CyberTech Rambler

October 10, 2005

Intellectual Property vs Intellectual Monopoly

Filed under: Uncategorized — ctrambler @ 1:21 pm

I am doing a course with WIPO Distance Learning (DL101 : General Course on Intellectual Property). I am about 1/8 through the course, and begin to form some opinion on the course. I will write a review when I complete the course, which should be sometime late November. Right now, inspired by the first module that introduce the notion of Intellectual Property ownership, I want to attempt to reconcilate my conflicting view on why certain so called IP, such as copyrights and trademarks, are fine and acceptable, but others, like Patents, are not acceptable.

Opponents of open source keep spreading FUD about open source proponent are against Intellectual Property, which open source proponents counterclaim by saying that the open source rely on Intellectual Property protection to protect their work, in particular, the copyright provision. Lately, open source proponent, like myself, have rally behind the movement against Software Patent. Some members of the general public probably think that we are hypocrits by embracing some form of IP protection that benefits us, namely Copyright, but decries other that do not or expensive to obtain, namely patent. Opponents of open source is starting to use this “inconsistency” to attack open source. Various members of the open source community had addressed this issues before.

My own struggle with Intellectual Property is that Intellectual Property Protection has gone overboard and is constraining humanity, rather than advance it. I believe that Intellectual Property, properly implemented, do help advance humanity, but at a price. The price we pay is short term ownership of a piece of “intellectual property” by individuals (including companies). However, in the long run, the society benefits because this short term ownership is conditional on the owner disclosure on how he did it. And if society can exploits the disclosure and retake ownership after the “short term” private ownership expires, the pain is worth it. The history of the Chinese People is one littered with a lot of lost “inventions”, all of which are well substantiated by various documents. These inventions are lost because there is no framework that reward and encourage the inventors to disclose how they did it. Thus, inventors rather take their inventions to the grave than to tell others how to make it. I can only imagine how much richer our society will be if these inventions are not lost.

The problem I have with IP laws are their implementation, in particular the constant redefinition of “short-term private ownership” which seems to be getting longer and longer. In my opinion, these extensions are often not justifiable, as they are contrary to my stated priciple above on what IP is meant to be. This is the easy part to explain. However, my view is not that simple, because I find that certain categories of IP rights, is more repungant than others. Although I have a certain ideas on why this is the case, I am often at a lost on how to explain this. That is, until I took the course.

The course explains that Intellectual Property is like a phsyical property, e.g. real estate, where it can be owned by excluding others from using the “property”. I have trouble with the physical property analogy, for the sake of this blog entry lets just leave it as it is. Rather, lets focus on the issue of “excluding others on using the property”. This is the root of the problem I have with certain categories of intellectual property.

If IP is like a house, I have no problem with it. This is because many people can own houses. They simply own different houses. These houses serve the same purpose: providng shelter. The houses can be very similar (think terrace houses), but not identitcal (must occupy different spaces). Since there can be many houses owned by many people, excluding the majority of people to use a particular house does not really bother any one, including me, as long as there is enough house to go around.

Now, imagine that you cannot own a house because someone else own all the houses in this world. Futhermore, this someone is not impartial, is out there to protect his own interest at the detriment of others if necessary, and his decision is final and binding with no rights to appeal. In effect, he has a monopoly on house ownership. If this is the case there will be a big uproar against this monopoly.

For intellectual properties that behave like “Properties”, where different people can own similar (but not identical) properties, I am fine with the notion of granting temporary exclusive rights. It serves the purpose of rewarding the creation of the property and there is no overbroad exclusivity. Copyrights, Trademarks and related rights falls into this category.

However, if Intellectual Property start to behave like “Monopoly”, i.e., only one person can own the property to for his exclusive use, then they should ideally be banned, or extremely heavily regulated, to ensure that they are consistent with public good. In the case of Patent what is granted is a form of “monopoly”, but unlike other form of monopoly (electricity, gas and telephone for example), they are NOT regulated at all. I think this is wrong and should be vehemently opposed.

Is it an accident that the words “Intellectual Property” rather than “Intellectual Monopoly” is prefered? I do not think so. The word “Monopoly” have a negative cognotation and immediately put one in the defence of not granting the right. If the rights is granted to somebody, that person is usually under constant watchful eye and heavily regulated. However, using the word “property” give the whole thing a different meaning. It implies that the rights should be, by default, granted, unless there is a compelling reasons not to, and that regulations is not really necessary. Psychologically and practically speaking, the use of the word “property” favour the rights owners.

Indeed, as I had mentioned, some IP do behave like property, and therefore the terms IP is apporpriate for them. However, IP that behaves like monopoly should be identified instead as Intellectual Monopoly. It is simply a matter of saying things as they are.

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3 Comments »

  1. Wow! I think that maybe you have a common misconception of what a “Patent” actually does, legally. The name of the word should give some clue – “patent” meaning a “clear path” in an more ancient language like Latin.

    When someone gets a Patent, they do not get some kind of a “deed of complete ownership”, as if they bought real estate. The only “right” a patent holder gets is to sue for a tort called “infringement” if someone takes the ideas published in the patent document and commercializes them for themselves. That only can last for at the very most 20 years after filing at the Patent Office – while a copyright or trademark can be renewed forever, basically.

    It seems to me you have some kind of not-stated assumptions behind what you are saying. “Infringement” is the analog to “trespass” for real estate. Why do you think that a little guy who works hard to discover an idea that results in a new method and means, and enables a novel kind of application, should NOT be minimally protected to develop it for his own commercial profit for a period of time. It others want to license it for royalties, just like book royalties, then they can commercialize it too.

    If you would work for years planting and cultivating, say, fruit trees, in your orchard — do you believe that any old person should just be able to come there freely, dig them out, and transplant them to their own land?

    Why in the world do you believe that once a person has a patent, then the process (or whatever) is kept a secret. In fact, the most important thing in a patent is called the “teachings”, in which the complete story has to be told so that another person knowledgable in the sale area could do the same thing.

    I find your blogged mind set on this matter really puzzling, especially about the “secrecy” aspects. I hope you might straighten me out about that

    Comment by Doc Badger — October 11, 2005 @ 7:27 am | Reply

  2. “When someone gets a Patent, they do not get some kind of a “deed of complete ownership”, as if they bought real estate. The only “right” a patent holder gets is to sue for a tort called “infringement” if someone takes the ideas published in the patent document and commercializes them for themselves. That only can last for at the very most 20 years after filing at the Patent Office – while a copyright or trademark can be renewed forever, basically.”

    In that 20 years, they have a monopoly. In my view, this is, in effect, “deed of complete ownership”, especially after the 20 years, the residual value for the disclosure is virtually zero.

    Copyrights cannot be extended. What happens is that the work evolved and each evolutions is protected by copyright on the day it is “fixed” or “published”. The original will fall into public domain after the said time, followed by the rest. I agree the term of copyrights is a too long but this is another issue. The point here is that you can create very similar work to the that copyright-ed.

    I encourage protection for the little guy (or indeed big guy). However, but these criterias must be satisfied: (1)At the end of the protection period, there must still be some tangible benefits for the society , i.e., not leaving the invention as only of historical interest, (2)that guy must not be able to use it to muscle in into other areas, and (3)overall, the society benefits from advancement in humanity. One example for (2) is that he insists he restricts your choice on buying associated product to inflate his profit unjustifiably.

    If you plant the fruit tree, you have the rights to prevent others from eating your fruits. They cannot dig them out and transplant them in their orchird coz the fruit tree is your “property”. They can plant their own fruit trees and you cannot do what is discussed above to them. In this context, fruit trees are property, coz there can be many fruit trees own by many people. However, your fruit tree adventure turns into a “monopoly” if you are able to say that others cannot plant their own fruit tree. That, in my opinion, is wrong.

    “Teaching” is good, but will be of extremely limitted value (and close to meaningless) if the student is not allowed to practice the “teaching”. Giving a patent for “20 years” do have this effect.

    I wish that if you see a patent, you can actually implement it. Nowadays, after decades and centuries of trial and error, a patent is written so vaguely that it becomes, effectively, a patent on idea, not a “clear path”, even for peers.

    I admit my english is bad, but can you elaborate more on “Secrecy” aspect? Monopoly does not mean secrecy, rather, the opposite. there is no need for a monopoly to keep sceret what it does, coz they can still prevent you from doing the same thing.

    Comment by C. T. Rambler — October 12, 2005 @ 2:10 pm | Reply

  3. […] Want proof? Ask WIPO (World Intellectual Property Organisation). Some may recall that I attended a course on WIPO Distance Learning Campus on Intellectual Property (and have the certificate to prove it). In the course, they mentioned “social contract”, such as author moral rights to be acknowledged, and the rights to expects one’s folklure to be respected by others so as not to misrepresent the folklure. However, guess what? They acknowledge that there is no legal procedures to enforce these types of social contract. Moreover, the course placed emphasis on  “Economic Value” of Intellectual Property, and if I recalled correctly, says that “WIPO is created to promote the economic interest of IP” in the first few chapters. [The latter statement is, however, not really supported by WIPO’s website statement on its vision, but the fact that it is in  their educational courses speaks volumes] […]

    Pingback by CyberTech Rambler » Intellectual Property Laws are not interested in social contracts — August 15, 2006 @ 2:57 pm | Reply


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