[WSIS CS-Plenary] Thinking about "intellectual property"is a mistake

[Milton Mueller]

Richard:
Thanks for your comments. I am interested in this debate 
only insofar as it affects the scope of the WGIG. 

If you choose to use a different label for the family of
law that includes "copyright," "patent," and "trademark"
than the rest of the world, that's fine, but your arguments 
below have no bearing on whether those topics should be 
"in scope" for the WGIG or not. 

I believe that all three are in scope, with the possible 
exception of patent law. In all three of the cases - but
especially copyright and trademark - the global space for
socio-economic interaction created by the Internet 
has created a perceived need for revised protection
methods and laws, on an internationalized basis. The
fact that WIPO has ongoing negotiations related to Internet
broadcasting, Internet domain names, and that WTO sought
to bring together trade and IPR protection via TRIPS should 
be sufficient to prove that point. 

Do we agree so far?
--MM

p.s. Take a look at my research on Internet & trademark 
before you make any assertions about how I don't 
analyze the specific effects of particular forms of IPR. 
http://dcc.syr.edu/marklepage.htm

>>> Richard Stallman <rms at gnu.org> 09/13/04 06:47AM >>>
    To say that
    patent issues are "completely different" from copyright is just 
    wrong - both involve a commitment to make valuable information
    public in exchange for limited terms of protection.

That's rather a stretch if you say it about copyright.  A book written
for publication has no value except through publication, so the term
"valuable information" hardly fits.  By having to strain so far to
find a meager commonality, I think you've proved my point.

But even if we disregard the strain, and imagine that that copyright
and patent had this abstract bit in common, it would not really
matter.  Their practical consequences are completely different.  For
instance, software copyright and software patents have totally
different effects, which is why most software developers favor
copyright and oppose patents.

    That is an important difference with significant governance
    consequences, but it is a variation on a theme, not a "complete 
    difference."

That statement reflects your decision to look at them at an abstract
level, rather than focus on the ways these different restrictions
affect people.  The term "intellectual property" encourages people to
do that--to think about the issues of copyright and the issues of
patents in terms of abstractions, rather than in terms of the
practical effects.  (It also carries bias in favor of treating them
like physical object property rights.)

     Same goes for trademark.

With all due respect, this is simply mistaken.  Trademark law was not
intended to encourage publication of anything (certainly not of
trademarks or logos).  It was intended to enable the consumer to know
reliably who made a product and what it is.

This provides an example of how the term "intellectual property" leads
people into false generalizations they ought to know how to avoid.  If
you start from the assumption that copyright law, patent law, and
trademark law are "variations on a theme", you will often be led
astray.

You're not alone in being led there.  I regularly find that law
professors, who are experts on copyright law, patent law, and
trademark law, who use the term "intellectual property" in their own
thinking are led into making factually incorrect statements about
these laws.  Their statements contradict facts that they already
know--but they failed to see this, because the term "intellectual
property" blinded them temporarily.  That's what it does.

The issues of copyright law and the issues of patent law are very
important.  The question is whether considering them in the WGIG is
useful.  Thinking about them in a biased and confused way isn't likely
to achieve anything good--and that is what will happen if people try
to consider them under the rubric of "intellectual property".