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Today we are going to discuss the issue of Intellectual Property Rights. This is an important issue since our economy is moving towards higher levels of technology, which means, higher levels of know-how.  The question posed today is simple: should people be allowed to claim their creations of the mind as a property? In other words, are we OK with Patents and Copyrights? And the answer is: Intellectual Property rights are dumb. As a matter of fact, they are one of the stupidest, dumbest idea ever devised.

This question, translated to our Absolute Austro Libertarian point of view, would read: Are creations of the mind, ideas if you like, property? But we are getting ahead of ourselves. Before we go to our question, we need to answer their question.

This lesson summarizes the current state of affairs in this subject and borrows heavily from many thinkers. We particularly like Stephan Kinsella.

 

DEFINITIONS

What is Intellectual Property (IP)

This term is as ill-defined as it is vague. Most treaties and regulations don’t have a specific definition. They use examples such as, inventions, songs, symbols, images, etc.

However, they all agree that all these “properties” originate in human intelligence and creation…. whatever that it may mean.

Here, right here, is where the problem starts. We are discussing “property” which we  can’t even define properly. If we cannot identify such property specifically and with accuracy, how is it possible to develop a set of rules dealing with the “rights” of such property? The answer is, of course, it is not possible. 

You know you are in trouble when you can’t even define clearly what it is that you are talking about.

Now, this tiny problem has never stopped politicians and vested interests, of course. And so Intellectual Property is bombastically defined as something that somebody thought about or wrote somewhere or drew somehow but we don’t know exactly what but never mind because we will recognize it when we see it. Got it?

Clear as mud.

Let’s suspend disbelief for the duration of this lesson, and assume (try not to gag) that a meaningful, logical and accurate definition of Intellectual Property does exist.

 

What are Intellectual Property Rights (IPR)?

Now that we have a definition of IP, it follows that some sort of rights must be there. The whole point of having a property, i.e. something that you own, is that you get to exercise some right over this property that nobody else can.

OK. We are dealing with important stuff. Property. Therefore its rights must be clearly defined, right? Well… not exactly.

Some definitions are circular. IPR are the rights recognized to the owners of IP. Meaning???

Some definitions describe IPR in terms of processes. They are the assignment of rights through patents, copyrights and trademarks. Strange, a right is not a privilege. No higher authority can “assign” or “grant” a right because the very concept of “right” implies that no higher authority exist! But we digress… They define IPR as a legal process which defines which “rights” one may or may not have. In other words, it may be my idea, but other people will tell me what I may or may not be entitled to do with it.

Some definitions describe IPR in terms or monopoly. The right holder has the exclusive right to use this idea for a certain amount of time. Again, it is my idea but other people are telling me what I can or cannot do with it.

Some definitions of IPR are vague. IPR are legal rights aiming to protect the creations of the mind.  Of course, they never explain why such creations need protecting in first place, nor they explain what entitles them to protect them considering that these creations are not theirs to begin with.

And so on. The gist of all this mumbling is that it would seem that IPR are some sort of “rights” that some people are granted for their ideas.

Again, let’s suspend disbelief for this lesson and assume that IPR are properly and clearly defined.

 

Classes of IPR

Of course, as soon as you have something ill-defined, the next logical step is to make is as convoluted and overlapping as possible through classification.  These are some of the options in the IPR menu:

  • Patents: Exclusive rights granted to an inventor for a limited time in exchange for public disclosure.
  • Copyright: Exclusive rights given to the creator of an original creative, intellectual or artistic form for a limited time. Of course, this intellectual form is not an invention because clearly an invention is not intellectual in nature. Inventions “just happen” without our mind intervening!!!
  • Industrial Design Rights: Exclusive rights to a visual design of objects that are not purely utilitarian. You mean like a painting right? Oh… hold on… that would be Copyright….clear now?
  • Trademarks: Exclusive rights to a recognizable sign, design or expression, identifying a product or service. You mean like a painting for sale right?  Oh..no…that would be Industrial Design Rights right? Well… not really.. that falls under Copyright… got it?
  • Trade Secrets: Exclusive rights to a formula, practice, process, design, instrument, pattern or compilation of information which is not generally known or reasonably ascertainable by which a business can obtain an economic advantage over competitors or customers. Like a song belonging to a musical band right? Oh.. no… that’s Copyright… obviously….
  • Trade Dress: Exclusive rights to the visual appearance of a product or its packaging.  You mean Industrial Design Rights, right?
  • Miscellaneous or Specialized: Exclusive rights granted to a person or organization for intangibles such as circuit designs, plant breeders’ rights, supplementary protection certificates for pharmaceuticals and database rights. You mean everything else that does not fit in any of the previous categories and therefore we just create a one-bag-fits-all IPR. Just that way Romans did with the statue to the “unknown god”… you know… just in case we forgot something…

Yes, we need to suspend disbelief yet again. Remember, not our mess, theirs!

 

Morals, Ethics and Laws

  • Morals: notions of right and wrong that guide each person individually and subjectively in their daily lives. They are typically associated with a religious belief.
  • Ethics: norms of right and wrong shared by a group on the basis of mutual and usually reciprocal recognition.
  • Laws: norms about right and wrong formally issued by a political authority that are enforceable through a legal process based on a formal justice system.

Note: please see the Glossary if you are unfamiliar with certain words.

 Continue to Intellectual Property Rights Are Dumb - Part 2

 

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