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I have an Invention ... Now What?
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   Can property law principles be applied to IP?
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   Author  Topic: Can property law principles be applied to IP?  (Read 1932 times)
JimIvey
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Re: Can property law principles be applied to IP?
« Reply #5 on: May 2nd, 2007, 2:16pm »
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Thanks.  I have no idea where that might be in here.
 
Regards.
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James D. Ivey
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peiwen chen
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Re: Can property law principles be applied to IP?
« Reply #6 on: May 2nd, 2007, 9:16pm »
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Hi jim and tataboxinhibitor,
 
thank you for your informative comments.  
 
perhaps I simply have not researched and thought hard enough about the resemblance of intellectual property and property, however, I was wondering where does moral rights come in? in relation to intellectual property, is there not an element of moral rights associated with creativity and innovation? how does that translate to property principles? or does it not?
 
in terms of excludability, many physical objects can only be used by one person at a time. If one person wears a pair of shoes, no one else can wear them at the same time. however, with intellectual property, more than one person can use an idea - a poem, a mathematical formula, a tune, a letter - without reducing other people's use of the idea.  
 
Also, there appears to be distinguishing features between intellectual property and property. for example, patents have expiry dates - once this passes, the information or knowledge becomes common knowledge for public use. however, 'property' rights do not 'expire' as such, they can be abandoned but the right does not fade automatically/by itself.
I guess, what I'm really baffled about is, whether and how intellectual property can be properly characterised by property principles? in your respective opinions, is this the best legal mechanism to protect and promote innovation and creativity? I am partially persuaded by anti-ip arguments that that the rise and tightening of IP law in the recent years is the result of powerful and wealthy individuals wanting to monopolise and capitalise on publicly useful information.  
 
 
 
 
 
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JimIvey
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Re: Can property law principles be applied to IP?
« Reply #7 on: May 3rd, 2007, 10:40am »
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on May 2nd, 2007, 9:16pm, peiwen chen wrote:
perhaps I simply have not researched and thought hard enough about the resemblance of intellectual property and property, however, I was wondering where does moral rights come in? in relation to intellectual property, is there not an element of moral rights associated with creativity and innovation? how does that translate to property principles? or does it not?

Well, I'm not familiar with "moral rights" outside of IP.  The only place I've heard of it is in copyright law -- they include (I believe) the right to attribution and the exclusive right to destroy, or something like that.  For example, owning a Picasso doesn't give me the right to call it an Ivey or to destroy it.  Those rights are inalienable (not transferrable).
 
In patents, you absolutely must name the correct inventors.  That's analogous to the copyright right of attribution.
 
I'm not sure moral rights exist at all in real property.  I suppose in that way, IP is superior to real/personal property.
 
on May 2nd, 2007, 9:16pm, peiwen chen wrote:
in terms of excludability, many physical objects can only be used by one person at a time. If one person wears a pair of shoes, no one else can wear them at the same time. however, with intellectual property, more than one person can use an idea - a poem, a mathematical formula, a tune, a letter - without reducing other people's use of the idea.

So, if you're not home, I can walk in and try on any of your shoes you're not wearing at the time?  Property rights are not the right to priority of use but rather the right to exclude.  If you own a pair of shoes, you can prevent anyone else from wearing them ever -- and you never have to actually wear them yourself.  
 
on May 2nd, 2007, 9:16pm, peiwen chen wrote:
Also, there appears to be distinguishing features between intellectual property and property. for example, patents have expiry dates - once this passes, the information or knowledge becomes common knowledge for public use. however, 'property' rights do not 'expire' as such, they can be abandoned but the right does not fade automatically/by itself.

Property rights exist for one reason and one reason only -- to benefit the public at large.  Why do we have real property?  Because no one would develop land (invest in it) unless their exclusive access could be guaranteed.  Why do we have personal property?  No one would buy anything if they couldn't be assured of its availability and preservation.  Would you buy a diamond bracelet if your friend could just immediately thereafter say "Hey!  Thanks!" and walk off with it?  And, of course, land and things often escheat to the state.
 
IP has similar inducement.  But the end goal is to get the intellectual value into the hands of the public.  Hence, expiration (except for copyrights -- they're currently designed to concentration wealth and power into the hands of the few and super wealthy).
 
<more>
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James D. Ivey
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JimIvey
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Re: Can property law principles be applied to IP?
« Reply #8 on: May 3rd, 2007, 10:40am »
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on May 2nd, 2007, 9:16pm, peiwen chen wrote:
I guess, what I'm really baffled about is, whether and how intellectual property can be properly characterised by property principles? in your respective opinions, is this the best legal mechanism to protect and promote innovation and creativity? I am partially persuaded by anti-ip arguments that that the rise and tightening of IP law in the recent years is the result of powerful and wealthy individuals wanting to monopolise and capitalise on publicly useful information.

"Best"?  Don't know.  I'm not sure I whole-heartedly agree with the policies supporting real and personal property.  I think the goals of IP laws generally are admirable and I think they achieve them more or less efficiently -- perhaps better than any other mechanism tried so far.  
 
FWIW, much of the anti-patent rhetoric is coming from large, established companies that would prefer to compete on market power rather than patents.  One of the most vocal opponents of patents that I've seen is eBay.  Guess what, they don't own many but they like to use innovations of others and often are faced with threatened patent enforcement.  Who are the patent owners asserting rights?  Other big companies?  Nope, "patent trolls", i.e., individuals or small startups that tried to get their idea on the market and were bowled over by eBay and other large companies.  So, if you really favor the little guy over large companies, you should fight for strong patent rights.
 
There's one place where that analysis gets turned on its head -- open source software (OSS).  Software engineers write stuff on their spare time and give it away for free, more or less.  They fear the threat of being sued for patent infringement.
 
I understand the concern.  I'm a former software engineer myself.  And, I used to ride mountain bikes in the regional parks out here in the Bay Area.  Regional parks our here are huge preserves of the natural ecology -- for watershed reasons, I believe.  I'd be riding along a great trail and them come up to a fence.  What's this?!  The end of the park and the start of private real property!  How could they do this?  How can anyone own land?  That's like owning air and even life itself!  It must be free to all!  OSS developers feel the same way.
 
Yet, many of the OSS developers have day jobs at companies that rely on strong patent protection for their very existance.  So, patents are good for their employer but not good for themselves.  You can't eat your cake and have it too.
 
For what it's worth, I've never heard of a single patent ever being enforced against a single OSS developer.  I've heard of threats made against aggregators of OSS, but those threats went away.
 
And, for the mountain biker, what if all restrictions on land use went away?  My pristine rides in the hills and mountains would be cluttered with the obnoxious noise and smoke of 2-stroke offroad motorcycles and ATVs.
 
Regards.
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James D. Ivey
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Peiwen Chen
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Re: Can property law principles be applied to IP?
« Reply #9 on: May 5th, 2007, 2:59am »
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"Property rights exist for one reason and one reason only -- to benefit the public at large.  Why do we have real property?  Because no one would develop land (invest in it) unless their exclusive access could be guaranteed.  Why do we have personal property?  No one would buy anything if they couldn't be assured of its availability and preservation.  Would you buy a diamond bracelet if your friend could just immediately thereafter say "Hey!  Thanks!" and walk off with it?  And, of course, land and things often escheat to the state. "  
 
Given your analysis, if property rights exists for public benefit, IP law thus came into existence in response to the needs of moden society. It is law shaped by the goverment - via patents, trademarks, copyrights - to respond to needs of society - since technology and information systems are making up the greater of the world's wealth.  
 
If IP law exists for one reason only - to benefit the public - cant it also be argued that IP law exists to benefit individuals? given the basis of our law system is the western liberal theory, which centres around the individual? Isnt property and intellectual property about the feasibility of limitations on others' freedom of action?  
 
Also, looking at distinctions between IP and property. Isnt IP a negative right, whereas, property is a positive right? Real/personal property are not fruits of people's labor - rather they are 'created' rights, to exclude and generate incentives for people to invest their time and effort. In your example of a diamond bracelet - property rights protect the 'individual' - not so much the public at large. perhaps public benefit is generated because buyers get to keep their products, hence they will buy more, therefore sellers can sell more - so greater productivity and efficiency is generated overall. However, it is the individual who gets protected.
 
on the other hand, IP rights are negative rights - because in contrast to real/personal property, intellectual notions are the product of human creativity. therefore, ip laws give you no new freedom, but merely the ability to prevent others from soemthing they would otherwise be allowe to do. it gives one individual full control of a whole market. Of coure, arguably, most 'individuals' as such work for companies and employers, therefore, we're not so much speaking of the 'individual' human being. but perhpas, i can refer to it as one entity, one corporation - owns a patent, copyright, trademark. Is it arguable tha intellectual property is not about rights to control one's idea, but really, it is about your right to control someone else's copy of your idea? ordinarily, with property law, you cannot control another person's usage of real/personal property. for example, i can control my rights over my shoes, but if you take my shoes, i cannot control the way you wear it.  
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