Debate II: Intellectual Property
Patents and Copyright protection should be maximized, it is too risky to do otherwise...
What is intellectual property or IP?
Definition:
Intellectual property, often known as IP, allows people to own their creativity
and innovation in the same way that they can own physical property. The owner of
IP can control and be rewarded for its use, and this encourages further
innovation and creativity to the benefit of us all.
"In some cases IP gives rise to protection for ideas but in other areas there
will have to be more elaboration of an idea before protection can arise. It will
often not be possible to protect IP and gain IP rights (or IPRs) unless they
have been applied for and granted, but some IP protection such as copyright
arises automatically, without any registration, as soon as there is a record in
some form of what has been created."
The four main types of IP are:
1) **Patents for inventions - new and improved
products and processes that are capable of industrial application
2) Trade marks for brand identity - of goods and services allowing distinctions to
be made between different traders
3) Designs for product appearance - of the whole or a part of a product resulting
from the features of, in particular, the lines, contours, colors, shape, texture
or materials of the product itself or its ornamentation;
4) **Copyright for material - literary and artistic
material, music, films, sound recordings and broadcasts, including software and
multimedia
http://www.intellectual-property.gov.uk/
A brief history of
copyright...
The scholars of Ancient Greece and the Roman Empire were the first to be
concerned about being recognized as the authors of their works, but they did not
have any economic rights. It was not until the invention of printing in the late
fifteenth century that a form of copyright protection was devised. Until then,
the copying of a manuscript was a painstakingly slow process done mainly by
monks. It was limited to copying religious works for orders and the royal courts
of Europe. The majority of people were illiterate; only privileged members of
society had access to these manuscripts.
The Father of American Copyright.
Noah Webster
crusaded to obtain copyright protection not only for his successful spelling
books and dictionaries, but generally for all authors. Under the Articles of
Confederation, he personally traveled around the country to lobby each
legislature to pass a copyright statute. He also maintained an active
correspondence with many of the drafters of the Constitution, and early members
of Congress and the administration, some of whom were authors
themselves—including James Madison, George Washington, Thomas Jefferson, and
Alexander Hamilton. This engraving is from a Samuel F. B. Morse portrait of
Webster. Webster’s lobbying efforts continued through 1831, when he successfully
argued for an extension of the period of copyright protection. The extension
bill was introduced and supported by his son-in-law, William W. Ellsworth, in
the House, and his cousin, Daniel Webster, in the Senate.
Webster’s American Spelling Book of 1783, which eventually sold over 30 million
copies, and his American Dictionary of the English Language, published in 1838
when he was in his seventies, were instrumental in developing a standard form of
English for the new country.
http://www.digitalopportunity.org/article/view/110790/1/
New Delhi, May 4, 2005: The advent of free-market, knowledge driven economy is
reshaping many paradigms; an important one being the way intellectual property
is perceived and treated. In the digital era, established norms about ownership
rights of individual/indigenous resources have either become questionable or
defunct and irrelevant. At the same time, these issues remain important for a
country's economic well being, especially as each nation scrambles to safeguard
its position in the free-market tug of war.
In an attempt to understand these issues, the British Council and the Developing
Library Network, jointly organized a talk - Copyright in the Digital Era – by
Prof. Paul Sturges, of the Dept of Information Science, Loughborough University,
U.K. Prof. Sturges spoke at length about copyright, its history, the present
scenario and emerging issues. Prof. Sturges is also a consultant to OneWorld
South Asia.
He said, "the very concept of copyright, as we know it today, is
Anglo-American. Traditional economies, including India, have never taken an
individualistic or materialistic approach towards invention/art/traditional
medicine as they always regarded knowledge as communal property. A number of
conflicts arising in the international arena regarding intellectual property are
because of the differences in the two approaches."
Prof. Sturges said: “Historically, the concept of copyright can be traced to the
industrialized nations in the 18th century. Copyright was treated as a legal
bargain between the creators and the State that enabled a reward for sale by
financial means or through the recognition of one's contribution.”
Printed matter - books, scientific papers and other material - could be
protected by law, published, sold and put in shops to market. Copyright
infringement, if any, was limited because the process of copying manuscripts was
cumbersome with the technology then available.
The digital era has removed such procedural restraints and entire manuscripts
and art work/software can not only be copied but also disseminated with the
click of a button. People have easy access to intellectual resources because of
photocopying, hacking and file sharing.
The response of the copyright industry has so far been stringent and more so in
the last few years. Again, Microsoft came up as the most common and relevant
example of various infringement suits that have been brought up against smaller
companies and even individuals in some cases.
Going Forward...and on the other side:
Some sections of the international civil society feel strongly that copyrights
do little but breed monopolies and place an undue emphasis on individual gains
rather than benefit
the society.
An important example would be the open source and open access movements for example software like Linux or the popular online
encyclopedia Wikipedia.org.
Prof. Sturges stressed that in the current scenario, enforcement of copyright
may indeed not be the best way forward. He concluded by saying that it was
important for the public sector and civil society organizations to understand
the current trends in copyright and lobby governments for changes that protect
the interests of the whole community.
An interesting article:
The Purpose of Copyright by Lydia Pallas Loren
Lydia Pallas Loren is Associate Professor of Law, Northwestern School of Law of
Lewis & Clark College.
http://www.open-spaces.com/article-v2n1-loren.php
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The newspaper you read this morning, the television show you watched last night,
the movie you are going to see this weekend, the computer software you use to
prepare your letters or send your email, the music you listen to in the car on
your way to work: they are all copyrighted. Copyright permeates our lives and
yet, despite its impact on our lives, relatively few people, including lawyers,
have sufficient knowledge or understanding of what copyright is. And far too
many people, including lawyers, have major misconceptions concerning copyright.
These misconceptions are causing a dangerous shift in copyright protection, a
shift that threatens the advancement of knowledge and learning in this country.
This shift that we are experiencing in copyright law reflects a
move away from
viewing copyright as a monopoly that the public is willing to tolerate in order
to encourage innovation and creation of new works to viewing copyright as a
significant asset to this country's economy. The most recent example of this
shift is the new Digital Millennium Copyright Act, sign by the President on
October 28, 1998.
Understanding the root cause and the dangers of this shift requires exposing the
most fundamental and most common misconception concerning the underlying purpose
of the monopoly granted by our copyright law. The primary purpose of copyright
is not, as many people believe, to protect authors against those who would steal
the fruits of their labor. However, this misconception, repeated so often that
it has become accepted among the public as true, poses serious dangers to the
core purpose that copyright law is designed to serve.
The core purpose of copyright law is not difficult to find; it is stated
expressly in the Constitution. Article I, section 8, clause 8 of the United
States Constitution provides that Congress shall have the 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 clause is the constitutional basis for the Copyright Act and also the
Patent Act. It is the only clause in the grant of powers to Congress that has a
stated purpose. Section 8 of Article I gives Congress the power to take such
actions as declare war, coin money, raise and support Armies, and provide and
maintain a navy. Yet none of these other grants say for what purpose the power
is to be exercised. The copyright clause, in contrast, is very specific about
its purpose. The exclusive rights that are granted to authors are "to promote
the Progress of Science and useful Arts." To fully appreciate this clause, one
must understand "science" in its eighteenth century meaning. At the time of the
writing of the Constitution "science" denoted, broadly, knowledge and learning.
So the core purpose of copyright law, as expressly stated in the Constitution
is: to promote the progress of knowledge and learning.
Why did the founding fathers feel the need to state the purpose of copyright and
patent, expressly, when none of the other enumerated powers has an express
purpose stated? One probable reason lies in the history of the monopoly of the
copyright.
A Quick Trip Back in History
When the printing press was introduced into England in 1476, the
need for
protection of printed works was inevitable. The probable genesis of copyright
law was the crown's grant of a letters patent, the printing patent, giving one
entity a monopoly on the printing of certain works. Of course, a fee for that
monopoly was paid to the crown, thus making the letters patent a source of
revenue for the crown.
If the crown could grant these patents, the guild of booksellers, called the
Stationers' Company, found that they could agree among themselves to allow a
monopoly on works. The members of the Stationers' Company were almost all of the
printers in England; if they agreed to respect one another's claims to
particular works it was a de facto monopoly. Thus, the idea of a "copyright"
started out as a member of the guild registering the title of the manuscript or
"copy" with the guild. Registering a copy with the guild gave that printer the
exclusive right in the copy. Thus copyright as first used was a noun - the
exclusive right in the copy, whereas today many think of copyright more as a
verb - the exclusive right to copy.
A bookseller's registration of the copy with the guild gave the bookseller the
exclusive right to print and vend the work as a matter of private law, agreed to
by members of the guild. The problem with private law, however, is that it can
only be enforced among those who have agreed to it. The bookseller's private law
copyright was no exception. It was enforceable only among the members of the
Stationers' Company. Because of this limitation, the booksellers often sought
public affirmation or codification of their private law.
In 1557, the desires of the booksellers and the desires of the crown coincided.
The crown perceived the need to gain greater control over "the dangerous
possibilities of the printed word" and so granted a royal charter to the
Stationers' Company that limited most printing to only members of the company.
This charter also empowered the company to search out and destroy "unlawful"
books, which gave the guild the public enforcement mechanism for its private
law. If a nonmember was printing a work that had been registered with the
company by a member, the nonmember could now be stopped. It also meant that if a
work which was disagreeable to the crown was being published, it too could be
stopped. This arrangement provided the crown with added policemen to enforce its
goal to control printed works. Censorship was born.
The power of censorship and press control through the Stationers' Company
copyright lasted for over 150 years. Finally, in the early 1700s parliament
refused to continue to support the monopoly that the stationers had enjoyed for
centuries and the power of censorship that the crown had enjoyed along with it.
Copyright in the United States
The framers of the United States Constitution, suspicious of all monopolies to
begin with, knew the history of the copyright as a tool of censorship and press
control. They wanted to assure that copyright was not used as a means of
oppression and censorship in the United States. They therefore expressly
provided for the purpose of copyright: to promote the progress of knowledge and
learning.
With the stated goal firmly fixed in the Constitution, the task of accomplishing
that goal was given to Congress. The means for achieving that goal are also
stated in the Constitution. The promotion of the progress of knowledge and
learning was to be accomplished by "securing for limited times to Authors ....
the exclusive Right to their ... Writings." The monopoly of the copyright would
be tolerated, but only as a means to an end. The Constitution adopts a Field of
Dreams approach to the creation of works of authorship - the idea that "if you
protect it, they will come." By establishing this marketable right to the use of
one's expression, copyright supplies the economic incentive to create and
disseminate ideas. As the Supreme Court has recognized: "The immediate effect of
our copyright law is to secure a fair return for an 'author's' creative labor.
But the ultimate aim is, by this incentive, to stimulate artistic creativity for
the general public good."
In fulfilling the constitutionally mandated goal of copyright law, Congress has
had to ask, as one early legislative report did, two questions: "First, how much
will the legislation stimulate the producer and so benefit the public; and
second, how much will the monopoly granted be detrimental to the public?" As
Judge Walker of the Second Circuit recently summarized: "The copyright law seeks
to establish a delicate equilibrium. On the one hand, it affords protection to
authors as an incentive to create, and, on the other, it must appropriately
limit the extent of that protection so as to avoid the effects of monopolistic
stagnation." The founding fathers wanted copyright to be a mechanism by which
our democracy would grow and flourish - a way in which our storehouse of
knowledge is stocked.
An Interesting Video
http://www.cnn.com/video/partners/clickability/index.html?url=/video/tech/2006/07/23/yoon.anti.piracy.snitches.cnneo
found on CNN.com:
http://www.cnn.com/video/partners/clickability/index.html?url=/video/tech/2006/07/23/yoon.anti.piracy.snitches.cnn
The Future of Copyright
The protection
granted to copyright owners is essential in providing the economic incentive for
the creation of works. But in determining the scope of the monopoly rights
granted to copyright owners, given the extreme length of the monopoly, we must
not lose sight of the true purpose of copyright - to promote the progress of
knowledge and learning - and we must all realize that too broad a monopoly will
impede rather than promote that progress on which this country was founded.
Initially the base of this country's economy was land; there was, after all, so
much of it. Then, the base of the economy became manufacturing, the industrial
age. Now, we have begun what is referred to as the information age. The way
information-based products are protected is through intellectual property,
including copyright. The economic importance of copyright has led to additional
rights for copyright owners, longer terms of copyright protection, and legal
protection for the technological locks put on works in digital media.
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http://www.k-state.edu/academicservices/intprop/webtutor/sld004.htm
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Top Five Reasons to File Copyright Registration For Your
Website
1)Registration is required before you can file a lawsuit.
2)Statutory damages up to $150,000 per infringement are only available if
copyright is registered.
3)Attorneys’ fees only available if copyright is registered.
Evidence.
Negotiating Leverage.
Detailed Reasons
The Importance of Copyright
by Nathan Hampton
With the advance of technology, our economy has become increasingly dependent on
the storage, transfer, and manipulation of information. As a result, issues
relating to copyright are taking on a greater importance. However, the same
technological advances have made violations of these protections much easier to
achieve, sometimes to the point of requiring only a trivial amount of effort.
These forces have created two competing viewpoints in our society. The first
viewpoint is typically associated with the creators and distributors of
copyrighted works, and holds that the relative simplicity of violating a
copyright requires strengthening of copyright laws and increasing the severity
of punishments for such violations. Opposed to this is the idea that
technological advances have made the concept of copyright protection obsolete,
necessitating the abolishment of the legal structures which enforce those
protections. The battle between these views has become prominent in recent
years, with both sides using increasingly heated rhetoric to advance their
viewpoint.
While the public debate regarding so-called "intellectual property" has become
increasingly polarized, there is a middle ground which can accommodate a variety
of competing interests. In these essays, we explore the nature of information,
the rationale for copyright, and five ways to ensure that copyright protection
continues to serve both individuals and society.
Matter, Energy, Property, and Information
In the fundamental order of the universe, there is matter and there is energy.
The homes in which we live, the clothing we wear, and the food we eat are made
of matter - "[s]omething that occupies space and displays the properties of
inertia and gravitation...." [1] Energy is not as easily perceived, but it is
also inextricably linked with our day-to-day existence. Electrical energy powers
lights, televisions, and other devices, and our bodies convert the food we eat
into the energy used to eat, drink, play, and work.
Despite the vast amount of matter and energy in the universe, that matter and
energy are finite resources. We can change the form of matter and energy and use
that matter or energy to serve our needs, but we cannot create or destroy matter
and energy. We can even convert matter to energy (and vice-versa), but the sum
amount of matter and energy in the universe remains the same.
Because matter and energy are finite resources, they are governed by what
economists call the Law of Scarcity. In layman's terms, the Law of Scarcity
states that there is not enough for everyone to have as much as they want of
everything, so we give up one scarce resource in exchange for another at various
times. To facilitate this basic principle, most human societies have developed a
system of allotting scarce resources amongst the populace, which we commonly
call "property."
The concept of property is simple: if I have a hammer, you do not have that
hammer. I cannot wave a magic wand and turn one hammer into two and let you have
one of them. If I give you my hammer, then for as long as you have it I cannot
drive nails with it. And if I own that hammer, then I have, by law, complete and
total control over whether or not I permit anyone else to drive nails with it.
It is entirely at my whim to decide how or even if it is used, because I have
physical control over it. If I surrender ownership of that hammer to you,
however, then I also give up any and all control over how and by whom that
hammer may be used.
Consider, now, the concept of information: a particular pattern of matter and/or
energy to which a sentient being assigns a meaning. Like energy, information is
intangible, though it may be recorded in a tangible form. Unlike energy,
however, information is infinite. If I have some bit of information - the sky is
blue, for example - I can share that information with you without giving up
anything that I have. In fact, I can share that information with everyone I meet
without diluting my own ability to use that information. As a result, the laws
of scarcity and property do not apply. They simply do not make sense, because
information is, by it's very nature, infinite. [2]
The Rationale for Copyright
The economic system in most Western nations is based primarily upon the Law of
Scarcity - that which is more scarce has a greater value than that which is less
scarce. Because information is non-scarce, the 'normal' laws of economics state
that it has no value, a statement which is patently false. Obviously, however,
information does have value. The value of information may be pragmatic or
aesthetic, but in all cases, the value produced by that information is maximized
when it is available to as many people as possible. In an ideal world,
therefore, information would be created and shared without cost.
Unfortunately, there are two problems which prevent this ideal from being a
reality. The inherent value information has for society as a whole is
significant, but the inherent value of information to a specific individual is
quite small. Because people are, by nature, self-interested, this means that
there is only minimal incentive to create information. Secondly, the production
of information consumes scarce resources. While some might produce information
solely for their personal satisfaction or out of a genuine sense of social
benefit, their ability to do so is limited both by laws of economics, which
require them to earn an income, and by laws of biology, which require them to
eat.
What is Copyright?
To address these issues, Western nations developed two systems to encourage the
creation of information: patents and copyrights. Patents, which we will not
address here, encourage the development of materials which have a pragmatic
benefit to society; the inventor is temporarily given virtually unlimited
authority to control who may and may not make use of her invention, in order
that he may exact economic rewards from people for its use as an incentive for
her to create the invention in the first place. In return, the invention enters
the public domain when that authority expires.
Copyrights are intended to provide an incentive for works which have an
aesthetic value - works which improve public discourse or enrich the culture. As
with patents, the creator of a work is, as an incentive, granted certain
exclusive rights for a limited period of time during which he may exact economic
rewards deriving from the creation of that work. Unlike patents, however,
copyrights grant only limited authority and provide numerous exceptions (see
below for more details).
The Current Status of Copyright
The writers of the U.S. Constitution were aware of both the social benefits of
information and the need to provide specific incentives to encourage its
production. As a result, Article I, Section 8 reads (in part) "The Congress
shall have power ... To promote the progress of science [3] and useful arts, by
securing for limited times to authors and inventors the exclusive right to their
respective writings and discoveries...." Congress has, over the years, exercised
this power a number of times. Provisions of current laws governing copyrights
grant the creator of a work the exclusive right
"To reproduce the work in copies or phonorecords; To prepare derivative works
based upon the work; To distribute copies or phonorecords of the work to the
public by sale or other transfer of ownership, or by rental, lease, or lending;
To perform the work publicly, in the case of literary, musical, dramatic, and
choreographic works, pantomimes, and motion pictures and other audiovisual
works; To display the copyrighted work publicly, in the case of literary,
musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic,
or sculptural works, including the individual images of a motion picture or
other audiovisual work; and In the case of sound recordings, to perform the work
publicly by means of a digital audio transmission." [4]
Copyright protection commences "from the time the work is created in fixed
form," and lasts for the life of the author plus seventy years or, for anonymous
works and works made for hire, the shorter of 95 years from publication or 120
years from creation. Registration and copyright notices are not required for
protection, but provide additional legal protection against violations of
copyright.
start ups:
From a small start-up it is now a substantial company (see
turnover) selling and products and licensing its technology. IP is a vital part
of the company strategy. It has an R & D programme expanding its product range,
which includes IP protection for new products. The company founder has now sold
his interest in the company and retired on the considerable income he received.
The company believes strongly that without the patent protection in its start-up
phase, there would have been many copiers and it would not have survived.