I'm against patents because they seem incredibly anti-competitive. Right now in any tech field its impossible to compete agents companies that have a war chest of vague patents and money to throw in the courtroom to squash competitors.
This has actually become a sort of MAD warfare now.
You dig into an area like, say, mobile phones. There are companies out there with patents on virtually every idea that has anything to do with mobiles. All of these companies joyously violate each others patents, freely and without fear, because if anyone decided to sue they would have all those violated patents shoved in their face as well. One of the biggest motivators behind the recent HP buyout of Palm was their huge IP warchest. Anyone taking on companies like Apple need such a stash of patents so that they can run roughshod over other peoples ideas.
It can hurt the little guy when big companies choose to shut them down with such methods. Frankly, most of these are fields with such huge barriers to entry that the few cases where that happen are exceptions to the rule; few companies last long enough to become threats, and most of those are too valuable as going concerns and are bought up.
As for IP itself, it's worth a quick primer on the main three sorts. There are debates and discussions to be had about all three.
1) Copyright.
Largely the rights to copy, distribute and adapt an original work. The lines of copyright are somewhat blurred and can depend on where you live (although there is some standardisation), with the main blurry areas being fair use/fair dealing exemptions and derivative works. The first of these are a set of areas where copyright may be violated. There is no bright line and what guidelines exist vary from place to place. I recommend finding a good legal guide for your locality. The latter are works based on previous works, be they in copyright or not. The line between a new work and a violation of the original copyright (or a copy of a public domain work, and so an uncopyrightable work) is a bit weird, and depends a lot on there being 'creativity' involved in the production.
Copyright has a time limitation built in, after which the work reverts to the public domain. These limitations have been expanded vastly in recent decades. This is a major area of debate.
Any work is covered by copyright as soon as it is in a tangible form (in most nations; there are 20 that still require registration while most offer registration as an optional extra). This means as soon as the idea is written down or otherwise recorded it is covered. Defending the copyright normally requires some evidence of that original fixation, which is why usually public publication is used as the initial copyright evidence. Most 'poor man copyright' methods (such as mailing yourself a copy) are absolute nonsense because they can be so easily gamed.
Copyright doesn't have to be defended to be maintained; a copyright holder may choose not to prosecute violation without giving up the right to do so in the future or in other cases. This is important later.
2) Patent.
The rights to the sole exploitation of a new discovery or invention for a period of time in return for publication of that invention or discovery. The time period varies depending on the field and type of patent, but the standard is usually around 20 years.
The rational of such a period is to allow the patent filer to enter the marketplace and have some time trading without competition before everyone can use their idea. In the past, 20 years would have allowed for maybe half the time actually at market, as the majority of ideas required a sizeable initial investment of time and capital (which takes time itself). The time unopposed is there to compensate the initial investment made into R&D behind the discovery.
It's easy to see areas where this breaks. Software patents (a truly messy area that also involves copyrights) easily outlast the profitable lifetime of the software, but still prevent others from using and building on the idea. Because patents protect the idea, not the work itself, even writing a program yourself that does the same thing as the original is a patent violation. This has the potential to be extremely chilling.
Again, patents don't have to be enforced to be enforceable. You can ignore a violation all you want and then sue the pants off someone else for the exact same thing without the original violation mattering.
3) Trademark.
A trademark is a symbol, word, phrase, name, logo or whatever that is entirely entwined with a company. The symbol identifies the company and distinguishes it from others. As such, the company has an interest in protecting that symbol from abuse by others.
For example, lets say I have a logo for my company and I'm very successful at making and selling children's toys and games. My logo becomes well known and recognisable. Then someone uses the same logo for something I really don't want associated with my brand, like sex toys or guns. I'd have the right to sue them for trademark infringement because they are diluting my brand.
Trademarks can be registered, but don't have to be. If they aren't then it needs to be shown that the trademark is recognised and associated with the brand within the area that violated occurred. If I make my toys in London and someone sets up a gun shop in Texas, odds are my logo wouldn't be protected unless I had registered it in all relevant areas.
Trademarks do give you a lot of protection, although there are still exemptions. The main ones are using trademarks to identify the trademark holder or when the trademark itself has a meaning and using it for that meaning. There are lots of phrases that are also trademarks - more than anyone could sensibly be expected to know - but you aren't infringing the trademarks so long as you are using the phrases for their actual meaning and not as a trademark yourself.
A major point about trademarks is that they don't expire
unless they are no longer defended. If I decide to ignore other people using my trademark then I have no right to turn around and sue other people for using it in the future. It is considered abandoned. Similarly not using a trademark for a few years will mean it is no longer defended.
This is where a lot of Disney cases come from. Disney consider Mickey Mouse and a range of their other icons as trademarks. This gives them a deep protection from brand dilution. However, they can't not enforce a single case. The absolute most lax they are allowed to be with infringer is to license the use of the trademark and then monitor the products being produced for quality. If they don't then they have abandoned the trademark and anyone can play with it as much as they like. This goes for kids websites as much as Chinese knockoffs.
My personal views;
I think IP laws are needed, but there is definitely room for work and debate.
The purpose of IP law should always be to
maximise creativity, by incentivising novel work while not blocking creative expansions on that work. This means giving the creator a sufficient measure of control to profit but not stifle future works.
Copyright allows for creators to profit from their creations. Note that even Creative Commons licenses, which allow for keeping a measure of control over a work while still releasing it into the wild, allow people enough control to still profit and are dependant on copyright law. The same goes for GPL and similar software licenses (themselves a huge and ugly nest not worth digging into). However, the current setup of near perpetual copyright coverage is simply foolish. I'd much rather see a limited period of copyright (say, 20 years) with required filing for expansion after that period. Allow for four expansions of five years each for a total of another twenty years. Very few works are actually profitable after that initial period, and fewer still after the forty years. Further, such distant rewards (which so few earn) are very little incentive to artists. Few write a novel in the hope that their grand kids can be earning money from it
fifty seventy years after their death, but that is the current copyright time limit. In the US. I strongly recommend Breyer's dissent in
Eldred v. Ashcroft for a powerful examination of that particular issue.
Patents definitely need a lot of thought in their granting (particularly the period) but are essential to encourage expensive R&D. There are plenty of problems, but I think there are two ways this can be made easier.
1) Require a lot more to go into getting a patent, including a plan for exploitation of the invention. This is then used to determine the period of the patent.
2) Require a patent to be re-registered if sold, with a revised plan for exploitation. At this point the period may be revised downwards.
The point of 2 is simple. A lot of companies buy patents simply to troll for violations by others. If they have no plan for exploitation then the patent office should be able to reduce their patent holding period. Similarly, a smaller company without the ability to exploit a costly patent in a timely manner may require a full 20 year period. If the patent is then bought by a multinational with massive manufacturing capability, they may only need 10 years to have the same effect. Leaving them the full 20 years could have a more chilling effect than the required incentive.
I'm not getting into gene patents right now.
Trademarks can be nastily destructive, but also are vital to companies for defending their brand. They pretty much require a company to be a dick, but at the same time without them the company loses control of it's image. This is a sticky problem and I'm not entirely sure of the best way out.
Author
Topic: (Intellectual Property) How do you convince someone? (Read 5818 times)