On intellectual property with a cool head. Part 1
Wars around copyright and patents do not leave the main pages of the media and blogs. Unfortunately, most publications are limited to the statement of another scandalous fact and emotions in the spirit of “They killed Kenny! Bastards! The position of the author often boils down to two extreme options: a) Everyone has the right to dispose of the fruits of his labor, as he pleases; b) Information must be free! As often happens, the extremes agree on one thing - both options are too primitive and one-sided, so that they have at least some sense.
Before attempting to propose a non-primitive and one-sided version, it is worth understanding what intellectual property is in general, what its varieties are, and why they are regulated so and not otherwise.
The need for the concept of intellectual property arises when it is necessary to resolve the contradiction between the need to publish the fruit of intellectual work and the need to guarantee the reward to the author. As the dictionary definition states, intellectual property is a monopoly fixed by law on the result of intellectual activity. Monopoly! Almost always and everywhere it is considered undesirable. In any developed country there is an antitrust legislation aimed at supporting competition. And then suddenly bang! - monopoly is introduced artificially.
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Know-how and trade secrets are usually separated from other types of intellectual property, since the monopoly position is guaranteed by means of secrecy, and not legal norms and prohibitions. Science is also aloof - the author of the discovery can only claim recognition of his priority, but not the extraction of benefits, a monopoly on scientific discoveries and laws are not introduced. Science is generally rarely mentioned in the context of the protection of intellectual rights.
Apart from these boundary cases and narrow niches, such as intellectual property rights to plant varieties or tricks and illusions ( yes, there is one ), there are three main areas of intellectual property rights: copyright, patents and trademarks.
Trademarks and signs are the most quiet and trouble-free area. There’s nothing to argue about here - fakes and imitations harm both sellers and buyers, so there is a complete mutual understanding, and the laws usually spell out quite narrow limits of applicability of trademark protection rules - if you want to mention a trademark in a song or book, or portray in the picture, sue you quite problematic in most countries of the world. Excesses happen, but rarely. Procedures and rules in this area strongly resemble procedures and rules when registering patents for inventions. Therefore, we will not consider this area of ​​law, but instead dwell on science in greater detail. Despite its separate position, it gives an additional, very useful point on the chart, which will help us a lot. Thus, we will compare the three industries - copyright, patents and science.
Consider the situation in terms of the market. Any market is an interaction of sellers and buyers. In marketing, there are the concepts of "seller's market" and "buyer's market." Under natural conditions of an unregulated market, in the event of a shortage of goods, the seller receives advantages, and the buyer has to run and bargain to get the goods - this is the “seller’s market”. If the goods are in abundance - the opposite is true.
If the market of copyright works were absolutely free, then it would be an extreme example of a buyer's market. Especially with the advent of free copying works. If the cost of producing an instance of a work tends to zero, only a few authors can fully satisfy mass demand. Given the variety of tastes and preferences - only a few thousand authors. All the rest will have to either develop extremely narrow niches, or aggressively compete in price with dozens and hundreds of competitors, up to complete ruin.
In reality, this market today is almost completely artificial, and the rules of the game are almost 100% written in favor of the sellers. They set prices. They dictate what can and cannot be done even after a purchase, which, by the way, is not even legally a purchase, but something of a lease on very tricky conditions.
Why did this happen? It’s not just a matter of wanting to protect authors and ensure cultural diversity. Laws are created and maintained by the so-called "powers that be," those who have a monopoly on the use of violence in society. Like a thousand years ago, the cruellest natural selection leads to the fact that among them pathological egoists and mercantile schemers dominate. Decent people who sincerely wish to serve society also meet, and more and more often (yes, I am an optimist, I can’t do anything with myself), but they are still very far from being dominant over the lovers of power lovers.
This elite is most interested in two things - power and money. And they write the laws in favor of those who are able to give them to them. Before the invention of printing and literacy, the book business was of no interest to anyone, no one thought to protect the authors' rights, only individual patrons encouraged the authors themselves, and the government generally preferred to burn and plant so as not to brood and heresy. But as soon as they began to generate solid profits, laws appeared written in their interests. In more detail about the history of copyright, I wrote in this topic .
Who plays on the side of sellers in the mass culture market? Media corporations that pay taxes, which are combined into influential associations and have enough resources to generously reward their loyal politicians. Who plays on the buyers side? Scattered amorphous mass. Can you imagine a strike or a protest demonstration under the slogan “I got out pops!”, “Give us the price cuts for movie tickets!” And the like? Me not. This is just entertainment. Most do not care what to watch, read or listen to. You can listen to last year’s CD and not to go to the cinema once again if there is no such possibility. This is not bread or gasoline.
And a minority that cannot live without a good book or music exists outside the market, just like the authors who create for them. Such authors write because they can not write. They were imprisoned in jails and in mental hospitals, and burned at the stake, and not only that they paid little — and still they stubbornly continued to write.
Actually, it is these authors that serve as the only justification for the existence of the system that has been established today. From the table, the giants of the entertainment industry fall to them. The efficiency of such a system is minimal. In a plus - the fact that the authors, really creating a cultural landscape in which our children and grandchildren are to live, do not starve. In the red - a mass culture gum, which is spent chewing on a lot of time and resources, serious restrictions on freedom of creativity, freedom to create derivative works and modification of existing ones, obstacles to the spread of culture and knowledge and direct commercial censorship (yes, any ban on publishing is actually censorship), smoothly turning into political .
And now let's look at science. Here is the opposite. If the rules of the game on the “market” of scientific discoveries were at least a bit market-based, scientists would rule the world, because the “goods” are in short supply and will bring huge benefits. In reality, there is no market. The main direct consumers of the achievements of science - the army, corporations, special services - the very "powerful of this world." They write the rules. Naturally, in their favor. That is why young pop singers, actors and producers have much greater chances of becoming millionaires than the most brilliant scientists and university rectors.
Yes, in developed countries, scientists do not starve. But they have no opportunity to dispose of the fruits of their labor. The only way to wealth and financial independence is to retrain as entrepreneurs and build a business based on their discoveries. But not everyone and not always can and want to do it. This is an extreme variant of the buyer's market, so extreme that there is no market as such - the “buyer” simply appropriates all the goods, paying the seller “according to needs” so that he does not die of hunger — pure communism.
Naturally, everything is not so gloomy - in order to justify such a state of affairs, those in power are forced to share with the rest, thanks to which the achievements of science become public property and work for the benefit of all. This is a big plus of such a system. The scientific community has a lot to learn.
Every scientist can freely use the results of the work of other scientists. Neither in patent nor in copyright and there is nothing close to it. Scientists do not have to build three hadron colliders instead of one just because they do not have a license. Scientists do not suffer from the fact that the heirs of one of them (who suddenly turned out to be religious fanatics) forbade the use of the laws revealed by him to build new hypotheses.
In the end, in any intellectual work, the main producers are almost always large consumers - innovative technology companies are tied by a dense network of cross-licensing, writers usually read a lot of books, and musicians listen to a lot of music. Free distribution significantly reduces their own costs.
Due to the lack of market competition, the main condition for the success of scientific ideas is their quality, and not profitability. The success of a new gadget is much more dependent on the entrepreneurial abilities of its manufacturer. The success of a popular musician - from the efforts of the producer. And scientists have no chance to push through their idea if it is worse than alternative ones. Exceptions to this rule are only when ideology interferes with science and some areas are administratively declared “the only true”. Well, or when the charlatan finds a gullible rich sponsor.
A peer review has emerged in the scientific community, when any scientific work is checked by a fellow scientist working in the same field. Naturally, it is not perfect, there are failures in it, but it is an order of magnitude better than the practice of promoting a single-type stamped pop-cultural product or an examination of patents made by officials, often allowing to patent any nonsense.
Copyright and science gave us two extreme points of the graph. Between them is the patent law. In this market, the strength of sellers and buyers is about the same, or at least comparable. Therefore, the deadline for granting monopoly is much less than in copyright, but not completely absent, as in science. To get the right to such a monopoly, you need quite a lot of time and money, unlike the right to author's works, where monopoly arises automatically, or science, where it does not exist at all. Moreover, sometimes the invention may not be examined at all.
Problems in patent law are concentrated in several bottlenecks - primarily in software and design patents. Nine out of ten scandals and absurd restrictions are associated with them. But in general, the system is still operational. But, I am afraid, there is not much time left ... The number of applications for patents is growing exponentially, and the relative qualifications of experts are falling rather than growing. The patent examiner is an ordinary official, albeit of a rather high rank. He is obliged to have a specialized education - but who will surprise you today with this? And once the patent examination, for example in France, was carried out by the Academy of Sciences ...
The fact that the current patent examination system is inadequate to the modern level of science and technology can be easily seen by opening Wikipedia. In the English section (I took it as a basis, as the most complete and detailed), at the end of the article devoted to patent examiners, there is a table “Outstanding Patent Experts”. There are only six lines in it! Three names out of six are unknown to me. Of those three whose names I know, one is Heinrich Altshuller, the author of TRIZ, a man who has devoted most of his life to invention. The second is Thomas Jefferson, who, like many other founding fathers of the United States, was not only a politician, but also a scientist, inventor and philosopher of the Enlightenment. He became the first member of the US patent commission, while already occupying the position of state secretary, so that, like Altshuller, he cannot be called a typical example of a patent examiner. The third, of course, Albert Einstein, who worked in the patent office in his youth, was not able to get an academic position.
It turns out that among patent examiners there are surprisingly few outstanding people with uncommon talent and abilities. Moreover, the list of famous inventors contains many hundreds, and the lists of scientists contain thousands of names. According to the same Wikipedia, the average patent examiner examines from a few to a couple dozen patents per month. Even taking into account the fact that he has several assistants (with a lower salary and qualifications), this “expertise” is inevitably superficial and formal.
The main advantage of the patent system is the mandatory publication of all inventions and their transfer to the public domain after the end of the term of protection. Superficial critics of patents often forget that if it were not for the patent system, most of the research departments of a company would be something like top-secret weapons laboratories; medicines, instead of free sale in pharmacies, would be introduced at special points only by authorized personnel of pharmaceutical corporations, and consumer devices would be provided with multi-level protection against hacking and would self-destruct when trying to see what was inside. Strict secrecy would be the only way to make money on the invention, until it was copied everything.
Let's sum up. The advantages and disadvantages of the three main modes of intellectual property regulation can be summarized in the table:
In the next part, I will describe my vision of an intellectual property protection system that is adequate to the capabilities of modern technologies and the needs of today's society. The essence of the proposed scheme is, first, to “make friends” the protection of the interests of the authors and free distribution; secondly, whenever possible, replace legal mechanisms that require a bulky supervisory apparatus over the observance of laws and rules, technical ones, which operate without the participation of lawyers and officials, and therefore can be several orders of magnitude cheaper, faster and more reliable. Naturally, this will be a somewhat utopian description, not a plan of practical actions and not a detailed TK. But some of its elements are fully applicable within the framework of existing laws and practices.
UPD: The second part .
Before attempting to propose a non-primitive and one-sided version, it is worth understanding what intellectual property is in general, what its varieties are, and why they are regulated so and not otherwise.
The need for the concept of intellectual property arises when it is necessary to resolve the contradiction between the need to publish the fruit of intellectual work and the need to guarantee the reward to the author. As the dictionary definition states, intellectual property is a monopoly fixed by law on the result of intellectual activity. Monopoly! Almost always and everywhere it is considered undesirable. In any developed country there is an antitrust legislation aimed at supporting competition. And then suddenly bang! - monopoly is introduced artificially.
')
Know-how and trade secrets are usually separated from other types of intellectual property, since the monopoly position is guaranteed by means of secrecy, and not legal norms and prohibitions. Science is also aloof - the author of the discovery can only claim recognition of his priority, but not the extraction of benefits, a monopoly on scientific discoveries and laws are not introduced. Science is generally rarely mentioned in the context of the protection of intellectual rights.
Apart from these boundary cases and narrow niches, such as intellectual property rights to plant varieties or tricks and illusions ( yes, there is one ), there are three main areas of intellectual property rights: copyright, patents and trademarks.
Trademarks and signs are the most quiet and trouble-free area. There’s nothing to argue about here - fakes and imitations harm both sellers and buyers, so there is a complete mutual understanding, and the laws usually spell out quite narrow limits of applicability of trademark protection rules - if you want to mention a trademark in a song or book, or portray in the picture, sue you quite problematic in most countries of the world. Excesses happen, but rarely. Procedures and rules in this area strongly resemble procedures and rules when registering patents for inventions. Therefore, we will not consider this area of ​​law, but instead dwell on science in greater detail. Despite its separate position, it gives an additional, very useful point on the chart, which will help us a lot. Thus, we will compare the three industries - copyright, patents and science.
Copyright
Consider the situation in terms of the market. Any market is an interaction of sellers and buyers. In marketing, there are the concepts of "seller's market" and "buyer's market." Under natural conditions of an unregulated market, in the event of a shortage of goods, the seller receives advantages, and the buyer has to run and bargain to get the goods - this is the “seller’s market”. If the goods are in abundance - the opposite is true.
If the market of copyright works were absolutely free, then it would be an extreme example of a buyer's market. Especially with the advent of free copying works. If the cost of producing an instance of a work tends to zero, only a few authors can fully satisfy mass demand. Given the variety of tastes and preferences - only a few thousand authors. All the rest will have to either develop extremely narrow niches, or aggressively compete in price with dozens and hundreds of competitors, up to complete ruin.
In reality, this market today is almost completely artificial, and the rules of the game are almost 100% written in favor of the sellers. They set prices. They dictate what can and cannot be done even after a purchase, which, by the way, is not even legally a purchase, but something of a lease on very tricky conditions.
Why did this happen? It’s not just a matter of wanting to protect authors and ensure cultural diversity. Laws are created and maintained by the so-called "powers that be," those who have a monopoly on the use of violence in society. Like a thousand years ago, the cruellest natural selection leads to the fact that among them pathological egoists and mercantile schemers dominate. Decent people who sincerely wish to serve society also meet, and more and more often (yes, I am an optimist, I can’t do anything with myself), but they are still very far from being dominant over the lovers of power lovers.
This elite is most interested in two things - power and money. And they write the laws in favor of those who are able to give them to them. Before the invention of printing and literacy, the book business was of no interest to anyone, no one thought to protect the authors' rights, only individual patrons encouraged the authors themselves, and the government generally preferred to burn and plant so as not to brood and heresy. But as soon as they began to generate solid profits, laws appeared written in their interests. In more detail about the history of copyright, I wrote in this topic .
Who plays on the side of sellers in the mass culture market? Media corporations that pay taxes, which are combined into influential associations and have enough resources to generously reward their loyal politicians. Who plays on the buyers side? Scattered amorphous mass. Can you imagine a strike or a protest demonstration under the slogan “I got out pops!”, “Give us the price cuts for movie tickets!” And the like? Me not. This is just entertainment. Most do not care what to watch, read or listen to. You can listen to last year’s CD and not to go to the cinema once again if there is no such possibility. This is not bread or gasoline.
And a minority that cannot live without a good book or music exists outside the market, just like the authors who create for them. Such authors write because they can not write. They were imprisoned in jails and in mental hospitals, and burned at the stake, and not only that they paid little — and still they stubbornly continued to write.
Actually, it is these authors that serve as the only justification for the existence of the system that has been established today. From the table, the giants of the entertainment industry fall to them. The efficiency of such a system is minimal. In a plus - the fact that the authors, really creating a cultural landscape in which our children and grandchildren are to live, do not starve. In the red - a mass culture gum, which is spent chewing on a lot of time and resources, serious restrictions on freedom of creativity, freedom to create derivative works and modification of existing ones, obstacles to the spread of culture and knowledge and direct commercial censorship (yes, any ban on publishing is actually censorship), smoothly turning into political .
The science
And now let's look at science. Here is the opposite. If the rules of the game on the “market” of scientific discoveries were at least a bit market-based, scientists would rule the world, because the “goods” are in short supply and will bring huge benefits. In reality, there is no market. The main direct consumers of the achievements of science - the army, corporations, special services - the very "powerful of this world." They write the rules. Naturally, in their favor. That is why young pop singers, actors and producers have much greater chances of becoming millionaires than the most brilliant scientists and university rectors.
Yes, in developed countries, scientists do not starve. But they have no opportunity to dispose of the fruits of their labor. The only way to wealth and financial independence is to retrain as entrepreneurs and build a business based on their discoveries. But not everyone and not always can and want to do it. This is an extreme variant of the buyer's market, so extreme that there is no market as such - the “buyer” simply appropriates all the goods, paying the seller “according to needs” so that he does not die of hunger — pure communism.
Naturally, everything is not so gloomy - in order to justify such a state of affairs, those in power are forced to share with the rest, thanks to which the achievements of science become public property and work for the benefit of all. This is a big plus of such a system. The scientific community has a lot to learn.
Every scientist can freely use the results of the work of other scientists. Neither in patent nor in copyright and there is nothing close to it. Scientists do not have to build three hadron colliders instead of one just because they do not have a license. Scientists do not suffer from the fact that the heirs of one of them (who suddenly turned out to be religious fanatics) forbade the use of the laws revealed by him to build new hypotheses.
In the end, in any intellectual work, the main producers are almost always large consumers - innovative technology companies are tied by a dense network of cross-licensing, writers usually read a lot of books, and musicians listen to a lot of music. Free distribution significantly reduces their own costs.
Due to the lack of market competition, the main condition for the success of scientific ideas is their quality, and not profitability. The success of a new gadget is much more dependent on the entrepreneurial abilities of its manufacturer. The success of a popular musician - from the efforts of the producer. And scientists have no chance to push through their idea if it is worse than alternative ones. Exceptions to this rule are only when ideology interferes with science and some areas are administratively declared “the only true”. Well, or when the charlatan finds a gullible rich sponsor.
A peer review has emerged in the scientific community, when any scientific work is checked by a fellow scientist working in the same field. Naturally, it is not perfect, there are failures in it, but it is an order of magnitude better than the practice of promoting a single-type stamped pop-cultural product or an examination of patents made by officials, often allowing to patent any nonsense.
Patent law
Copyright and science gave us two extreme points of the graph. Between them is the patent law. In this market, the strength of sellers and buyers is about the same, or at least comparable. Therefore, the deadline for granting monopoly is much less than in copyright, but not completely absent, as in science. To get the right to such a monopoly, you need quite a lot of time and money, unlike the right to author's works, where monopoly arises automatically, or science, where it does not exist at all. Moreover, sometimes the invention may not be examined at all.
Problems in patent law are concentrated in several bottlenecks - primarily in software and design patents. Nine out of ten scandals and absurd restrictions are associated with them. But in general, the system is still operational. But, I am afraid, there is not much time left ... The number of applications for patents is growing exponentially, and the relative qualifications of experts are falling rather than growing. The patent examiner is an ordinary official, albeit of a rather high rank. He is obliged to have a specialized education - but who will surprise you today with this? And once the patent examination, for example in France, was carried out by the Academy of Sciences ...
The fact that the current patent examination system is inadequate to the modern level of science and technology can be easily seen by opening Wikipedia. In the English section (I took it as a basis, as the most complete and detailed), at the end of the article devoted to patent examiners, there is a table “Outstanding Patent Experts”. There are only six lines in it! Three names out of six are unknown to me. Of those three whose names I know, one is Heinrich Altshuller, the author of TRIZ, a man who has devoted most of his life to invention. The second is Thomas Jefferson, who, like many other founding fathers of the United States, was not only a politician, but also a scientist, inventor and philosopher of the Enlightenment. He became the first member of the US patent commission, while already occupying the position of state secretary, so that, like Altshuller, he cannot be called a typical example of a patent examiner. The third, of course, Albert Einstein, who worked in the patent office in his youth, was not able to get an academic position.It turns out that among patent examiners there are surprisingly few outstanding people with uncommon talent and abilities. Moreover, the list of famous inventors contains many hundreds, and the lists of scientists contain thousands of names. According to the same Wikipedia, the average patent examiner examines from a few to a couple dozen patents per month. Even taking into account the fact that he has several assistants (with a lower salary and qualifications), this “expertise” is inevitably superficial and formal.
The main advantage of the patent system is the mandatory publication of all inventions and their transfer to the public domain after the end of the term of protection. Superficial critics of patents often forget that if it were not for the patent system, most of the research departments of a company would be something like top-secret weapons laboratories; medicines, instead of free sale in pharmacies, would be introduced at special points only by authorized personnel of pharmaceutical corporations, and consumer devices would be provided with multi-level protection against hacking and would self-destruct when trying to see what was inside. Strict secrecy would be the only way to make money on the invention, until it was copied everything.
findings
Let's sum up. The advantages and disadvantages of the three main modes of intellectual property regulation can be summarized in the table:
| Type of | Virtues | disadvantages |
| Copyright | Registration of authorship is very simple and almost free. The rights of authors are well protected. Without any special efforts and knowledge, being engaged only in creativity, a popular author can earn enough money for a comfortable life. | The system brings the maximum benefit not to the authors, but to the publishers, whose real role in spreading the culture after the appearance of the cheap Internet has become much smaller. The terms of the monopoly are absurdly high and far exceed the needs of the author, often bringing benefits only to the right holders or heirs. The industrial nature of the production of popular culture leads to a decrease in quality (“Star Factory”, low-grade literature and cinema) and diversity (it is more profitable to stamp a dozen hits than thousands of different works). Care of profit limits the freedom of creativity - the creation of remixes, translations, adaptations, continuations is very difficult. |
| The science | Openness and freedom of research without legal restrictions. The most perfect mechanism for selecting and reviewing the best works. | Scientists are alienated from the results of their work and are almost entirely dependent on officials and businessmen. The system of grants and scientific awards is not able to effectively ensure the financial independence of many talented scientists. |
| Patent law | Mandatory publication and subsequent transfer to the public domain of inventions. Uniform ordered registers and databases of inventions. The presence of at least some mechanisms for eliminating outright nonsense. | Extreme bureaucratization of the entire system. Low quality patent examination. Lawyers , rather than inventors, turn to patent databases more often . |
In the next part, I will describe my vision of an intellectual property protection system that is adequate to the capabilities of modern technologies and the needs of today's society. The essence of the proposed scheme is, first, to “make friends” the protection of the interests of the authors and free distribution; secondly, whenever possible, replace legal mechanisms that require a bulky supervisory apparatus over the observance of laws and rules, technical ones, which operate without the participation of lawyers and officials, and therefore can be several orders of magnitude cheaper, faster and more reliable. Naturally, this will be a somewhat utopian description, not a plan of practical actions and not a detailed TK. But some of its elements are fully applicable within the framework of existing laws and practices.
UPD: The second part .
Source: https://habr.com/ru/post/157357/
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