Intellectual property

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Intellectual property is an umbrella term used by publishers of non-free works to refer to copyrights, patents, trademarks, and trade secrets based on these vague similarities:

  • they all arise from intellectual effort, and
  • they are all forms of "property", or state-sponsored rights to exclude other people from doing certain things that are transferable and licensable either exclusively or nonexclusively.

Opponents of the practices of some of these publishers claim that this term invites confusion.

Contents

Why it confuses

Richard M. Stallman, founder of the project to develop the GNU operating system, has called the use of the term "intellectual property" by these publishers since 1990 "a seductive mirage".[1] As I understand it, his points are as follows:

  • "Intellectual property" conflates the respective purposes of copyright, patent, trademark, and trade secret law. Copyrights and patents exist to promote investment in works and inventions, unlike trademarks whose purpose is closer to consumer protection.
  • "Intellectual property" also conflates their respective scope and limitations. For example, only copyright and trade secret care about provenance (or "bit color", as one popular essay calls it[2]): copyright infringement requires access to the original work, and trade secret misappropriation under the Uniform Trade Secrets Act can arise at "acquisition" of a leak. Patents and trademarks, by contrast, can be infringed through independent reinvention. Unlike a patent, a copyright has fair use and a wide variety of unregulated uses, and the longer term is thought to compensate for this and for the provenance requirement. But a proponent of the the term might emphasize those analogies that do exist, such as comparing prior art in patents to scènes à faire in copyrights or comparing a laches defense to copyright or patent infringement to a genericide defense to trademark infringement.
  • "Intellectual property" further conflates the respective purposes and scope of these legal traditions with those of laws governing the use of real estate or immovable property. IP proponents apply imperfect parallels here as well; for example, fair use and other limitations of copyright correspond roughly to easements.
  • Abbreviation as "IP" implies an expectation that the general public has accepted these conflations to the point that the reader ought to take them for granted.

Nevertheless, privileges under these monopolies are often licensed together as a group, and there's no agreement on what to call this bundle of monopolies other than "intellectual property".[3]

Setting

One trend in video game journalism as of 2010 is to refer to a video game's setting, along with elements associated with the setting such as characters and events, as the game's "IP". But this overemphasizes the fact that it is property, or something to which exclusive rights are attached, not commons, or something for all to use in moderation. Furthermore, the abbreviation implies that people should take for granted that the best way to treat a setting is as property, not as commons. Conflating a setting with the copyrights attached to that setting causes problems for cases where the copyrights aren't in the familiar pattern of exclusive control by an established company. For example, if someone were to make a film or video game adaptation of The Adventures of Pinocchio, an episodic novel by Carlo Collodi that has entered the public domain due to age, would this be an "original IP" because no license was involved, "3rd party IP" because it was created by someone else, or not an "IP" at all because it is held in common? Likewise, the setting of a comic strip published under the Creative Commons Attribution or Attribution-ShareAlike license is held in common; what kind of "IP" is it?

How to write more clearly

First decide what you meant by "intellectual property".

If you meant copyright
Say "copyright". You can abbreviate it as "copr." if you must.
If you meant the milieu of a work of fiction
You can call the environment in which a novel, graphic novel, film, or video game takes place its "setting".
If you meant a bundle of disparate rights that are licensed as a unit
Consider how they differ before writing. You might be able to engage the reader by starting with something like "Unlike trademarks, patents expire" and then explaining what that implies in a situation.
If you are drawing parallels among these areas of law
You have a couple choices, depending on the tone of your article. One is the term "forced artificial scarcity", which emphasizes how immaterial these rights are when abbreviated as "FARTS".[4] Others derive from mythical creatures, such as "imposed monopoly privilege" or "IMP" and "government-originated legally enforced monopoly" or "GOLEM".[1]
If you still feel like using the abbreviation "IP"
You can help destroy "IP". Just as the stealth joke of expanding DRM as "digital restrictions management"[5] has caught on among advocates of free software and culture, you could refer to IP but consistently expand it as "intellectual protectionism", "intellectual prohibition",[6] "intellectual privilege", or "imaginary property".[3] Or you could draw attention to the "imperfect parallels" that IP maximalists use to support their case.

References

  1. 1.0 1.1 Richard M. Stallman. "Did You Say 'Intellectual Property'? It's a Seductive Mirage". The GNU Project, 2004. Updated 2010-09-05.
  2. Matthew Skala. "What Colour are your bits?". Ansuz, 2004-06-10. Accessed 2013-12-28.
  3. 3.0 3.1 Mike Masnick. "If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?". Techdirt, 2008-03-06. Accessed 2014-02-19.
  4. David Wong. "5 Reasons The Future Will Be Ruled By B.S." Cracked, 2010-10-18. Accessed 2014-06-29.
  5. Richard M. Stallman. "Words to Avoid (or Use with Care) Because They Are Loaded or Confusing". Free Software Foundation, 2012. Accessed 2014-07-23.
  6. Stephan Kinsella. Intellectual Poverty. Ludwig von Mises Institute, 2011-01-06. Accessed 2014-08-29.

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