15.11.06

Intellectual Property or Exclusion Rights?

Posted in Legal, Terms at 10:58 am by Jens Hardings

I am sitting in a seminar dealing with promotion of access to knowledge, mainly through the use of open licenses that provide much more access then the minimum required by law. It has become more clear than ever yo me that the term “intellectual property” is very misleading.
Several arguments say that the term is basically propaganda, just as the term “piracy” is when applied to infringement to copyright and similar laws. But it should be enough to see how misleading it is to go and change it.
Several critics of the term suggest no alternative name for “Intellectual Property”, argumenting that there is no reason why you would have to group the several unconnected legal constructs (copyrights, patents, trademarks, industrial secrets) that form the group. I disagree. If you want to refer to all those legal constructs in a single name, you should just figure out what they have in common. It turns out all of them have something in common that is also very characteristic: they provide exclusion rights (whether they are justified or not). One single person gets the right to exclude everybody else to do or use something under certain circumstances.
Sure, it does not sound the same when you talk about limitations to intellectual property than about limitations on exclusion rights. In the first case, we would naturally feel compelled to reject any limitation on a protection and instead increase the protection as far as we can, right? if there is something in need of protection, why would we take it away? In the second case, we would feel inclined to limit the exclusion rights, because to exclude everybody from using or doing something requires strong and persuasive arguments. This is also the reason why the principles justifying exclusion right have been largely forgotten at WIPO and they now just try to increase the “protection” offered, no matter what the consequences or whether the initial goals are being met or even come closer.
I will stop using the term “Intellectual Property” wherever possible and replace it with the term “Exclusion Rights” which describes the grouped legal constructs more accurately.

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1 Comment »

  1. El Diablo en los Detalles | Propiedad Intelectual, Derechos de Autor: Dueños vs Creadores said,

    November 18, 2006 at 8:09 pm

    [...] [1] Jens tiene un artículo interesante en que propone reemplazar “Propiedad Intelectual” por “Derechos de Exclusividad” (lamentablemente Jens escribe ahora en inglés, a detrimento de sus lectores hispanohablantes). [...]

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