View source for What are the problems with the current Intellectual Property Rights?

== What are the problems with the current intellectual Property Rights ==

There are at least three glaring types of problems [http://www.n-a-n-o.com/ipr/extro2/extro2mk.html#Heading1]: <br>
 
'''Collision with Actual Property Rights''' <br>
As we have seen, copyrights and patents cannot be considered intrinsic, "natural" rights which people have possessed from time immemorial. On the contrary, they are very artificial constructs, erected by powerful governments for very particular political purposes. However, these artificial "rights" happen to collide head-on with more fundamental basic rights, namely actual property rights.<br>
If I have bought a machine, an appliance, a book, or a floppy disk that contains some piece of software, I now own it, and it has become my property, because I paid for it. I should have the freedom to do with it whatever I please, including using it for its intended purpose, storing it untouched in the cellar, reselling it, giving it to somebody else, throwing it away, destroying it, making copies if it, modifying it, or breaking it open to analyze its internal workings. With copyright protection, I am prevented from doing some of these things. Although I own the object I bought, I am being kept on a leash, with a remote power restraining my freedom over my justly acquired property. This situation is similar in absurdity as if a hammer bought in a hardware store were tied to the restriction that it would only be legal to use on a particular brand of nails, but illegal for any other brand or purpose. (That this is not common practice today just demonstrates that the hammer manufacturing industry was not very sophisticated with regard to lobbying the legislators !)<br>
With patents, it is even worse. Nobody is forced to buy hammers or books. You might be able to get along without them, and there is always the possibility of crafting your own. However, patents restrain supposedly free individuals precisely at their most important resource: the free use of their brain power. People are not allowed to harvest the fruits of their own creativity, intellectual efforts and inventions, if such intellectual products happen to have been patented previously by somebody else.<br>
Most people who try to solve problems, e.g. in order to design and engineer a product, do not do so by consulting a patent database, to see if somebody else might have already found a solution for their problem, which they would only need to license. Instead, most engineers will sit down, think about the problem, and develop a workable solution on their own. It is only later, in retrospect, when they are sued, that they find out that somebody has already come up with the same solution as well.<br>
If real property rights mean anything at all, then people should especially have the right to use the very body and brain they own, to solve problems, create products, and subsequently sell them, unrestrained by monopoly powers which some other entities are trying to exercise.<br>
Many simultaneously thinking humans exist on this planet. It should come as no surprise that the same ideas will present themselves to different minds, sometimes even almost at the same time. That one of these persons can obtain a license to block all other co-inventors from using their own conclusions, just by virtue of having gone to the patent office one day earlier, contradicts the principle "freedom of thought" directly, and is outrageous.<br>
 

'''Creation of Artificial Scarcity is Obviously Unreasonable'''<br>
Actual property rights are the means by which scarce resources are being managed, such that a compromise can be worked out which is as optimal as possible, given the existing constraints. This applies to things such as usage of land and to the distribution of tangible goods, which are complicated to manufacture and thus have a non-zero price, and are not as freely available as the air that we breath. <br>
However, the current system of so-called "Intellectual Property Rights" tries to enforce artificial barriers upon the free flow and use of information, thus creating scarcity where it is most damaging to all of humanity and where a rich bounty of wealth could exist instead. These barriers can only be upheld by a rigorous legal system, under application of draconian enforcement measures. We all know of the difficulty of preventing the free flow of information, and we all have heard the cries for help from mighty publishing empires, alleging that "pirates" are supposedly stealing large chunks of their "rightfully deserved" revenues. The difficulty of enforcing these "rights" shows how unnatural and artificial they are.<br>
The most obvious argument against upholding such barriers is that transfer of information can not be called theft, as is often loudly proclaimed. If somebody copies a piece of information or idea that I hold, then I have not lost it. I still have it, I am able to derive the same utility from it, and in addition, somebody else is able to now benefit from it too. As the cost of copying is so low and still going down, it would be foolish to prohibit the obvious ease of information transfer. It is essentially suicidal to establish barriers here, instead of utilizing the great technological capabilities to the fullest extent. We heard of the requirement that "spoilers" be built into Digital Audio Tape (DAT) machines. This is just perverse. The cost of copying is so low, that the dispersal of intellectual products can be considered to be very close to free, and creating an artificial scarcity here is a very bad idea.<br>
Note that the creation of intellectual products does of course carry a cost, which is often significant. Ways to recuperate such an investment will be addressed later. However, once the information has been created, the widest possible use should be encouraged, not prohibited. Every intellectual product that reaches only half its potential audience has been half wasted.
As a side remark, one can observe that artificial scarcity has been often created by vested interest groups before, in other contexts. This does not make it any better, of course. The business of setting up arbitrary, inconveniencing, and artificial barriers is an activity that invites many parasites, and many governments have been rather good at such things. It has happened more than once in history, that a city-state was founded right at a strategic bottle-neck, such as a naturally destined river-crossing, and has set up an enforced system to collect a bridge toll, without which humanity arguably would have been better off. Control of import and export, and slapping toll on goods transferred over national borders, is another favorite activity of governments, no doubt justifiable by various "worthy" political pseudo reasons.<br>
Something that has not happened yet, but has been proposed occasionally, is that programmers ought to be licensed to be able to practice their trade. Their product is of such importance, that it can not possibly be left to the hands of hobbyists. Just think of the safety implications and the horrible accidents that could happen due to software malfunctioning in a flight control system or nuclear power plant! That the possibility of forcibly restricting programming activities to only a government-licensed elite is not entirely absurd, is demonstrated by the fact that at least two job categories already require such licenses, namely the medical and law professions. It might well be possible to recruit many vocal proponents who will argue how the higher salaries available for this elite will induce more people to become qualified and licensed programmers, thus benefiting society enormously. As we see from this (still) hypothetical and absurd example, by creating artificial scarcity where none would be necessary, more harm can be done than good.<br>
 

'''The real "Job" of Government''' <br>
One key problem is the wide-spread perception that governments should proactively do "good" and "useful" things, to benefit society. This is very popular, and politicians try to always cast whatever they happen to be doing in this light. So it has been argued that governments should pursue policies which foster the economic strength and competitiveness of their nation. This is usually accomplished by enacting fairly arbitrary decisions on which activities to encourage and which to prohibit, instead of just having faith that a free market economy will flourish on its own, without government control.<br>
Unfortunately, almost all government interventions have undesired side-effects, which are often difficult to foresee, and often end up being worse than the "problem" that was supposed to be fixed in the first place.
Regarding "Intellectual Property Rights", the usual justification for promoting this system is that companies supposedly need a specially protected time span during which they can recuperate their investment for developing a new product. Thus, with this system, companies ought to have an incentive to innovate more than they would otherwise. However, is this really true?
An analysis ought to have been made of the trade-off inherent in such legislation. As copyrights and patent protection involve such a severe restriction of public freedom, they are only justifiable if it can be conclusively proven that instantiating such drastic measures does more good than harm. Otherwise, even if the effect turns out to be just neutral and not damaging, one might as well live without all the bureaucracy. The proof that this legislation is beneficial to the general public has not yet been provided. It is certainly quite difficult to perform such an analysis, as we have no experimental control available, i.e. a technology-intense society without any such restrictions. There have been some studies on this question, e.g. [Man86], which have found that there is a very mixed reception of patents in the industry.<br>
There do however exist some vocal companies and their lawyers, which proclaim that copyrights and patents are absolutely essential for their business. However, as the government's purpose is not to serve special interest groups, it ought to evaluate whether all of the public will be better off on the whole, not just certain industries or companies.
A common claim advanced to promote "Intellectual Property Rights" is the necessity to encourage creativity. This is also given as the justification in the constitution of the USA. Quite possibly, once upon a time, this might have made sense, in a time when technological progress was much slower, and might have needed stimulation. However nowadays, progress is so rapid that it does not need further encouragement by such restrictive measures.
On the contrary, now the really negative side-effects are kicking in, with the effect of slowing down innovation and progress. As modern technologies are so densely interlocked and mutually co-dependent, it is now often the case that progress in entire fields can be blocked by crucially important patents. The duration time of about twenty years is now much too long, because many technology generations are becoming obsolete within a few years. Many lawsuits are precipitating leading to a sour and aggressive climate.<br>
Nowhere is this more apparent than in the field of software. Everybody has heard of the important public key encryption patents that are locked up in a scandal and several law suits, blocking progress for everybody. These patents resulted from tax payer funded research performed at universities, and now the public is not allowed to use what they have paid for. I consider this to be quite outrageous. Software is an especially rapid-moving field of technology, and so the clash with something as inadequate as the patent system is particularly noticeable. Until the early 1980s, software patents essentially did not exist, and the software industry did just fine in the preceding two decades, and did not seem to need any encouragement at all. It grew wildly on its own. This quite possibly is one of the best illustrations of how an industry could once upon a time get along fine without patents. Now that they have been introduced, there is a big mess.<br>
There is one organization, the League for Programming Freedom [LPF], which advocates abolishing software patents and over-broad extension of copyright to interfaces. These legal developments are endangering the freedom of programmers to write the best programs they know how, entangling them in weird legal restrictions instead. I encourage people to join the LPF. Without more coordinated grass roots activity, programmers will increasingly fall victim to the lawyers, who are pushing their cause while making a living, whereas most programmers have to defend their freedom in their spare time.<br>
So what is the job of the government supposed to be? Encouraging specific outcomes, such as promoting economic strength and thereby installing incentives to increase creativity through "Intellectual Property Rights" is very prone to backfiring. Manipulating the economy is especially problematic as nobody has a clue nor the necessary data to demonstrate clearly what the effects of such measures will be, and whether they will be beneficial to the public, all things considered. The issues of fostering a healthy economy are so complex that it is quite preposterous to claim that such severely freedom-restricting measures as patents, for example, would be actually increasing wealth. On the contrary, such measures sound rather absurd and the negative side effects are very visible.<br>
Instead, the real job of the government should be to merely provide a minimalist framework of justice, within which the economy can unfold freely. Nothing more is needed. Technological progress is such a lucrative topic to pursue, it will develop on its own, unrestricted. Creative new ways to make money are and will be invented again, every time when entirely new technologies have changed the landscape, and have displaced old and outdated technologies and business models. As we have seen, current "Intellectual Property Rights" are very unjust and unfair, directly interfering with real property rights. If the government wants to do something beneficial, it should remove this injustice completely. However, because such a reasonable action cannot be expected to occur automatically in a government driven by special interest lobbying by lawyers, this needs the action and broad support of the public, to bring about the change for a better system.
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