Let’s Admit Intellectual Property is Nonsense

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Depending on your worldview Intellectual Property (IP) is either necessary or holds us back in terms of cultural (and economic ) development. IP applies to more than what you may think, it covers cartoons to medicine. What’s more, international trade has meant that the American approach to IP is spreading. This only favours the owners of existing IP while making it harder for new cultural works to exist. Thankfully this has been noticed by many thinkers and the conversation is changing.

The US Patent Act of 1870  and Copyright Act of 1976 treat patents and copyrights as kinds of property, therefore suggesting that intellectual property rights should be akin to tangible property rights: that is, ‘perpetual and exclusive’. But legal protections offered to intellectual property assets are utilitarian grants – they are neither perpetual nor exclusive. (Tangible property is said to be perpetual because it is yours till you dispose of it.) Their terms are limited and amenable to nonexclusive use. Patent law offers exceptions for experimental use, and prior-use rights for business methods; copyright law for fair use; trademark law for nominative use; trade secrets for reverse engineering and independent discovery.

Legal protections appropriate for tangible objects – as the drafters of the US Constitution were well aware – are a disaster in the realm of culture, which relies on a richly populated, open-for-borrowing-and-reuse public domain. It is here, where our culture is born and grows and is reproduced, that the term ‘intellectual property’ holds sway and does considerable mischief.



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