Subject: Re: The term "intellectual property" considered useful
From: "Stephen J. Turnbull" <turnbull@sk.tsukuba.ac.jp>
Date: Tue, 02 May 2006 17:18:04 +0900

>>>>> "rms" == Richard Stallman <rms@gnu.org> writes:

    rms> Copyright law and patent law are both part of our legal
    rms> system, but these two laws are so different, and their
    rms> effects so different as well, that the attempt to understand
    rms> them as species of the genus "intellectual property" will
    rms> lead to misunderstanding their practical effects and
    rms> misjudging the issues about them.

If the attempt to understand consists entirely of an attempt to
abstract and unify, of course you are correct.  However, your claim
goes much too far.

Consider Larry Rosen's comment:

    lr> My problem is with the term "intellectual property rights"
    lr> because that conflates many concepts that are more the in the
    lr> form of legal monopolies than "rights" as we find in the first
    lr> few amendments to the US Constitution.

But according to your standard this is a preferable statement, despite
its awkwardness:

    My problem is with the term "patent rights" because that conflates
    many concepts that are more the in the form of legal monopolies
    than "rights" as we find in the first few amendments to the US
    Constitution.

    My problem is with the term "copy rights" because that conflates
    many concepts that are more the in the form of legal monopolies
    than "rights" as we find in the first few amendments to the US
    Constitution.

    My problem is with the term "trademark rights" because that
    conflates many concepts that are more the in the form of legal
    monopolies than "rights" as we find in the first few amendments to
    the US Constitution.

    My problem is with the term "trade name rights" because that
    conflates many concepts that are more the in the form of legal
    monopolies than "rights" as we find in the first few amendments to
    the US Constitution.

    My problem is with the term "trade secret rights" because that
    conflates many concepts that are more the in the form of legal
    monopolies than "rights" as we find in the first few amendments to
    the US Constitution.

I think not, and I imagine that few reasonable persons would prefer
the latter statement, even edited into a saner and more concise form,
to the first.

The reason is that an explicit enumeration is equivalent to the
extension presented above.  But there is a big difference between the
division of a patent into "monopoly franchise" and "human right" and
the corresponding division for trademarks and trade names.  The
parallel statements ignore that.  The use of the abstraction
"intellectual property" allows for differences of degree between
patent and trade name, though qualitatively there is no question that
the monopoly franchise element is legally, economically, and ethically
a crucial component of both.


-- 
Graduate School of Systems and Information Engineering   University of Tsukuba
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        Economics of Information Communication and Computation Systems
          Experimental Economics, Microeconomic Theory, Game Theory