|Abstract||This paper looks at the past, present, and future states of Intellectual property with a critical lense. The focus is on an analysis of current trends and their positive and negitive aspects on society and culture.|
|Introduction and History||
Intellectual Property in the United States has become increasingly more
important in the last decade. The right to own one's genius is not a new
concept. However, with the arrival of the digital age, it has become much
harder to remain in control of one's intellectual property. Intellectual
property has grown from the need to protect one's new invention, such as soap,
to the need to protect a slogan or a color. In other words, intellectual
property rights no longer protect solely the interest of preserving a trade
secret; it is now the interest to preserve one's monetary gain.
The first form of intellectual property law was patent law. In 1790, Congress passed the first patent laws. These laws were modeled after European, patent, common law. Before Americans had the right to their intellectual property, it belonged to the King of England. If colonists wanted the rights to their inventions, they had to petition the state or ``the governing body of the colony.'' The first United States Patent Grant was signed by George Washington on July 31, 1790. Thomas Jefferson was the inspector, and together they issued the first American patent. Which was for a new method for making Potash. In 1790, the price of a patent was four dollars.
The Four Areas Covered by Intellectual Property: Patents, Copyrights, Trademarks and Trade Secrets.
Of the four areas, patents are the most common. Although they are difficult to obtain, they hold the strongest protection. Patents are grants from the government giving exclusive rights to ``make, use, and sell a product for 20 years.'' Their attributes include providing strong protection, and total exclusivity. Their downsides include long expensive, technical processes, and inventors must make all the details of their product known to the public. One must apply to the Federal government for a patent. Patents protect ``novel, useful, non-obvious and intangible'' ideas.
Copyrights are the most common form of protection. The reason for this is that copyrights are very easy to obtain. As soon as one finishes writing a piece, the piece has been copyrighted. Under United States Code 18, § 2318 and § 2319, infringement of a copyright is punishable by law. Copyrights protect all written pieces including, but not limited to: books, periodicals, songs and music, theatre productions including all accompanying music, movies and all accompanying music, letters, etc. Copyrights are important because they protect the First Amendments rights of freedom of speech and of the press. The right to speak freely is the right to ensure that what ones says or writes belongs to them and not hundreds of others.
Trademarks are protected under United States Code 18 § 2320, which ``bans trafficking in counterfeit goods or services.'' This means that anyone who infringes upon the trademark of another counterfeits a good or a service. Trademarks are the easiest are to infringe upon. This is due to the fact that persons trademark everything. The benefit of trademarking something is first to ensure that one creates something that speaks of their product. If one produces an item and then a certain slogan or picture can be automatically linked to the product, more consumers will purchase it. For example, one is more likely to buy Band-Aid brand band-aides than any other brand. The second benefit is that if anyone wants to use another's trademark, they must pay the owner. If for example, if one wanted to use three stripes on the design of their new running shoes, they would have to get permission from and compensate Adidas.
Trade secrets are the riskiest of the four areas. If one can keep a trade secret, he or she will have exclusive rights to that product forever. However, the trick is to keep a trade secret. Reverse engineering has made it so that almost every product can be replicated. If one tries to use a trade secret, the benefit is great, but the downfall is huge. If one's trade secret is discovered, the inventor loses everything. They will have no further claim on the product. The longest running trade secret is the formula for Coca-Cola. In 1886, a pharmacist named John Pemberton invented Coca-Cola. The Coca-Cola Corporation never applied for a patent. They relied on their trademark secret. Although many companies have reverse engineered the product, none have obtained the particular flavor of Coke. With a patent, Coke would have had to give up its secrets, but would be protected no matter what. With a trade secret, the information stays theirs, but if their secret is ever discovered, they will be sorely out of luck.
Cases In Atlantic Monthly Co. v. Post Publishing Co, the first court decision concerning intellectual property was given. This case was decided using common law and was reiterated by implementing statute law. In this case, a news editor published a letter that was not intended for the press. The decision held that a writer could claim ownership of his or her piece until the writer releases it or dedicates it to the public. The owner can do with the piece what he/she sees fit until they have it published for general consumption. The writer no longer held any rights to his work: ``At common law, an author owned his manuscript and could protect himself against theft thereof, and also had right to control making of copies until he released or dedicated it to public, as by printing it for general circulation, after which he had no control over publication thereof.'' According to this rule, as soon as a writer publishes his work, it leaves his hands and becomes public domain.
In U.S. v. Desktop Sales, Inc. , a company was charged $3.3 million to compensate IBM for infringing on their trademark. Desktop Sales sold their own memory boards in IBM, counterfeited boxes. This enabled Desktop Sales to sell their own product at a premium rate. Desktop Sales was able to use IBM's history of quality products, to sell below average products at high costs. In addition to buying low quality products at high prices, customers also met with the disappointment of not being able to use the warranty and customer service that comes with each IBM product.
The Sony Beta Max case was the case that launched Intellectual Property into the digital age. The Sony Beta Max was the first VCR. For the first time, one could tape a television emission and watch it over and over again. This was a concern to the owners of copyrights on television programs because if people could just watch their cassettes, they would no longer watch television. Also, customers were now making copies of programs that they did not hold copyrights to. Thus, the owners on the television shows brought suit against Sony stating that Sony was infringing on their copyrights. The Ninth Circuit US Court of Appeals denied the claim of the plaintiffs. Supreme Court Justice Stevens stated that if a product ``was capable of substantial non-infringing uses'' a product did not infringe on any one person's rights. Hence, any product that has overwhelming non-infringing uses is constitutional.
This argument is still being discussed 11 years later. Copyright laws are being infringed by both movies and music. One can now use software to download movies on the internet, and then copy it to a DVD with a DVD burner. The same is true for music. The Sony Beta Max case made it so that the inventor of the duplicating technology cannot be prosecuted if their product shows that its main purpose is non-infringing purposes. The discrepancy today is that companies like Grokster are creating duplicating software whose main purpose is infringement of copyrights.
Statutes and Acts
As Intellectual Property becomes increasingly more important in American society, so does American Intellectual Property law. The Federal government has enacted many statutes and acts to try and guarantee the property rights of inventors. Even though the first act of Congress in regards to Intellectual Property did not pass until 1790, our Founding Father always intended for IP to be part of American culture. Article 1 Section 8 of the US Constitution, has a clause that ``promote[s] the progress of science and useful arts, by securing for limited time to authors and inventors the exclusive right to their writings and discoveries.'' As US citizens, we have always had a constitutionally protected right to our discoveries and inventions.
Interestingly, the goal has changed. Since the inventor was intended to only have exclusive rights for a limited time, one can suppose that at a certain point it was expected that the new technology would be donated to the people for the general enhancement of their lives. The time when the inventor had exclusive rights was his/her time to reap the benefits of their work, but after their time was up, it became public property. Today, this has all changed. Copyrights and patents can be renewed and at no point is it mandatory for any information to become public knowledge. The inventor is allowed to benefit from his work until he dies. This is helpful to the inventor but detrimental to society.
A Federal statute from the turn of the Century mandated that all new copyrights would not invalidate old ones. Section 7 of the 1909 Copyright Act provides that, ``the publication of a derivative work does not affect the validity of an existing common law copyright in a pre-existing work.'' This means that when writer x writes a song and copyrights it, and writer y embellishes it and then copyrights the new version, both copyrights will still stand. Y will not cancel out X.
Since people have learned how to infringe upon others' copyright laws on computers, the Federal government had to respond in order to protect the rights of inventors. It came up with a solution with the creation of the Digital Millennium Act of 1998. The Digital Millennium Act consists of five titles, yet titles II and III are the most important. Title II is called the ``Online Copyright Infringement Liability Limitation Act.'' This act protects Internet service providers from being liable when one of their customer's takes part in copyright infringement on the Internet.
The second title of interest is title III. This title is called the ``Computer Maintenance Competition Assurance Act.'' It allows one to make copies of certain computer software disks in order to provide a back up in case of a computer malfunction. One is only allowed to make one copy of a disk for computer health purposes. Some say that this right stretches to allow one to make a copy of a music compact disk in case one should lose or damage the original. On the other hand, some do not believe it covers music or movie disks.
Intellectual Property has always been a part of American culture. The first colonists brought the idea with them from their native European countries when they settled the land. Then the framers of the Constitution provided its citizens with an exclusive right to their work. Laws concerning IP have changed with technology and will continue to do so. There are two future possibilities for IP. The first being that it will continue in much the same manner in which it has been going. Which is to say that IP laws will become increasingly more stringent so inventors can ensure that they receive any and all pay that they possibly can. The second possibility is that with the Internet and digital technology it is easier than ever to gain knowledge and information. Including knowledge and information that may be copyrighted by another. Still, it is even harder than ever to protect one's intellectual property. In a society and age where the line of public and private are so blurred, IP may become obsolete. If digital technology keeps growing at the rate at which it has been, there will be no way for inventors to safeguard their work and genius.
This section is about how the physical conception of
space influences the human interaction with
cyberspace; a man-made dimension of space. Thus, this
section is an attempt at how cyberspace can be
approached, be secured, and be nationally regulated.
Accordingly, my argument acknowledges how cyberspace
was imagined and then created. Cyberspace was created
in reference to the perpetual human fantasy: finding
a space devoid of social inequality, specifically, a
space where the fair use of information will be
protected by law.
Cyberspace in Formation
William Gibson is the science fiction writer who first came up with the word cyberspace. In his novel, Neuromancer, the term refers to ``a 21st century virtual dimension, entered into via a neuro-electronic interface, in which the world's data networks unfold before the user as a sensually vivid geography.'' As early as 1984, Gibson describes the Internet with its present and constantly metamorphosing features.
Historically speaking, ``the Internet began in the 1970's as a U.S. Defense Department network called ARPAnet.'' As ARPAnet progressed, the access to this electronic information network was at first restricted to professional elites. Professional researchers within governmental institutions, universities, and corporations, were the first groups of individuals to access the Internet. In this space, information of considerable value is shared. Such information belongs to the institutions which utilize it. The information became intellectual property. By intellectual property, I simply mean a copyrighted set of information, or any set of information that depicts sets of unique ideas constructed by a person or by a group, without even being legally certified as a subject to copyright regulation.
Restricted to professionals, the Internet was a professional tool that presupposed work-ethics behavior that applies to information sharing in the physical world. For example, if an employee breaks into private company files, she knows she will get fired. In the process of using the Internet the employee understands that breaking into information databases she is not supposed to access can get her fired. In other words, professionals who access information databases do so under the assumption that the mishandling of information is against professional conduct. It would be no different than literally, physically burglarizing or raiding a set of files. As it progressed, as this information acquired 2D forms, the Internet later becomes referred to as cyberspace. While the Internet and cyberspace may be interchangeably used, I claim that each term applies a particular aspect of informational space. Cyberspace emphasizes the spatiality of this information medium. The Internet emphasizes the electronic network of this information medium. On the other hand, the terms, the web, I use interchangeably with the term, the Internet.
The evolution of information space allows cyberspace to be more available to the general public. Being accessible to the public, it can no longer assume that all users of the Internet are aware of rules of handling and accessing information. And the fact that it was accessible to the public allowed the public to expand the function of cyberspace. The Internet became a wire through which the public could take out information. And cyberspace became a space on which the public put up information. ``As innovations, the technologies of electronic space are intended to function as alternatives to physical location and transportation. In actual use, they also function as social environments, as human beings adapt the technologies to fulfill their own needs and desires.'' However, the desires and needs of one person may become the nightmare of another. For example, I may find information on the web about the secrets of making good hushpuppies. Martha Stewart posted this information. On my iMac, I choose Edit / Copy. I open my web page and paste the information without bothering to give credit to Martha Stewart. I do not refer to her as the owner of this recipe. In fact, I find that this information is the final touch that makes my website unique. I'm happy. The secret on hushpuppies appears to be mine. Soon Martha Stewart finds out. And she wants to put me in jail, where she was two or three months ago. My argument against her is that I did not know I had to quote her. Besides, everything on the web belongs to everybody. At least this is the way I see it. Why can't I say that the secret to hushpuppies belongs to me as much as Martha Stewart? In conclusion, Martha Stewart and I have become each other's nightmare. The public access to cyberspace makes it more apparent that this space may be subject to some form of regulation. The regulation of cyberspace as an information space became a priority in the Clinton-Gore Administration. For example, in 1993, President Clinton formed the Information Infrastructure Task Force (IITF) to assists in ``the formation and execution of his Administration's 'vision' for the National Information Infrastructure.''
The public and Information
This is the issue: How does information that is taken off as well as put up onto cyberspace create conflicts that have forced the government to intrude on this unique relation between humans and information. For ``some time now, cyberspace has been characterized as an electronic frontier democratic and open to all, but such characterizations ignore the fact that only a minority of the population of the United States, let alone the world, is actually online.''
In a personal email interview, a graduate student admits, ``my personal website www.uweb.ucsb.edu/~darwin only has room for 50MB of information. This means I cannot post extensive pictures or large files like video and audio. I'm limited to textual information. If I wanted more space I would have to shell out money to some corporation for server space. Thus, the wealthy can afford more cyber-real estate than the rest of us can.'' In other words, unlimited information space is not available to all. It is assumed that the Internet is an open space, more socially tolerant and accessible to all. However, the feature that allows each person to access a large variety of information causes problems. Each information database or/and website requires a unique approach. Moreover, each individual accesses and acquires information as a result of her particular perceptions and approach.
The assumption about the accessibility of cyberspace: open, unbound and free, is a perception that the US government ought to de-legitimize. This I argue is the approach that would allow for the regulation of cyberspace on its own terms: the access to the Internet is not free, regardless of appearances, it requires the awareness of certain knowledge, it is a privileged space. Thus, it is a closed space. By explicitly claiming that cyberspace is a centralized space, the US government, has will decentralize the use of the Internet.
Before I go further into the possible social benefits that may arise after establishing the US government as the regulating institution for cyberspace, I'm going to examine the spatial content of cyberspace. Although the space of cyberspace challenges the traditional conception of space, cyberspace falls within a dimension of the physical world. For example, like the physical world, cyberspace is bound to the concept of time. There is no place in cyberspace that isn't bound by time. The notion of a computer network as a geographical space is still not understood. While the components of the Internet are scattered over the world, the Internet itself is regarded as a single network. Similar to the world, cyberspace circles around itself. Access to cyberspace requires some form of electronic wire connection.
As a single network, ``the Internet has been self-regulating and egalitarian within the limits of the technological access.'' In other words, it is the accessibility to this cyberspace that breaks its egalitarian forms. Whoever accesses the Internet and what is accessed in cyberspace simulates the inequalities we face in the United States, within its physical borders. Cyberspace may be a space that is conceptually created. Unlike earth, humans witnessed the conception of cyberspace. However, this gives further justification to the belief that the issues we, as humans, face in the social world have been extended to this space. We cannot think of a space without its relation to the present conflicts we are facing: social inequality.
The Internet, and particularly ARPAnet, in the 1970's, was the computer network space that was created as a space where information would be equally distributed . ARPAnet, in relationship to the world, was created because a group of professional were aware that information was not equally distributed to all people. Thus, the conception of ARPAnet could have not been possible if social inequality had not existed. So it can be assumed that ARPAnet may have started as an information equalizer because it was secured to provide such social accessibility; equal information access to all.
The security issue in cyberspace is based on the notion that we need to collectively think beyond the idea of cyberspace as a conceptual space. When the idea of cyberspace, for example, is merely invoked in the book by William Gibson, its physical space could have been regarded as solely a conceptual space. But the human creation and employment of the computer network have rendered cyberspace into a palpable or concrete space. Cyberspace is within the physical reach of humans. Cyberspace is real, a space with finite borders.
The lingering issue, from ARPAnet to the Internet to the more textualized cyberspace, is the issue regarding how to secure the copyrights of intellectual property while making them accessible to a large public. In correlation to this issue, the 1976 Copyright Act is a starting point that enables significant authorized others to both argue that she, for example, wants her information to be publicly accessed while within the similar occasions keep all of the intellectual property rights. Similarly, Section 106 of the 1976 Copyright Act covers the legal information transaction that happens of the Internet. For example, his Copyright laws allows for the right to reproduce information, to prepare derivative works, to distribute copies, to perform or act in accord with the copyrighted material and the right to display the given information. The only restriction of this law is that ``copyright protection subsists from the time the work is created in fixed form [. . .] Copyright is secured automatically when the work is created.'' Accordingly, the content of a web page is the fixed form of cyberspace that can be subject to copyright regulations.
On the other hand, this same law argues, ``Publication is no longer key to obtaining federal copyright.'' This even complicates the relation between copyright and web pages; which are visible and can potentially be fixed on computer screens. For example, the computer network is primarily made of public displays of numerous web pages and icons. There are websites who charge a fee for the viewing of their web pages. In the case of Martha Stewart vs. Myself, posted on her website, Martha Stewart's secret hushpuppy recipe may not be subject to federal copyright. However, as soon as I take the recipe off her web page and paste it on my web page, I have violated federal copyright laws. The issue is that copyright law protects the idea of an author. But it does not protect the medium through which the idea is expressed.
The Information Infrastructure Task Force ``came up with a controversial paper-called a white paper-which suggested the revision of the current US Copyright Act so that it can apply to the digital [internet] era.'' In attempt to keep up with the copyright violation issues that came up on the Internet, in 1997, for example, it becomes illegal to make copies regardless of financial gain and for another example, in 1998, it becomes illegal to circumvent copy protection schemes.
Furthermore, the anonymous process of copying and using information from the Internet has come to blur the distinction between theft and sharing. The distinction between the theft and sharing of information arises when it is assumed that information on the web is a form of commonwealth. Nevertheless, the direct connection between an author and the intangible content of her creation guides my ethical opinion about how issues regarding the relation between copyright and intellectual property ought to be addressed.
The problem, I argue, is to ensure that they-writers, singers, artists, actors-and the people who are in production, marketing, and management ``are paid for the time and effort they put in to create the intangible intellectual property products.'' In the claim that paying creative individuals and/or the producing industries is an ethical stand, I presuppose that the act of being paid reflects other forms of social relations that are not limited by exchange of money for intangible goods. In the act of wanting to pay for intangible goods, packaged in a form of solid good, e.g., paper books, e-books, CDs, DVDs, the buyer acknowledges the value of intangible goods. The buyer acknowledges the artistry of the author. She encourages the production industry to sponsor the author even further. Thus, the buyer recognizes it as a product worth buying a copy.
For example, the writings of Kurt Vonnegut interest me. Welcome to the Monkey House, is my favorite book by Kurt Vonnegut. In acknowledging the potential of Kurt Vonnegut's writing I recognize him as the author of the content I'm interested in. To an author of fiction books, writing becomes the means of making a living. Accordingly, he owns the copyright over his writing. Regardless of the material form that his writing appears in, Kurt Vonnegut own the content of his writing. The content of his writing, the intangible created good, uniquely recognizable as his, allows Kurt Vonnegut to claim that he owns the intellectual property. This is a possible effect of Copyright regulation.
The originality of the plot, organization of ideas in relation to abstracted social events, thus the presentation of content is what for example, distinguishes one writer from the next. The concept of intellectual property is based on the assumption that certain individuals have the capacity to present unique innovative ideas and/or inventions that either benefit some aspect of the social world or becomes a necessity to certain members of society regardless of its effect on the social whole. Whether it appears on the web or whether it is in form of a hard copy, I am for issuing copyright licenses for any form of intellectual property.
In my case, for instance, I may not care about the information rights of Martha Stewart, on the other hand, I care about Kurt Vonnegut's. However, this type of indifference towards the intellectual property of a person in preference for the copyright protection of another person entrenches even further the problem of intellectual property in cyberspace. Along with issuing copyright licenses, I argue that the most effective regulative form that the government may issue in cyberspace ought to be based on self-censorship.
Similar to government road signals and rules of driving for US drivers, the regulation of cyberspace ought to be based on traffic regulations. The US government ought to legislate Intellectual Property laws that regulate users' driving through cyberspace. Such a concept would allow Internet users to understand cyberspace on its own terms. Cyberspace would provide greater benefit to the United States if the government encouraged it to be used as a tool for social enhancement. Through this approach, the issue will no longer be who has access to the Internet. Instead, it will be how appropriately is access to the Internet distributed. Accordingly, this view acknowledges why cyberspace was imagined and then created. Cyberspace was created as the result of perpetual human fantasy: a space devoid of social inequality, specifically, a space where fair use of information will be nurtured by law.
|The Benefits of Intellectual Property||
I will argue here that IP is useful and can be used other than in monopolizing a technology or product. Since a brief history of IP has already been done, I will assume a basic knowledge of IP and how it has been used here. It is important though to understand what IP is to the masses, the definition used by organizations worldwide. I will provide such a definition as given by the World Intellectual Property Organization, an organization consisting of patent offices, IP lawyers, copyright holders, etc. who all agree to promote IP worldwide and advance IP as a tool in global trade and economy. Then I will look at one way in which IP seems to be best used and how IPs intent has been marred by users and thus misunderstood by the public. And since there is no way to present a case without concrete examples, I will present to brief summaries of how IP has helped both small business and economy grow. Before concluding I will look quickly at IP in Australia and the UK simply for accessibility. IP in countries in South America and parts of Asia, because it is for their own country, offer little of their publishing in anything other than their national or print languages. For global businesses looking for this same information, they contact the office directly and set up private meetings with interpreters. In my conclusion I will muse on IPs negative trend and how business is really all that seems to value it.
Intellectual Property Defined
Intellectual Property (IP) is a very debated thing, as we have seen so far. It is not the idea that is so touchy, but the use of it. IP comes in vaguely two forms: industrial property and copyright. Industrial property includes patents, trademarks and industrial designs. Copyright includes literary and artistic works. All of these things are tangible items. Music, sculptures and novels can all be copyrighted, but ideas cannot. IP is a constructed protection of the physical form of people's ideas. The construct of IP is not so bad. It protected Gutenberg and his printing press and Mozart when produced his many orchestral compositions, but we see that IP is being used more to stifle creativity rather than protect it with each new court case (e.g. Napster, Streamcast, etc).
Uses of IP
It seems that IP is best used as an economic tool. There will always be drawback to using IP, but that is really the nature of usefulness. Not everything on Earth has only good uses or only bad uses. We can see this in computers, where the same computer can be used by a researcher and a hacker. The original intent of the computer will blur in light of what the users intent is. The same goes for IP. IP as an economic tool includes the marketing or contracting of licenses, patents, trademarks, in both commercial and private transactions.
According to the World Intellectual Property Organization (WIPO) IP has helped foster global economic growth and economic growth in many country-specific cases because it promotes investment in private research and development (R&D). This is important at the global level because of trade. IP quickly became a tool to control piracy across borders. So IP is respected in all countries, developed or not. This is especially important in foreign investment. And when patent and trademark reform was introduced in the early 1990s in India, foreign investment in R&D rose with it, somewhat boosting the economy. IPs main use is in being an intellectual asset in the corporate world. Physical assets have shrunk in American and European corporations by some 30% between the early 1980s and 2000. According to WIPO about 40% of a company's assets are intangible and thus do not appear on balance sheets. These intangible items are all copyrights, patents or trade secretes that generally carry the value of whatever physical product the actually produces. This fact is why IP is so valuable in business deals.
Misunderstanding of IP Usage
In court cases all the public sees of IP is how it is used to prevent others from using a certain thing, a song or computer chip, in a certain way. IP is also used to license products and technology as a way to discourage theft and misuse. By licensing technology, rights are given to the user to work in almost any way they please except those that would harm the technology or alter it from its licensed state. Licenses allow for products and technology to be improved or modified, at the creators discretion. So there is still movement and creativity. Licenses do not prevent the use of a creation, they protect the creator and make a space where the creator can modify the creation without somehow oppressing the user. Pricewaterhouse Coopers, an international accounting and consulting firm, released a statement in 1999 that the global IP market in licensing alone was worth over US$100 billion.
Some businesses got their start through IP. Patents are at the heart of this. In procuring a patent, the author must give full disclosure in their application on the process of creation and the processes their work/technology uses. This is open for public viewing through the patent office and are now searchable on the internet at the US Patent and Trademark Office site. All patents have time constraints and once the patent expires the author loses sole rights to that work. That means authors will compete, depending on the work, to improve upon or create something better than the current work and obtain a patent on the superior product once the patent on the current work expires . So IP, here in the form of patent, does drive creativity, especially if an author can turn his/her work into something that will sustain future works through financial success.
Examples of Good Usage of IP
Financial success from patents and marketing do happen, it happened to Toyota. Saikichi Toyota, father of Kiichiro Toyota who began the automobile business, invented an automatic loom and patented it. By 1909 the loom was otherwise perfected and patents were renewed to protect the product as it was modified and improved. One modified version, Toyota Type G, reached the market and Kiichiro Toyota sold Platt Brothers & Co. rights to exclusively manufacture and sell the Toyota Type G in any country except for U.S., Japan and China. Kiichiro Toyota used the $100,000, equivalent to US$25 million now, to start an automobile business and fund the necessary R&D.
A similar thing occurred in the pharmecuetical industry in Central Europe, boosting the economy of Croatia and expanding the company across three countries. The company, Pliva, discovered the drug azithromycin, an antibiotic used for bacterial infections such as bronchitis, pneumonia, ear infection, etc. . Pliva patented azithromycin in 1980 and was registered by the US Patent and Trademark Office. Pliva then licensed the drug to Pfizer, a large pharmecuetical company in the U.S., who marketed the drug as Zithromax and sales of it valued at US$1.5 billion in 2001. Pliva collected and continues to collect enough in revenues to expand across Croatia, Russia and Poland and is still one of the largest pharmecueticals in Central Europe, funded mainly from royalties of azithromycin.
Actually, IP outside of America is not nearly as negative as IP within America, demonstrated by the above examples. IP has its share of success stories that go beyond lining the pockets of ``corporate slime,'' as many Americans would put it. IP has boosted the pharmecuetical industry in South America as well as in Central Europe. In 1977 the Brazilian Ministry of Health aided a small lab, Biobras, in a joint-venture deal with pharmecuetical giant Eli Lily. Biobras was, at the time, a laboratory in the Federal University of Minas Gerais, Brazil producing enzymes through a license from the New England Enzyme Center in the U.S. . When the six-year contract was set with Eli Lily, Eli Lily then trained Biobras in R&D, marketing and administration. After the contract expired Biobras continued to be an important animal insulin manufacturer that used cutting edge technology. Biobras is now the only non-multinational company, having only three multinational competitors, that has the ability to produce human recombinant insulin. Biobras also developed the technology it used in its insulin research with the assistance of the University of Brasilia and uses its patents Brazil, Canada, Europe and the U.S. to support itself and its R&D.
IP has also helped groups of people not tied to any specific company. Few people know that Tequila is not only a hard liquor, but a geographical indication as well. Tequila has been protected by a presidential decree in 1977 that allows only five Mexican states, where the raw material - agave - grows, to produce it. These indigenous communities developed from the revenues generated by the liquor and their local economy blossomed as a result. Another example of this is the Indigineous Label of Authenticity that Australia created in 1999. The label allows for an integral preservation of cultural materials/goods of Aboriginal and Torres Strait Islander art, guaranteeing a fair treatment and return to the participating communities while expanding the knowledge and understanding of their cultures and heritage.
IP Outside of America
In Australia IP holds the same definition as the WIPO and extends to cover cicuit layout rights, designs and plants breeder's rights. Ciruit layout rights pertain to ownership, manufacture and exploitation of an original layout of an integrated circuit or chip while plant breeder's rights pertains to the same thing for newly bred or discovered strains of plants but does not require that royalties be paid if such a plant is a grower's crop (i.e. a plant produced, but not owned by the producer). Designs, which the UK also includes in its IP coverage, are those that are ``new and distinctive'' which give products a certain look that no other product or line of products has or can have. This is an especially difficult protection because the design must not already be published anywhere else, and cannot also be used by anyone else. Rights to a design will not be given otherwise, and once established the rights only protect the design itself, not the make or the product.
In the UK IP also holds the same definition as the WIPO, but it includes distinctive designs, performer's rights, database rights, semi-conductor topographies, plants breeders' rights, geographical indications of origins and conditional access technology. Plants breeders' rights are dealt with in a similar fashion as Australia. However in the UK, all things pertaining to plants and breeding - including IP rights - are under the jurisdiction of the Department for Environment Food and Rural Affairs (DEFRA). The last two items are not something that can be patented or copyrighted, but are things which hold special clauses in contracts dealing with them. Geographical indications of origins refers to goods that are linked with a certain point of origin: Calamata olives/figs are tied to the Calamata region in Greece, and if products are somehow labeled as being from a certain point of origin without actually originating there, legal actions can be taken. It violates trade descriptions laws regarding geographical indications of origin. In addition to this DEFRA also holds partial jurisdiction and has its own trade laws that would be violated.
Conditional Access Technology is generally something used by broadcasters where the signal sent can only be received on an encrypted transmitter so that a specific, at least not public, decoder is necessary. This way the broadcaster charges the recipient for signal transmission and usually upon payment a person can use whatever decoder is needed to access the transmission. Because of the nature of the technology this is under the partial jurisdiction of the Telecommunications UK Fraud Forum (TUFF).
In Australia and the UK, the most common method of using IP is through assignment or licensing of IP rights. The owner of a certain IP can draw contracts legally licensing or selling the rights of that IP to and in other countries. In those cases, it is then the licensee's duty to seek protection for the international protection of that IP. If there is no protection, then the IP rights owner can seek legal action against the licensee for breach of contract. While this is also common in the U.S., it is not the primary use of IP, the primary use is to protect trade secrets. Of the three (Australia, UK and U.S.), the U.S. differs the most. In Australia and the UK you copyright and license everything protected under IP and the process of applying for a patent or license is fairly quick. It can take up to a year and does not always require the assistance of a patent attorney or IP lawyer. In the U.S. however, it can take up to three years to acquire a patent and the process almost always requires the intervention or help of a patent attorney or IP lawyer. Now in each country, in order to obtain a patent the work cannot already have an existing patent in another country. This falls under international protection, where each country participating in the WIPO respects patents from foregin countries and enforces this protection through trade laws and business contracts (i.e. licensing agreements).
Reflections on the Benefits of IP
IP is most valued in business and it is only business that seems to value IP at all anymore. With organizations like Creative Commons, a community of innovaters and inventors, who have made copyright use flexible by creating licensed online statements of use, IP is moving towards obsoletion in many cases. These licensed statements of use made through Creative Commons outlines a basic allowance by the creator for others to use a product/technology/work and also, at the authors discretion, allows for the modification and sharing of that product/technology/work.
I think the way for IP to go and thrive in a more communal and less negative, greed-based or greed-faced way is to fully launch into international deals. This includes organzations like creative commons, and will hopefully do more to boost global trade and relations. The examples given of IP are all outside of the U.S. and the emphasis is always placed on licensing rather than securing trade secrets. Trade secrets are the top form of IP in America, over half of the IP assets in any one company is held in the form of trade secrets. IP is covered with portraits of monopoly and stifling creativity in America, I think because so much of it is tied up in trade secrets and information witheld from the public. Even in obtaining a patent, certain peices of information are still witheld from the public. Generally the process of applying for a patent requires that all information on a work/invention be disclosed and made public. This is mainly to guard against infringement and false suits meant to make money off of insurance agreements. At the same time the information open to the public fosters creativity through competition. Other people can improve upon or tweak the work that is published in the patent office, and simply wait for the current patent to expire before jumping at the chance to patent something of their own. The basic concept is fine, it does nothing wrong. It is people who manipulate IP that ruin it for everyone else.
Plagiarism is a very well understood concept. When a student takes someone else's work and presents it as their own, then its plagiarism. The consequences are severe and most teachers can easily spot plagiarism. The idea of plagiarism is to use the work of another person as if it were your own. What would happen, however, if you take an idea from a friend or a family member? If they suggested a way for you to reword your sentences or paragraphs, would you be obligated to give them the credit for their input? How far does the idea of plagiarism stretch? Your essay is your own work. However, it was also the work of those who helped you. The essay was organized by your own creativity and incorporated a lot of your own ideas. However, you took a few ideas from your family and friends. Plagiarism, like intellectual property, can be very broad and very difficult to define.
Ownership of intellectual work is protected by the United States Patent and Trademark Office (USPTO). Their role in this country is ``to promote the progress of science and the useful arts by securing for limited times to inventors the exclusive right to their respective discoveries (Article 1, Section 8 of the United States Constitution)'' (uspto.com). Inventors are given special rights to their work, mainly reproduction and distribution rights, as an incentive for their talent. Personal use of copyrighted materials is restricted down to ``fair use'' of the product. Fair use allows educators to use these products for educational purposes only. This includes the right to make multiple copies as long as if it is not sold for any monetary profit. For non-educational purposes, however, reproduction is not allowed. The courts would only allow a ``transformative'' use of the product. This includes ``transforming'' the product into something new or of new utility. It is the same idea adding quotations to an essay. As long as these rules are withheld, inventors will receive enough incentive to give them a reason to keep up their work.
Incentive is not exclusively given to inventors. The USPTO also gives incentive to those who trademark catchphrases. For example, Nike's ``Just Do It'' or Chevy Trucks ``Like a Rock'' are all trademarked catchphrases. These companies are protected against other people who want to use these phrases without permission. However, the only things patented are the words ``Just,'' ``Do'' and ``It''. The meaning behind it can not be copyrighted as easily as the words are.
Take for example the slogan ``Let's Roll!,'' the last known words of Todd Beamer. He was the man widely known for his heroic act to save hundreds of peoples lives form terrorists. Beamer's family patented the phrase ``Let's Roll!'' and widely uses it to promote the Todd M. Beamer Foundation, a ``charity created to equip children experiencing family trauma to make heroic choices everyday in honor of Todd Beamer and the other heroes of the United Flight 93.'' Their slogan was based on what the last recorded words of a man who risked his own life to save others.
Wal-Mart was given the use of the Todd M. Beamer Foundation phrase to motivate their employees during its annual shareholder meeting. They said that it was an inspirational use of the slogan ``Let's Roll!'' Douglas A. MacMillan, CEO of the Beamer Foundation, told the Arkansas Democrat-Gazette that the words meant ``a call to action.'' Another use of the slogan was at Florida State University (FSU). Bobby Bowden, head coach of the FSU football team selected the theme, ``Let's Roll!,'' to start off the new season. He said, ``We are going to go with Let's roll; based on the airplane guy making that remark .'' Bowden did not even know Todd Beamer's name. The coach who was criticized for this comment responded, in his defense, that one of the things he is legendary for is forgetting names. The Beamer Foundation did not detach itself from the use of this phrase by Walmart or FSU. Instead, MacMillan embraced it. He said that the use of this phrase in football games have carried on Beamer's legacy. MacMillan stated that, ``Todd was a huge sports fan. I'm sure he's thrilled.'' The phrase has quickly lost its original meaning. It went from the last recorded words of a brave man to a few words printed on the back of t-shirts at a football game. By trademarking ``Let's Roll!'' the Beamer Foundation took ownership of the phrase. They used the words. However, the meaning has been changed in both instances.
Is it right to say that MacMillan owns the phrase even though Todd M. Beamer was the man who said it? By owning the words ``Lets Roll!'', MacMillan has changed the meaning of the phrase and sold it to several different organizations. Beamer is not around to say who receives ownership of this phrase but his family has taken legal ownership over it.
The death of a family member is problematic in many ways. One problem is whether or not intellectual property can be inherited. As of today, it is not allowed. There are still court battles over whether or not family members may own intellectual property of their celebrity ancestors. If money can be inherited then ideas or intellectual work that can be used to make money should also be inheritable.
Currently, intellectual work extends as far as musical compositions. Artists and producers own the copyright to their work. However, with the widely accessible internet, music is massively shared by people connected to the network. The law says that sharing copyrighted materials over the internet is illegal. However, millions of people share over a billion megabytes of copyrighted material over the net anyway. Here is the ethical problem. Most of the people who share files over the internet know that it is illegal. But why do they do it? This is an issue here between the law and morality. People find it morally correct to share these files because large corporations fighting to protect their products are driven by greed and power. The laws that protect intellectual property are beginning to become extremely corporate.
|A Critical Examination of Intellectual Property Through Various Moral Frameworks||
Intellectual property, like physical property, is made, consumed, re-used, hoarded, and built upon. As a result of the human interest in and uses of the different kinds of intellectual property, it is a target of greed as well as survival. Unlike physical property, intellectual property (ideas) isn't tangible. Rather than stealing someone's idea, image, etc, one can simply copy it or use the idea to build something like a circuit board. Nothing is materially lost from the original creator of the idea, while something is gained by the appropriator of it.
Despite these facts, under current U.S. law, ``copyright'' and ``patent'' holders, that is those who originally created some idea or invention, respectively, are granted the right to monopolize the reproduction of that good. This right is clearly spelled out in Article I, Section 8 of the Constitution; ``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.'' This right was granted under the premise that there had to be economic incentives for inventors and those in the arts to invest in the creative process. With this intent in mind, I will proceed to critically analyze the current state of intellectual property in the U.S. under various moral frameworks. I point out these shortcomings in order to point out areas to improve, rather than simply catalogue wrongs done. After this analysis I will suggest an alternative, at least for some cases, to the current intellectual property regime.
The basic idea of utilitarianism is to behave in a way which results in more good than bad consequences, preferably with the most good possible. Utilitarianism is similar to what's known as 'cost-benefit analysis,' except that the latter is principally concerned with monetary costs and benefits, while the former is concerned with all goods and bads and in regard to all stakeholders.
In the case of U.S. law, copyrights and patents are issued because of the supposed gain towards the progress of science and the arts. The problem with this logic is that copyrights have often been extended to the life of the author plus seventy-five years. This virtually guarantees that no one who is alive at the time that something is created will be able to take full advantage of it without paying whatever the copyright holder asks. Patents are currently being granted for the ``discovery'' of gene sequences and plants, among other nonsense. Patents typically last 20 years, but they can be extended. When a patent expires, another inventor can improve on the design or produce it more widely, but not until then. The alternative to waiting is paying whatever the patent holder asks, which could be a lot. Both U.S. copyright law and patent law demonstrate that the protections that have been set up to create an incentive for inventors has been abused to the detriment of the public.
In addition to the possibility of stifling inovantion, copyrights and patents also allow the holder to ransom the health and welfare of the public. If there is a drug under patent which would reduce the number of heart attacks or other deadly inflictions by half, it's up to the holder of the patent to set the price. In this case, there are many who can't wait long enough for the patent to expire; they will die trying. These examples and many more show the shortcomings of our current intellectual property regime in terms of maximizing good consequences.
Rights Ethics and Duty Ethics
Rights and duties are reciprocal concepts. Where there is a right to be left alone, others have a duty to leave you alone. In cases where there is a right that others not do something, that is called a negative right. While many believe in strictly rights concerning liberty, such as Libertarians, others believe that people have at least a right to have basic needs met, such as Socialists. One can simultaneously have liberty rights and welfare rights, such as having the freedom of speech and to Medicaid.
On one hand, liberty is preserved by allowing people the freedom to create without the fear of someone stealing your invention. On the other hand, once something is copyrighted or patented, people are no longer free to create it. Even with knowledge of how something works is readily accessible, one would be prohibited from selling it, themselves. People presumably have the right to not have things taken from them, but the only things taken if someone's intellectual property is copied is potential profit, recognition, and/or control of the invention. Even if one were to consider this theft, it could be justified if the person had a right to welfare that they were being denied.
Virtue ethics is a moral framework within which if you act according to the virtues of character (i.e. wisdom, prudence, righteousness, etc) and for the right reasons, you are a good person. Consequences are less important in this framework because despite doing one's best, fate often intervenes and disturbs one's plans. The best known promoter of virtue ethics is Aristotle. In Nicomachean Ethics and The Politics, Aristotle defines the virtuous person and society as something that is culturally defined, community oriented, and directed toward the perfection of character. These goals trump claims for the respect our modern notion of concrete rights.
Intellectual property, in terms of rights of copyright holders, is not necessarily a meaningful concept as it relates to virtue. If one creates a product in order to make a living, that is a necessary means to the end of being a virtuous person. On the other hand, if one meets their own needs, and by a lack of generosity doesn't share their wealth with those who need it, that is greedy and wrong. It would be hard for multi-millionaires to argue that they are not being greedy by hoarding money and living a life of luxury off of a product, especially if there are people who need the product and can't afford it or there are people who are starving. The key is to find the ``Golden Mean,'' the intermediate position between greed and being too open-handed with one's money.
The progress of science and the arts would most likely be considered a good thing under virtue ethics because it allows people to, for example, overcome childhood illness and live a full life and become virtuous. To this end, a virtuous society would find ways to promote science and the arts. That society would find uses for these things is not a blank check for people to behave immorally in other ways, which is the sticking point for intellectual property today. Examples of this would include things like nuclear weapons creation (because of the excess of destruction they cause), and withholding AIDS drugs for those unable to pay for them (because of greediness of the act).
Theories of self-interest would tend to suggest that if everyone acts according to their own interest, the world would be a better place. The classic self-interest theorist is Thomas Hobbes, who promoted self-interest as a way for people to mutually restrain each other. Free-market capitalism would be another expression of this ideal. Hobbes would leave the decision about whether to acknowledge intellectual property to the ``Leviathan,'' or dictator, while capitalism supports the idea of patenting and copyrighting and would leave all further decisions in the hands of the owner.
|An Alternative: The Commons-Based Peer Production Model||
Before capitalism existed per se, there were large areas of open land that were considered to be available to the commoners who lived there (a.k.a. commons). While this allowed various groups to perform economic activities like raising sheep, there were also some serious problems related to a lack of guardianship. The most serious problem was the difficulty in getting the users of the land to decide what amount of cattle each grazer should be allowed to use in order to not over-work the land. Here we encounter the ``free-rider'' problem, where no matter what everyone else does, you are better off acting on your own to maximize your profits (or in the civil rights arena, minimize your risks). As a result of depleting resources, much of the land formerly available to commoners was enclosed and made private in order to maintain it.
``Commons-based peer production'' refers to a model somewhat similar to the commons that existed before the enclosure movement. Instead of dealing with working on physical land, which can be depleted, commons-based peer production concerns less tangible things, such as software, writings, photos, etc. The idea is that by allowing collaboration, the public good and people's creative talent can best be served. This is antithetical to our current copyright regime in that it relies on non-economic incentives to promote science and the arts.
One kind of commons-based peer production is ``open source'' software. Whether a piece of software is ``open source'' or not depends on if they allow other software developers to see all the code they are working on, contribute to the projects, test them, and make their own versions. The reasons why people support open source software are that it's free, its Free (capital ``f'' means you are free to do anything you want to it), it allows them to modify it, and they believe it's as good if not better than commercial software.
The ethical advantages to this method of software production are numerous. First, it creates a community project that brings people together. This social interaction is key to virtue ethics as it is the staging ground for finding out and practicing the good. Second, there is no economic exploitation involved in the production of the software. People work on the project at their leisure and the end user can find the software online for free or buy it at a modest price. Finally, there is no monopoly on what people can have, so the corrupting influence of that control isn't, either.
Creative Commons- Variable Licenses
Creative Commons is a project to promote a different copyright regime; ``some rights reserved.'' Under this new paradigm, inventors, writers, etc. can decide what sort of restrictions they want to put on their creations. These include requiring attribution, that the product not be used for commercial purposes, that the original work not be altered, or that any derived works be shared under the same conditions as the original. Creators are also free to use any combination of the above. In order to get around these specific reserved rights, the prospective use has to either be ``fair use,'' or with the permission of the author.
This ``some rights reserved'' regime is unconventional, yet beneficial in several ways, including the following example: The varied license schemes allow authors to take a moral stand on how their creation can be used. Rather than trying to re-write the laws, which takes time, money, and may not even be a real possibility, an author can say ``I want my design for a hydrogen-powered car to be shared, but I want to make sure that any improvements are also made public.'' Such decisions regarding the public good will now be possible and enforceable.
Enforcing intellectual property laws as they stand now is morally problematic. A dialogue should begin regarding what sort of laws we need to promote the public good, citizens' moral character, what the rights and duties we have toward each other, etc. There are alternatives to the way we currently handle intellectual property (for example, not acknowledging its existence), and they would be part of a comprehensive pursuit towards a more ethical legal and/or social system. Anything short of discussing the ethical implications of intellectual property in the context of evaluating its worth would be short-sighted.
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