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The emergence of
a patent market At the same time, the Minister for Science & Innovation, Lord Sainsbury, specifically rejected any move towards the US model. Of course, the term ‘computer-related inventions’ is broad enough to include hardware but the real issue here is the software and what legal protections it should have. The difference between the US model and the emerging British and European model in relation to software patents is crucial. In the USA, software can be patented in its own right provided it enables some new and innovative process. However, you will not be able to patent software in the UK or Europe unless that software is a part of an invention to which it makes a technical contribution, e.g. an engine management system for a car. The stakes in this game are very high and, consequently, there are passionate arguments all round. However, I suspect the emergence of the rather more conservative European model will be a relief to people like this guy. My own view is that software (i.e. lines
of code) should properly be protected by copyright regardless of
how useful, valuable or innovative it may be. That said, I am not
at all phased by this emergence of a market in legal protections.
Let the market decide which models flourish and which ones whither
away. Printing, profits
and patents Therein probably lies the secret of successful investment. Look not at the developments but to the accessories to the developments. A lot of investors would have been far better off had they sunk their grubstakes into Canadian and Finnish paper companies rather than absurdly hopeful dot.coms. Similarly, it is not the cheap printers that make the money, it is the accessories to the cheap printers, namely ink cartridges the production and sale of which is not just big business but very big business. That is why the producers have been trying to protect their revenues by aggressively enforcing their patent rights. Sometimes a little too aggressively for my liking, which is why the recent decision of the Tokyo District Court is interesting. The case involves the Canon company who invoked their patent rights to sue another company who were refilling Canon printer cartridges with toner and ink, thus depriving Canon of lots of sales of new cartridges. The Court decided that refilling cartridges is not a patent infringement. In the USA, Lexmark has suffered a similar setback. The chief characteristic of ‘gold rushes’
is that everybody tries to grab as much of the available gold as
they can before the seams run dry. In the ensuing chaos, there is
often confusion as to who is entitled to what. But commercial necessity
usually leads to a shaking out and calming down process. That is
probably what is happening here. The celebrity formerly
known as... Nonetheless there is an interesting resonance between my article about the gradual shift towards the trade-marking of images and this article from the BBC website about celebrities who are increasingly turning themselves into brands to succeed in business or attract lucrative advertising deals. Of course, celebrity endorsement is not new. It is something that traders have cherished as a marketing tool for some time. But what is more recent is the emphasis on the celebrity image as a ‘brand’ that may be eligible for legal protection. The BBC article goes on to quote one of these marketing Gurus who offers up some advice to “ordinary people” on how to develop their own brand. For me, this is the wrong way around. For instances, I could seek to Trade Mark the name ‘David Carr’ and then proceed to offer it to all sorts of manufacturers as an endorsement. I seriously doubt that I would have many takers because, frankly, who gives a tinker’s cuss about me? I am merely one of the Great Unwashed. However, I expect that someone like, say, Brad Pitt would enjoy a great deal more success with such a project. Therein lies the point about Trade Mark in particular and brands in general: they are not, of themselves, value. They merely represent the value that the celebrity has built up with the public. I daresay that the UK Patent Office is
stuffed full of duly granted patents and Trade Marks which are never
going to make their owners a bean. Until they are offering something
that people want to buy then, frankly, who gives a tinker’s cuss? He got the NYPD blues
Due to his being a member of the Academy of Motion Picture Arts & Sciences, Mr. Caridi was given pre-release copies (or “screeners”) of two Oscar-nominated films for the purpose of judging their quality in the light of the prospective award. Pre-release prints of movies are usually held in circumstances of the strictest security because, if they fall into the hands of pirates, the financial consequences for the producers can be disastrous. Hence they are only ever passed onto people who promise to guard them with their lives. However, instead of keeping the screeners only for the purpose of his own assessment, he passed them onto a friend who promptly made illegal copies of both films and distributed them over the internet. A watermark in the print meant that the copies were traced back to Mr. Caridi who has now been sued by Warner Bros who have obtained a default judgement against him for over $300,000 and the pirate friend has been convicted under the Digital Millenium Copyright Act. Although it is the law of copyright that has been used to secure both the conviction and the judgement, the case against Mr. Caridi could just as well be judged by the law of contract and the law of trust. Mr. Caridi flagrantly breached the terms of the contract under which he received the screeners and he was also put in the position of a trustee, which position he thoroughly abused. Copyright is seldom considered in the same
breath as the law of contract but this case reminds us that the
former is a mere extrapolation of the latter. Me too, but not too
much Due to his being a member of the Academy of Motion Picture Arts & Sciences, Mr. Caridi was given pre-release copies (or “screeners”) of two Oscar-nominated films for the purpose of judging their quality in the light of the prospective award. Pre-release prints of movies are usually held in circumstances of the strictest security because, if they fall into the hands of pirates, the financial consequences for the producers can be disastrous. Hence they are only ever passed onto people who promise to guard them with their lives. However, instead of keeping the screeners only for the purpose of his own assessment, he passed them onto a friend who promptly made illegal copies of both films and distributed them over the internet. A watermark in the print meant that the copies were traced back to Mr. Caridi who has now been sued by Warner Bros who have obtained a default judgement against him for over $300,000 and the pirate friend has been convicted under the Digital Millenium Copyright Act. Although it is the law of copyright that has been used to secure both the conviction and the judgement, the case against Mr. Caridi could just as well be judged by the law of contract and the law of trust. Mr. Caridi flagrantly breached the terms of the contract under which he received the screeners and he was also put in the position of a trustee, which position he thoroughly abused. Copyright is seldom considered in the same
breath as the law of contract but this case reminds us that the
former is a mere extrapolation of the latter. Riffs for free
The series (shown over several weeks) selects recording artists from the 50’s, 60’s, 70’s, 80’s and 90’s, and reviews their work. In addition, current day luminaries from the music world discuss the life and work of the artist and the extent of their cultural influence. The viewers at home then get to vote on the top 10 artists of each decade. Earlier this evening was the turn of the 1950’s and among the artists being appraised was Chuck Berry. All the luminaries agreed that he was very influential indeed on later artists and one of them in particular, claimed that Chuck Berry’s ‘guitar riffs’ could later be heard again in the music of the hugely popular British band, Status Quo. If that is true (and I am prepared to take said luminaries' word for it) then the young lads who would later find fame and fortune as Status Quo, probably spent a lot of youth listening to Chuck Berry records, loving them, and deciding that they wanted to be like that. Being unable to simply copy the songs did not stop them from being influenced by the man who wrote and played them. They simply played their own music in the style and manner of their muse and managed to carve out glittering careers by doing so. If there was no copyright then perhaps
Mr. Berry would still have treated the world to his flamboyant talent
and maybe the young one-day-to-be lads of Status Quo would still
have been inspired by it. But how far would they have got by just
copying Mr. Berry instead of being inspired by him to produce their
own music? Fine China
One of the protagonists, in particular, was of the view that the whole edifice of IP rights was in serious long-term trouble because of one thing: China. The Chinese, he held, would never extend legal recognition to IP rights, despite all the attempts from the West to get them to do so. Furthermore, he added, this was because the Chinese had a ‘cultural aversion’ to the very concept of protecting ideas and, as China grows in both wealth and influence, it will gradually become an ever-wider IP ‘black hole’ that will force the rest of the world to abandon the whole idea of IP rights. At the time, there was some weighty evidence to support this view. Historically, it has been notoriously difficult for Western companies to get their IP rights enforced in China which has been a major source of counterfeit goods. So I have to have a quiet chuckle to myself when I read about Google’s Hong-Kong based news service being threatened with legal action for copyright infringement by local media sources. Now Hong Kong has a British legal tradition,
but it still Chinese and I can see no sign whatsoever of any ‘cultural
aversion’. Furthermore, China itself has now enshrined the principle
of property rights into its constitution and, as their economy continues
to motor ahead, so will the level of Chinese innovation and so,
I predict, will the Chinese taste for IP rights. Who we are, who we
be Clearly this is a serious matter. Identity thieves often plunder the assets of their unsuspecting victims or use their forged documents to commit fraud or obtain goods or services by deception. But what about an absence of any criminal intent? What if someone decides to adopt the name ‘David Carr’ and goes around impersonating me? What if he also adopts my mannerisms, my dress sense, my speech patterns and begins following a similar career or business path? Is that a crime? Well, under English law, the answer is no. It is perfectly legal to impersonate somebody else provided the impersonator takes care not to actually forge any documents or use my name to further any deception or other criminal purpose. But what if my impersonator takes things even further and undergoes plastic surgery so that he can even look like me? No law against that either. But even though my deranged doppelganger is within the bounds of the law, most people would tend to regard his actions as creepy at best and downright twisted at worst. After all, what’s wrong with his own persona that he has to dress himself up in mine? The very term ‘identity theft’ is customarily
used to convey the idea of criminal conduct but if the conduct is
not criminal in nature then is it still ‘theft’. Would the same
pejorative term be applied? Maybe, may be not. But I reckon I am
on safe ground in assuming that no-one would call it ‘creativity’. Not patent-ly obvious
That changed in the early 1980’s when the US Supreme Court ruled that a programme could be patented provided that it enabled an actual process to be conducted. Hence, a software programme than enabled the user to analyse, say, tectonic plate movements in the earth’s crust, would be eligible for patent protection. As for me, I have always regarded this as something of a creative stretch. One might as well argue that a book containing instructions on how to interpret financial data should be protected by a patent. This issue reared its dubious head recently when Kodak successfully sued Sun Microsystems on the basis that the latter’s famous ‘Java’ script works the same way as some patented software programmes belonging to the former. Apparently, various commentators (though not actually identified in the linked article) have complained that this case illustrates everything that is wrong with patenting software programmes and I must say that I am inclined to share at least some degree of this disappointment. After all, software is merely a set of composed mathematical instructions and, to my mind, that makes it rather analogous to any other written composition such as a music score which enables a musician to play the violin. This being the case, surely copyright protection would be more appropriate? This issue will, as they say, run and run
but, in the meantime, software patents are firmly fixed in the legal
firmament. I only hope that they will not result in any stifling
of creative endeavour in the field of software development. David Beckham - Trademark.
Mr. Irvine won and Talksport was left with a hefty bill for damages and legal costs. This case is so interesting because there
has never been any property in a person’s image. If you spotted
a famous film star on the street, you could take a photograph of
them and simply publish it in your magazine. In fact, you can still
do that but cases like Irvine have made it harder to do. Added to
this are also legislative measures such as the Data Protection Act
1998 and other cases such as ‘Douglas,
OK Magazine Vs. Hello! Magazine’. Step-by-step, we appear to
be moving in the direction of ‘trademark images’ and perhaps that
is not as illogical as it sounds in a highly visual era when celebrity
endorsement can be worth an awful lot of money. We are not there
yet, but I can see it coming. Keep it simple, stupid
(if you can) Their aim is to ‘to help pro-technology politicians and defeat the ones who want to expand copyright law.’ But, unlike so many other ‘activists’ they are not merely indulging in the negative but have something positive to offer as well. After a fashion. Within their ‘Statement of Principles’ they claim that “Intellectual property laws should be clear and explicit, so anybody can create without fear of lawsuits.” Well, good luck is all I can say. I will wager that iPac are not the only people who long for simplicity in the law. The trouble is, life is never that simple. However, plainly and curtly you draft any law, it is a cast-iron certainty that it will not stay simple for long. There is an obvious (and popular) temptation to blame this on venal lawyers and their desire for ever greater fee rewards but the actuality lies in our Western tradition of expository law which makes any principle open to constant scrutiny, argument and interpretation. Even assuming that someone was bold enough to boil down the entire principle of copyright to three or four plain English lines, I guarantee you that those few lines will spawn a warehouse full of complex precedents that will prove every bit as intimidating to the lay person as the previous arrangements. Alas, there is just no way to keep it simple. Helping
to spread poverty I already think that IP rights are a good idea but for anyone in any degree of doubt, I can do not better than to draw attention to this attack on the World Intellectual Property Organisation. Inspired and instigated by a wearily familiar hotchpotch of marxoid activists (such as Oxfam and Third World Network) all euphemistically referred to as ‘consumer groups’, the aim is destroy the very principles of IP. As per usual, the real agenda is hidden behind popular bromides such as “take a more balanced and realistic view of the social benefits and costs of intellectual property rights…. impose global conformity only when it truly benefits all of humanity.” In other words, surrender up the principles of IP to political manipulation and control. In keeping with similar ‘anti-globo’ campaigns, the rhetoric is couched in the language of apparent reasonableness and limited aims. But we all know that this is just Stage 1. The campaigners have persuaded the governments of Brazil and Argentina to front the operation and I rather suspect that the political leaders of those famously basket-case economies are excited about the possibility of stealing other people’s property and claiming it for their own. Property rights are essential for investment,
innovation, creativity and risk-taking and, consequently, they are
despised by people who wilfully refuse to learn the lessons of history.
These are the people whose wrong-headed ideas are keeping the poor
in poverty and squalor. Those of us who know better must trample
mercilessly all over this campaign. Software
does not steal Unfortunately, the response of the Recording/Media industry has been to rush off to Washington in an attempt to overturn the decision by including provisions against the possession of P2P software in the new INDUCE Act. In my view, this is a deeply misconceived strategy. Attempts to stamp out new technologies are both iniquitous and self-defeating. Who can possibly deny that the film industry has made a king’s ransom from VCRs despite that fact that they are frequently used to make illegal copies of TV broadcasts? The recording and media industries would
be far better advised to devote their considerable talents and energies
to (a) making the principles case for IP rights and (b) developing
new business models to profitably exploit the new technologies from
which we all benefit. Did
cavemen own their clubs? I do not suppose that anybody has the first idea but the picture is a little clearer when we talk about the ownership of land. Pre-historic hunter-gatherers had no concept of land ownership. They may have owned their spears and their loincloths, but fixed plots of land are of no use to nomadic people. In order to claim title to land you have to settle it and, moreover, stick around to defend it. While I am unable to place any dates on it, it seems to me most likely that concepts of land ownership first evolved as a response to the development of agriculture and animal husbandry. I was prompted to delve into all of this after rummaging around on the UK Patent Office website where they have a small section devoted to the history (such as it is) of patents. It seems that the origins are unclear but Britain does have the longest continuous patent tradition in the world and the earliest known English patent for invention was granted by Henry VI to Flemish-born John of Utynam in 1449. Now I wonder what was going on technologically and socially in the mid-15th Century to make patents suddenly seem like a good and desirable idea? I am pretty sure that this was pre-industrial revolution but, beyond that, I do not know. But what does seem clear to me is that,
like wealth and ideas and resources, concepts of property rights
are not fixed. It's
the reputation, stupid These scams are conducted by thieves who disguise themselves by fraudulently replicating the logos and domain names of reputable banks in order to ‘phish’ for credit card numbers supplied to them by unwary members of the public. Of course, it is all highly illegal as well as frustrating and time-consuming but enforcement is in the hands of the state. The legitimate businesses whose reputations are being ripped off and sullied have no power to prosecute the offenders. But they can sue them for Trade Mark infringement and are now being urged to do so by the Institute for Spam and Internet Public Policy. I hope that the advice is heeded and that the fraudsters are sued into the ground. Not only would that be justice but it would remind everyone that IP rights are not just about producer advantage but also about consumer security. The trade mark of a reputable company is not just an asset for that company, it is also a signal to the consumer that they are doing business with an organisation that they can trust. That is not to say that a trade mark, per
se, is any guarantee of quality but where quality is on offer, a
protected name or mark is a way of allowing the consumer to do business
in confidence. A
Passage to India It turns out that India does, in fact, have drug patent laws but they only protect processes and not products. The result of this is that while India has a thriving pharmaceutical manufacturing sector, very little time or effort is spent on clinical trials. Instead, Indian agents scour the US and Europe for new drugs which they can take back to India and generically copy at a fraction of the cost. All very well and good but the lack of clinical trials has meant an equivalent lack of homegrown expertise. In other words, lots of activity but no innovation. All that may change next year when India
starts honouring product patents as a part of its commitment to
the WTO. Given the industrial infrastructure already in existence,
I expect that India will, in the fullness of time, become a major
centre of research and development. Indeed, several big pharmaceutical
companies in the developed world are planning a new round of ‘outsourcing’
to India in precisely that expectation. So the future of the Indian
pharmaceuticals business looks a lot brighter than the past. But
only because they have agreed to start respecting IP rights. The
Sweet Smell of Success At least, you will be able to smell it if the decision of a Dutch appeal court in favour of French perfume manufacturer, Lancome, stands. The court decided that Lancome’s perfume compositions are covered by copyright. Yes, copyright. Despite appearing a somewhat bizarre ruling at first sight, there is an interesting rationale behind it. Lawyers for Lancome argued that their client’s perfume composition is a ‘work’ as defined by Copyright law and has an original character. The court held that, although the unique smell could not be protected (as being too transient) the composition was ‘experienced’ by the user in the same way that the composition of a book or song is ‘experienced’ by the reader or listener. The defendants counter-argument that the perception is too subjective was rebutted by the assertion that the perception of all copyright protected work is subjective. This decision can truly described as groundbreaking. If the composition of perfumes can be protected by property rights, then why not the recipes for food or drinks? That certainly would solve the problem for producers who jealously guard their ‘secret’ recipes from competitors (the most notable of which, I suppose, is Coca-Cola). Imagine an ‘open-source’ cookery project? However, the article indicates that the
decision is unlikely to stand and, even if it stands in its native
Holland, it may not be followed elsewhere. But it is an intriguing
idea and I would not be in the least bit surprised it does raise
its head again in some form or another. Strength
in numbers This problem can be particularly pronounced in the area of IP law wherein professional legal expertise generally comes at a price that is way beyond the pocket of a small businessman or enterprise. So I feel that decision of the UK Patent Office to establish a mutual assurance fund is a welcome and helpful one. The idea is that the fund will provide financial help to small or medium-sized patent holders so as to enable them to enforce their patent rights, with premiums fixed in proportion to risk. As anyone who works in the field of IP can testify, it is not so much a minefield as a war-zone. ‘The little guy’ (for want of a better term) regularly finds himself up against Giant Mega Global Corporation in either trying to establish his patent rights against them or trying to fend them off when they are throwing their considerable weight around with him. Sadly, it is often much easier and far less risky for the little guy to simply walk away. This is not to say that the big guy is always in the wrong. Just that the little guy should get a chance to prove that he is in the right. I hope that, in time, private insurers
will offer similar services. This
song is his song However, such widespread exposure brings with it risks, one of which is the risk of lawyers bearing writs. Apparently, the production company responsible for the cartoon has been served with a "cease-and-desist" notice served on behalf of a music publishing company called Ludlow Music who claim that they own the IP rights of the song. I cannot comment further on the claim but I do recall reading somewhere not all that long ago that the late Mr. Guthrie offered his song up to the public domain together with his permission for anyone to do anything they wanted with it. In other words, he waived his own property rights which, his being a communist, is certainly consistent. I don't know for sure whether this is true
and, if it is, what that means for Ludlow Music and their claim
but it is an interesting example of the voluntary nature of IP Rights.
Opponents of IP often speak of it as if it is some oppressive regime
imposed from on high. But the truth of the matter is that it is
only invoked at the discretion of the inventor/author and, if that
inventor/author elects not to invoke it then nobody else can. Get
creative! One such development is the ‘Creative Commons Project’. Established in 2002 by an impressive list of cyberlaw and computing luminaries, the aim of the project is to provide an alternative to traditional copyright law. The system operates by means of a set of template licences which artists can apply to their works prior to releasing them to the public. There is, for example, an ‘Attribution’ licence which means that the work can be copied by others as long as they attribute the owner (equivalent to the concept of ‘moral rights’ in traditional copyright). There is also a ‘Non-commercial’ licence which means that the work can be copied provided those copies are not put to any commercial use. I suppose, though, that anyone who does want to make commercial use of the copies can always approach the owner and offer to pay royalties which brings us pretty much back into the realm of traditional copyright. That said, I am an enthusiastic supporter of this project because it is a voluntary, non-state example of the free market at work. The Creative Commons Project is an entrepreneurial means of providing property-owners with a choice of legal mechanisms for distributing their commodities in the market while protecting and advancing their interests. The Creative Commons team are now working
on a ‘Science Commons’ project. I shall be keeping an eye on developments. No
need for bogeymen Similarly, the Federation Against Copyright Theft maintain that copyright piracy funds terrorism, organised crime, drugs and prostitution. Over in the USA, Senator Orrin Hatch feels he has to invoke the spectre of child abuse in order to promote the INDUCE Act. Why do the scions of the entertainment industry feel obliged to make their case against IP theft by hitching it to all manner of odious and morally reprehensible wagons? Do they not have sufficient faith in their own IP rights to allow them stand on their own legs? Nobody has to illustrate the wickedness of burglary by linking it with terrorism. Even if the claims are true, this is a very poor strategy. Sensationalism is, by its very nature, transient and ‘shock, horror’ stories tend to have a limited shelf life. Sooner or later the inured public will respond with a big shrug of indifference leaving the entertainment industry with no other arguments to fall back on and no credibility left with which to make them anyway. The case for IP rights is every bit as
strong and valid and compelling as the case for all property rights.
Either make them in haste or repent at leisure. 101
uses for open-source code I shall continue to hold my own judgement in reserve for I have noticed that, among the mission statements of the Free Software Foundation is a belief in the ‘right to write software unimpeded by private monopolies’. I assume that by ‘private monopolies’ they actually mean property rights which they appear to hold in some contempt. Ironic, then, that their sister organisation in Europe applied to the EU for a grant of public funds, only for the application to be declined (and chalk one up there for whoever in Brussels made that decision). So ‘private monopolies’ are a bad thing but wheedling subsidies out of the European taxpayer is okay? On the other hand, the open-source brigade
is helping to balance up the scales of justice in France where it
is competing with Microsoft for the contractual hand of the Paris
Municipality. The very real threat of losing such a prestigious
client has forced Microsoft into slashing its prices by 57%. Assuming
they get awarded the contract, will the saving be passed onto the
Parisian taxpayer? That’s a long shot, I know, but in that unlikely
event, it will be down to the stirring competitive effort of the
open-source brigade and I will cheerfully chalk one up for them. Feedback Here, you find the following
text:
This misunderstanding combined with the fact that Mr. Carr is an intellectual property lawyer, and that he (accidentally or deliberately) provided a broken link to FSF foundation web page, means that it is possible to view this piece as involving FUD tactics against the Open Source movement. Mr. Carr does not appear to know that a huge proportion of the Open Source movement view the FSF as the lunatic fringe. - from Kieran Barry The
Trial of Barbie So three cheers for the little guy who prevailed over the big, bad corporate bully, right? Wrong. Mattel Inc were not just being beastly for the sake of it. Because of the way the law works, trademark owners have little choice but to move against what may often appear to be trivial infringements of their property rights. This is because of the dangers that an unprotected mark may become the subject of such common usage that the law considers it to be ‘generic’ and therefore lost to the original trademark owner. Thus did the German company, Bayer, lose their rights to the ‘Aspirin’ trademark. So if you own a trademark, it’s a case of ‘sue it or lose it’. One may sympathise with a commercial artist trying to earn a crust but spare a thought for Mattel Inc who are ethically damned if they do and financially damned if they don’t. By the way, the linked article goes on
to explain how sales of Barbie are suffering due to competition
from younger, hipper models. So, regardless of how vigourously you
enforce your property rights (a) you still can’t buck the market
and (b) every doll has its day. Let
my taxpayers go According to this press release of 21st June, the NHS has appointed a new Director of Intellectual Property, namely Dr. Maire Smith who is charged with ensuring that the NHS reaps the full financial rewards of ‘tapping into the commercial potential of new ideas’. In other words, the NHS is going to start meaningfully exploiting the industrial property rights on their innovations and while it seems that Dr. Smith is not the first appointee to this role, I judge from the ‘dawn-of-a-new-era’ tone of the press release that perhaps this is a revenue stream which the NHS has hitherto not been exploiting as it should. I just get the sense that Dr. Smith has that dash of the ‘new broom’ about her. This is good news, I say. Better by far that the NHS earn revenue from patent exploitation rather then plunge the scalpel ever more deeply into the beleaguered British taxpayer. But that is only the start of the good news. In the longer term, a basket of lucrative patents would make the NHS (or its various constituent parts) a far more attractive proposition for the market should a British government in need of the capital receipts decide to sell it off. Now that really would the ‘dawn-of-a-new-era’. P2P
don't mean 'free' So far, so what? Well, the trademark that Sharman License Holdings has been trying to protect is none other than 'Kazaa', the distinctive name of the famous (and, in some circles, infamous) P2P file-sharing software. Opponents of IP might be excused some cognitive dissonance at this point. How could a company that produces "liberating" software that apparently circumvents traditional copyright protections possibly be seeking to enforce their own industrial property rights against others? The answer is that Sharman License Holdings are not at all anti-copyright. Not only do they evangelise about the past, present and future of their P2P software on their company website, but they also encourage artists to distribute their products through Kazaa by means of a "digitally-rights managed" account. The revolution they seek to incite is not against property rights but what they see as the outdated ways of doing business in the entertainment industry. P2P software is certainly an interesting
development that is not going to go away and it could well be that
exciting and lucrative business models do emerge from within in
it. However, even major producers of this software accept that,
in order for this to happen, copyright must be recognised and enforced. The
intellectual is the industrial Having thus declared my position, I also must confess that I find the term ‘Intellectual Property’ to be somewhat unsatisfactory. After all, a contract or a lease is every bit as ‘intellectual’ in nature as a new process of baking bread. More importantly, I think that the use of the specific term ‘Intellectual Property’ to describe original ideas is unfairly tainting the issue by implying that property in ideas is somehow more ephemeral and nebulous than property in actual physical things. I do not accept that this is true and I therefore submit that the ownership of ideas and concepts should more properly be described as ‘Industrial Property’, which is to say that they are things which may be exploited by their owners for commercial ends. On the face of it, the term ‘Industrial Property’ may more readily be applied to patents, trademarks and registered designs. But I think there is an equally good case for extending the term to cover copyright as well. Is not publishing every bit as much an industry as, say, pharmaceuticals? I do not believe that my semantic suggestion
will resolve the raging debate or even clarify the muddy waters.
But it may help to frame the arguments more accurately.
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