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Let's avoid the term "Intellectual property"

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For meaningful discussion, the term intellectual property, IP, or IPR should be avoided.

On en.swpat.org, we discuss patent policy. None of this policy is intended to apply to copyright, or trademarks, or geographic designations, or another other of the many laws which get grouped under the term "IP". (See also: Terminology recommendations)

Contents

[edit] It's always too vague

The term groups together patents, copyright, trademarks, design schematics, database rights, plant varieties, geographic designations, and other laws. If we talk about all these different laws at the same time, it will be impossible to have a meaningful discussion.

Patent policy is a complicated enough area. Patents have a scope (what subject matter can be patented), a duration, and a field of application (they can be used to prevent someone from manufacturing and selling that idea, but what else can they prohibit? can they prevent publishing a book about the idea? a film where the idea is mentioned?). Making general comments about patents - such as that they should be made "stronger" - is already frustratingly vague, so lumping this topic in with almost unrelated topics certainly ensures that no substantial discussion is possible.

[edit] Examples of confusion

The following is the beginning of list of examples where press releases about "intellectual property" have lead journalists to write erroneous articles:

  • Oracle v. SAP (2010, USA) - news articles said this case was about patents,[1] while it was actually only about copyrights.
  • In a study by two expert economists (The Case Against Patents), they say that free software operates "absent intellectual property".[2] Free software does operate without patents, but almost all free software uses copyright, so they were clearly confused by their own term.

[edit] The "property" designation is dubious

From one angle, patents are completely unlike traditional "property". E.g. they disappear after 20 years, while the title to your house does not.

From another angle, the book Patent Failure questions the idea of patents as "property" in Chapter 3, titled "If You Can’t Tell the Boundaries, Then It Ain’t Property".[3] The book terms this "the notice problem" because the public is never sufficiently notified of where the "property" begins or ends. It's impossible for even the most careful person to have legal certainty for avoiding illegal trespassing.

This one problem can be avoided by instead using the term "Intellectual rights",[4] but there is still the problem that this term is too vague and carelessly mixes rights that have almost nothing in common and which should be thought about separately.

[edit] It sometimes excludes patents

In some countries, patents are part of "industrial property" rather than "intellectual property". (To confirm: someone said Sweden is one such country, but according to Wikipedia[1] "intellectual property" is copyright laws plus industrial property.)

[edit] When did this term spread?

Two questions are posed by Richard Stallman:

  1. When did various law schools and courses start using the term in names of classes?
  2. When did the governments start to have committees with this term in their names?

Stallman asks these questions about the USA, but swpat.org is interested in answers regarding any country.

[edit] Related pages on en.swpat.org

[edit] External links

[edit] References

  1. http://www.ibtimes.com/articles/78042/20101102/hps-new-ceo-to-testify-at-oracle-sap-trial.htm
  2. http://www.stallman.org/archives/2012-jul-oct.html#15_October_2012_%28Economic_case_for_abolishing_patents%29
  3. Patent Failure, Chapter 3: If You Can’t Tell the Boundaries, Then It Ain’t Property PDF
  4. http://www.dwheeler.com/essays/intellectual-rights-not-intellectual-property.html


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