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Boyle’s Thoughts About Current Intellectual Property Policy

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The World Intellectual Property Organization, or WIPO, has built itself around the attempt to promote and harmonize intellectual property laws internationally, though the organization's actual responsibility within the UN system is significantly broader: "promoting creative intellectual activity and . . . facilitating the transfer of technology related to industrial property to the developing countries in order to accelerate economic, social and cultural development." WIPO is only 34 years old, but its history stretches back 120 years, to the treaties of Paris and Berne. During that period, WIPO and the international secretariats that were its precursors have done work of great value. But times have changed since 1883, and even since WIPO itself was founded in 1970; at the same time, some of the oldest lessons of intellectual property law have apparently been forgotten or ignored. WIPO has a uniquely influential role to play in setting innovation policy worldwide

But fundamental changes need to be made in both role and attitude if the organization is to serve its real goal - the promotion of innovation in science, technology and culture for the benefit of the peoples of the world.

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The grand term ‘intellectual property’ covers a lot of ground: the software that runs our lives, the movies we watch, the songs we listen to. But also the credit-scoring algorithms that determine the contours of our futures, the chemical structure and manufacturing processes for life-saving pharmaceutical drugs, even the golden arches of McDonald’s and terms such as ‘Google’. All are supposedly ‘intellectual property’. We are urged, whether by stern warnings on the packaging of our Blu-ray discs or by sonorous pronouncements from media company CEOs, to cease and desist from making unwanted, illegal or improper uses of such ‘property’, not to be ‘pirates’, to show the proper respect for the rights of those who own these things. But what kind of property is this? And why do we refer to such a menagerie with one inclusive term? The phrase ‘intellectual property’ was first used in a legal decision in 1845 and acquired formal heft in 1967 with the establishment of the World Intellectual Property Organization (WIPO), a specialised agency of the United Nations that represents and protects the commercial interests of holders of copyrights, patents, trademarks and trade secrets. The ubiquitous use of ‘intellectual property’ began in the digital era of production, reproduction and distribution of cultural and technical artifacts. As a new political economy appeared, so did a new commercial and legal rhetoric. ‘Intellectual property’, a central term in that new discourse, is a culturally damaging and easily weaponised notion. Its use should be resisted. There are four areas of US federal law linked under the rubric of ‘intellectual property’ that we ought to keep separate in our minds. In an essay published in The Politics of Law (2010), Keith Aoki defines each as follows. Copyright protects ‘original works such as books, music, sculpture, movies and aspects of computer programs’ that are ‘embodied or fixed in a tangible medium’. This protection does not require a work to be entirely novel and extends only to its ‘original aspects’, to ‘a particular expression … not the underlying ideas’, and not to ‘independently created or similar works’. Under the umbrella of copyright law are original, concrete expressions, not ideas – the same story and script idea can generate many distinct movies, for instance. Then there are patents, which cover ‘new and useful inventions, manufactures, compositions of matter and processes reduced to practice by inventors’ with ‘rigorous requirements of subject matter, novelty, utility and non-obviousness’. Patents protect realised inventions and ideas in gestation – eg, here is a new method for collecting rainwater, and this is a machine that does just that. Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.

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Apart from the normal presumption in favour of informed democratic participation in the formation of entire property regimes, I argued that there are particular reasons why this comparative political vacuum is particularly unfortunate (Paul Goldstein, 1991). Drawing on some prior work, I claimed that our intellectual property discourse has structural tendencies towards over-protection, rather than under protection. To combat that tendency, as well as to prevent the formation and rigidification of a set of rules crafted by and for the largest stakeholders, I argued that we need a politics of intellectual property. Using the environmental movement as an analogy, I pointed out that a successful political movement needed both a set of (popularisable) analytical tools and coalition built around the more general interests those tools revealed

Welfare economics and the idea of ecology showed that "the environment" literally disappeared as a concept in the analytical structure of private property claims, simplistic "cause and effect" science, and markets that do not force the internalisation of negative externalities. Similarly, I claimed the "public domain" is disappearing, both conceptually and literally, in an IP system built around the interests of the current stakeholders and the notion of the original author, around an over-deterministic practice of economic analysis and around a "free speech" community that is under-sensitized to the dangers of private censorship. In one very real sense, the environmental movement invented the environment so that farmers, consumers, hunters and birdwatchers could all discover themselves as environmentalists (David Lange, 1981). Perhaps we need to invent the public domain in order to call into being the coalition that might protect it. Is the environmental analogy of only rhetorical or strategic value, then? For my part, though I would be happy to acknowledge its imperfections, I would say that it also shows us some of the dangers inherent in the kind of strategies I have described. Right now, even under a purely instrumental economic analysis it is hard to argue that intellectual property is set at the appropriate level. Just as the idea of "activities internalising their full costs" galvanised and then began to dominate environmental discourse, the economic inadequacy of current intellectual property discourse has been emphasised by skeptics. But the attraction of the economic analysis conceals a danger. The problems of efficiency, of market oligopoly and of future innovation are certainly important ones, but they are not the only problems we face. Aldo Leopold expressed the point powerfully and presciently nearly fifty years ago in a passage entitled "Substitutes for a Land Ethic."

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In fact, recent organizing efforts around the Net, and around issues of cultural property, access to drugs, and copyright fair use have improved the discourse markedly

The sheer stupidity of the database treaty had a powerfully bracing effect, baseball or no baseball. Nevertheless, I think that the current situation warrants a precautionary alarm. It would be a shame for the fundamental property regime of the information economy to be constructed behind our backs. We need a politics—an analytically and rhetorically sophisticated political economy—of intellectual property, and we need it now.

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William D. Ruckelshaus, Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad, 15 Envtl. L. J. 455, 456 (1985).

Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995).

Paul Goldstein, Copyright, 38 J. Copyright Soc'y of the U.S.A. 109, 110 (1991) (emphasis added.)

David Lange, Recognizing the Public Domain, 44 Law and Contemp. Probs. 147 (1981).

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