinct from the reproduction in his mind of any particular chair (see abstraction). Furthermore, a complex idea may not have any corresponding physical object, though its particular constituent elements may severally be the reproductions of actual perceptions. Thus the idea of a centaur is a complex mental picture composed of the ideas of man and horse, that of a mermaid of a woman and a fish.

In anthropology and the social sciences

Diffusion studies explore the spread of ideas from culture to culture. Some anthropological theories hold that all cultures imitate ideas from one or a few original cultures, the Adam of the Bible, or several cultural circles that overlap. Evolutionary diffusion theory holds that cultures are influenced by one another but that similar ideas can be developed in isolation.

In the mid-20th century, social scientists began to study how and why ideas spread from one person or culture to another. Everett Rogers pioneered diffusion of innovations studies, using research to prove factors in adoption and profiles of adopters of ideas. In 1976, in his book The Selfish Gene, Richard Dawkins suggested applying biological evolutionary theories to the spread of ideas. He coined the term meme to describe an abstract unit of selection, equivalent to the gene in evolutionary biology.

Semantics

Samuel Johnson

James Boswell recorded Samuel Johnson's opinion about ideas. Johnson claimed that they are mental images or internal visual pictures. As such, they have no relation to words or the concepts which are designated by verbal names.

He was particularly indignant against the almost universal use of the word idea in the sense of notion or opinion when it is clear that idea can only signify something of which an image can be formed in the mind. We may have an idea or image of a mountain, a tree, a building; but we cannot surely have an idea or image of an argument or proposition. Yet we hear the sages of the law 'delivering their ideas upon the question under consideration;' and the first speakers in parliament 'entirely coinciding with the idea which has been ably stated by an honourable member;' — or 'reprobating an idea unconstitutional, and fraught with the most dangerous consequences to a great and free country.' Johnson called this 'modern cant.'

— Boswell's Life of Johnson, Tuesday, 23 September 1777

Relationship of ideas to modern legal time- and scope-limited monopolies

Relationship between ideas and patents

On susceptibility to exclusive property

It has been pretended by some, (and in England especially,) that inventors have a natural and exclusive right to their inventions, and not merely for their own lives, but inheritable to their heirs. But while it is a moot question whether the origin of any kind of property is derived from nature at all, it would be singular to admit a natural and even a hereditary right to inventors. It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance.

By a universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it. Stable ownership is the gift of social law and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed an exclusive and stable property.

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 my mine, receives light without darkening me.

Those ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density in any point, and like the air in which we breathe, move, and have our physical being, incapable of confinement or exclusive appropriation. Inventions then cannot, in nature, be a subject of property.
Society may give an exclusive right to the profits arising from them, as an encouragement to men to pursue ideas which may produce utility, but this may or may not be done, according to the will and convenience of the society, without claim or complaint from anybody. Accordingly, it is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society.

— Thomas Jefferson, letter to Isaac McPherson, 13 August 1813

To protect the cause of invention and innovation, the legal constructions of Copyrights and Patents were established. Patent law regulates various aspects related to the functional manifestation of inventions based on new ideas or incremental improvements to existing ones. Thus, patents have a direct relationship to ideas.

Relationship between ideas and copyrights

A picture of a lightbulb is often used to represent a person having a bright idea.

In some cases, authors can be granted limited legal monopolies on the manner in which certain works are expressed. This is known colloquially as copyright, although the term intellectual property is used mistakenly in place of copyright. Copyright law regulating the aforementioned monopolies generally does not cover the actual ideas. The law does not bestow the legal status of property upon ideas per se. Instead, laws purport to regulate events related to the usage, copying, production, sale and other forms of exploitation of the fundamental expression of a work, that may or may not carry ideas. Copyright law is fundamentally different from patent law in this respect: patents do grant monopolies on ideas.

A copyright is meant to regulate some aspects of the usage of expressions of a work, not an idea. Thus, copyrights have a negative relationship to ideas.

Work means a tangible medium of expression. It may be an original or derivative work of art, be it literary, dramatic, musical recitation, artistic, related to sound recording, etc. In (at least) countries adhering to the Berne Convention, copyright automatically starts covering the work upon the original creation and fixation thereof, without any extra steps. While creation usually involves an idea, the idea in itself does not suffice for the purposes of claiming copyright.

Relationship of ideas to confidentiality agreements

Confidentiality and nondisclosure agreements are legal instruments that assist corporations and individuals in keeping ideas from escaping to the general public. Generally, these instruments are covered by contract law.