Is “Intellectual Property” an Oxymoron?or

Why those who “have” fight to keep control

The United States and the United Kingdom are the only two nations who consistently receive net balance of payment benefits from intellectual property, and are amongst the chief supporters of intellectual property systems.

Prepared by: Ann White Art Institute of Atlanta Winter 2005

Overview

 Intellectual Property Definition Brief History of IP in the USA and Global Implications Copyright Definitions What is Fair Use? Pros and Cons Why IP doesn’t work Alternative Methods Conclusion Discussion

What is Intellectual Property

Product of the mind or the intellect: inventions, literary and artistic works, and symbols, names, images, and designs used in commerce"

Once established, such entitlements are generally treated as equivalent to tangible property, and may be enforced as such by the courts.

History of IP in the USA - Global Implications

Thomas Jefferson believed published information is intrinsically free and that in fact this is the whole point of such exclusive rights -- to publish, to provide information to the public.

What is Copyright?

Copyright is a set of exclusive rights granted by government for a limited time to regulate the use of a particular form, way or manner in which an idea or information is expressed.

It is not designed or intended to cover the actual idea, concepts, facts, styles or techniques which may be embodied in or represented by the copyright work.

Please refer to your handouts

Dissemination of Knowledge = Attempt at Control

Attempt at Control = Greater Confusion

Greater Confusion = Collaberation

Consider the Correlations

Fair Use the 4 Components

the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work; the amount and substantiality of the portion used in

relation to the copyrighted work as a whole; and the effect of the use upon the potential market for

or value of the copyrighted work.

Pros and Cons of IP

PROS

Incentives like recognition and material rewards

Encourages innovation and creativity

Improves quality of life

CONS

Creates “ temporary” monopoly

Disallows humanitarian use

Slows down the intellectual sharing of knowledge

Ambiguous Definitions

Public Good is not served as IP intended it to be.

Monopolies of Knowledge

Intellectual property rights actually impede innovation

• 1. monopoly can charge far higher prices than they could if there were competition. In the process, ideas are disseminated and used less than they would be otherwise.

• 2. .Increases the price of research. Legal issues cost money.

• 3. .Monopolists may have much less incentive to innovate than they would if they had to compete. In fact, a monopolist, once established, may be hard to dislodge, as Microsoft has so amply demonstrated.

• 4. Monopoly can use its market power to squelch competitors, as Microsoft so amply demonstrated in the case of the Netscape Web browser. Such abuses of market power discourage innovation.

Ambiguity

The creation of any product requires many ideas, and sorting out their relative contribution to the outcome – let alone which ones are really new – can be nearly impossible.

Derivative work is built on previous work to create a new product that adds value by structuring previous information and/or adding new ideas.

Except from the most simple products,all human creations are in some way derivedfrom previous ones.

The Misleading Premise of IP

By granting authors exclusive rights, the public receives the benefit of literature and music and other creative works that might not otherwise be created or disseminated.

FALSE statement: creation happens whether someone is paid for it or not.

Wheel

Fear Factors and Information Availability:

Triggers fears in those who profit by controlled information environments.

Enhanced abilities to collaborate suggest expanded means to conspire.

Potent tools for developing multimedia objects can threaten those whose interests reside in the stability of individual media assets.

IP and Social Capital

Meaningful communication requires at least some sharing context between the parties to such exchange.

Networks of individual citizens enhance community productivity and cohesion

Self-serving exclusive hierarchical patronage systems (monopolies) operate at cross purposes to societal interests are negative social capital and burdens on society

The ease of transferring digital documents facilitates learning, community growth, and personal enjoyment, yet terrifies those with established stakes in controlling the distribution of those valued goods.

Individual Idea

Greater Ideas

Shared Ideas

Mutual Benefit and Growth

Idea Sharing and Social Capital

Open Source and Licensing Products of enormous immediate commercial

value can and have be produced without intellectual property protection. Open Source Technologies

"Commons-based peer production" is meant to describe a new model of economic production, different from both markets and firms, in which the creative energy of large numbers of people gets coordinated into large, meaningful projects, largely without financial compensation. examples include Linux and Wikipedia.

Creative Commons Licensing Creative Commons is a nonprofit organization that

offers a flexible copyright for creative work.

Balance of Private and Public Good

The Internet has become a zone of creativity and rapid development, with positive effects even in the non-wired world.

Customer access to a planetary network of information has empowered critical purchasing, while expanding markets. The Internet has yielded new markets, means of distribution, demand, and participation. User literacy in using these technologies (how to surf the Web, send and receive email, etc.) have expanded, as they have been (largely) freely available

Knowledge is Exponential

How does the control of knowledge benefit the many?

Conclusion

Society needs to look further out than today's crisis, try to understand the nature of the changes taking place, and determine as best it can what their consequences might be, what it would wish them to be, and how it might steer toward fulfilling the promise and avoiding the perils.

New revenue models need to be created to maintain the balance between the private and public sectors.

Public Domain must be protected for societal advances

Discussion Questions to Consider

Will IP result in the loss of Public Domain? “The Shrinking Public Domain” Interview with Lawrence Lessig,

10/13/2005, Public Radio http://marketplace.publicradio.org/shows/2005/10/13/PM200510136.html

Who archives and how? Far reaching theory: Could the alphabet be copyrighted? Where is the Public Domain? Is no revenue an option? Are there other options? What is considered added value in derivative works?

Who determines added value?

Resources

Association of Research Libraries, Copyright Web Site, http://www.arl.org/info/frn/copy/copytoc.html

Federal Relations E-News Copyright Updates, http://www.arl.org/info/frn/copy/frncopy.html

American Library Association, Copyright Web Site, http://www.ala.org/washoff/copyright.html

Stanford University Libraries, "Copyright & Fair Use," http://fairuse.stanford.edu/

U.S. Copyright Office, "Copyright Law of the United States of America," http://www.copyright.gov/title17/

World Intellectual Property Organization, http://www.wipo.int/portal/index.html.en

Open Source Initiative http://www.opensource.org/

Henry M. Gladney, Volume 5 Number 12 ISSN 1082-9873 D-Lib Magazine December 1999, ISSN 1082-9873

“Digital Dilemma: Intellectual PropertySynopsis and Views on the Study by the National Academies' Committee

on Intellectual Property Rights and the Emerging Information Infrastructure”

http://www.dlib.org/dlib/december99/12gladney.html#Platinum Wikipedia http://en.wikipedia.org/wiki/Intellectual_property

“Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights” http://www.uspto.gov/web/offices/com/doc/ipnii/execsum.html

Resources

Resources

Digital Millenium Copyright Act of 1998 http://www.arl.org/info/frn/copy/dmca.html

James Boyle, "The Second Enclosure Movement and the Construction of the Public Domain", http://www.law.duke.edu/pd/papers/boyle.pdf

Creative Commons http://creativecommons.org/

Lawerence Lessig, “Free Culture, How Big Media Uses Technology and Law to Lock Down and Control Creativity”, ISBN 159420068 , March 2004, Penguin Press http://www.free-culture.cc/freeculture.pdf

“ The Shrinking Public Domain” Interview with Lawrence Lessig - Oct 13, 2005, Public Radio http://marketplace.publicradio.org/shows/2005/10/13/PM200510136.html