in support of
file sharing, 2006 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. Critics argue that 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). A related argument is 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 is not applicable to ideas. Entrepreneur and politician
Rick 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
digital rights management (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 also found supporters, 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 Faunce.
Objections to overly broad intellectual property laws champions the production of
content that bears little or no restrictions.|alt=Logo of the Definition of Free Cultural Works. 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 ever-expansive monopolies in the form of
copyright extensions,
software patents, and
business method patents harm the public interest. 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 the many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedom within a society." The
World Intellectual Property Organization (WIPO) recognizes that conflicts may exist between respecting and implementing 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". Ethical problems are most pertinent when 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".
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 13 August 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
Royal Society of Arts 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. Critics like Philip Bennet argue that this does not provide adequate protection against
cultural appropriation of indigenous knowledge, for which a
collective IP regime is needed. Intellectual property law has been criticized as not recognizing new forms of art such as the
remix culture, whose participants often commit what technically constitutes violations of such laws, creation works such as
anime music videos and others, or are otherwise subject to unnecessary burdens and limitations which prevent them from fully expressing themselves.
Objections to the expansion in nature and scope of intellectual property laws Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope. 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 (MPA). 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. 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 DRM 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 DRM 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 the
GNU GPL 3, are designed to counter this. Laws may permit circumvention under specific conditions, such as 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 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 $100240 billion in lost annual tax revenues. and launch their own anti-IP BEPS tax regimes: • U.S.
Tax Cuts and Jobs Act, 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.
Gender gap in intellectual property Women have historically been underrepresented in the creation and ownership of intellectual property covered by intellectual property rights. According to the World Intellectual Property Organization, women composed only 16.5% of patent holders even as recently as 2020. This disparity is the result of several factors including systemic bias, sexism and discrimination within the intellectual property space, underrepresentation within
STEM, and barriers to access of necessary finance and knowledge in order to obtain intellectual property rights, among other reasons.
Global IP ratchet and developing countries The global increase in intellectual property protection is sometimes referred to as a global IP ratchet in which a spiral of bilateral and multilateral agreements result in growing obligations where new agreements never recede from existing standards and very often further heighten them. The global IP ratchet has limited the freedom of
developing countries to set their own IP standards. Developing countries' lack of bargaining power relative to the developed countries driving the global IP ratchet means that developing countries' ability to regulate intellectual property to advance domestic interests is eroding. ==See also==