From For the Hearts

In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property. However, the use of the term and the concepts it is said to embody are the subject of some controversy (see below).

The basic public policy rationale for the protection of intellectual property is that IP laws facilitate and encourage the pursuit and disclosure of innovation into the public domain for the common good, by granting authors and inventors exclusive rights to exploit their works and invention for a limited period.

However, various schools of thought are critical of the term intellectual property, the very concept of intellectual property, and some characterise IP as intellectual protectionism. There is ongoing debate as to whether IP laws truly operate to confer the stated public benefits, and whether the protection they are said to provide is appropriate in the context of innovation derived from such things as traditional knowledge and folklore, and patents for software and business methods. Manifestations of this controversy can be seen in the way different jurisdictions decide whether to grant intellectual property protection in relation to subject matter of this kind, and the North-South divide on issues of the role and scope of intellectual property laws. The global harmonisation of intellectual property legislation under the WTO has also been criticized, for example by the alter-globalization movement.

[edit] Four approaches to Intellectual Property

[edit] I: Utilitarianism

Designed to be useful or practical rather than attractive.
United States, Great Britain

The utilitarian guideline that lawmakers’ beacon when shaping property rights should be the maximization of net social welfare. Pursuit of that end in the context of intellectual property, it is generally thought, requires lawmakers to strike an optimal balance between, on one hand, the power of exclusive rights to stimulate the creation of inventions and works of art and, on the other, the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations. The distinctive characteristics of most intellectual products, Landes and Posner argue, are that they are easily replicated and that enjoyment of them by one person does not prevent enjoyment of them by other persons.

[edit] II: Labor Theory

By mixing his labour with an object, a person then owns that object – Natural Law.

A person who labors upon resources that are either unowned or »held in common« has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right. These ideas, originating in the writings of John Locke, are widely thought to be especially applicable to the field of intellectual property, where the pertinent raw materials (facts and concepts) do seem in some sense to be »held in common« and where labor seems to contribute so importantly to the value of finished products. ›A person may legitimately acquire property rights by mixing his labor with resources held »in common« only if, after the acquisition, »there is enough and as good left in common for others.«‹

[edit] III: Personality Theory

Philosophy of Right
Europe: Germany and France

Private property rights are crucial to the satisfaction of some fundamental human needs; policymakers should thus strive to create and allocate entitlements to resources in the fashion that best enables people to fulfill those needs. (a) We should be more willing to accord legal protection to the fruits of highly expressive intellectual activities, such as the writing of novels, than to the fruits of less expressive activities, such as genetic research. (b) Because a person’s »persona« – his »public image, including his physical features, mannerisms, and history« – is an important »receptacle for personality,« it deserves generous legal protection, despite the fact that ordinarily it does not result from labor. (c) Authors and inventors should be permitted to earn respect, honor, admiration, and money from the public by selling or giving away copies of their works, but should not be permitted to surrender their right to prevent others from mutilating or misattributing their works.

[edit] IV: Social Planning Theory

Legal Realists: »good faith« and »fair dealing.«
The Internet, progressive, United States

Property rights in general – and intellectual-property rights in particular – can and should be shaped so as to help foster the achievement of a just and attractive culture. In two ways, copyright law can help foster a robust, participatory, and pluralist civil society:
The first is a production function. Copyright provides an incentive for creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association. The second function is structural. Copyright supports a sector of creative and communicative activity that is relatively free from reliance on state subsidy, elite patronage, and cultural hierarchy. The copyright term should be shortened, thereby increasing the size of the »public domain« available for creative manipulation. Copyright owners’ authority to control the preparation of »derivative works« should be reduced for the same reason. Finally, compulsory licensing systems should be employed more frequently to balance the interests of artists and »consumers« of their works.

[edit] Evaluation

The four theories
Ambiguities, internal inconsistencies, and the lack of crucial empirical information severely limit their prescriptive power.

Wealth-maximization
1. Incentive Theory
Ideally, patent duration or strength should be increased up to the point where the marginal benefits equal the marginal costs.

2. Optimizing Patterns of Productivity
The logic of property rights dictates their extension into every corner in which people derive enjoyment and value from literary and artistic works. To stop short of these ends would deprive producers of the signals of consumer preference that trigger and direct their investments.

3. Rivalrous Invention

[edit] Using Kaldor-Hicks criteria to evaluate philosophies

Using Kaldor-Hicks efficiency, an outcome is more efficient if those that are made better off could in theory compensate those that are made worse off and lead to a Pareto optimal outcome. Thus, a more efficient outcome can in fact leave some people worse off.

The key difference is the question of compensation. Kaldor-Hicks does not require compensation actually be paid, merely that the possibility for compensation exists, and thus does not necessarily make each party better off (or neutral). Pareto efficiency does require making each party better off (or at least no worse off).

Pascal's Wager http://en.wikipedia.org/wiki/Pascal's_Wager
Atheist's Wager http://atheistwager.blogspot.com/2007/04/first-post.html
Nash equilibrium http://en.wikipedia.org/wiki/Nash_equilibrium

[edit] Idea-expression dichotomy

The idea-expression divide or idea-expression dichotomy is a concept which explains the appropriate function of copyright laws, which are generally designed to protect the fixed expression or manifestation of an idea rather than the fundamental idea itself. (Mickey Mouse as an anthromorphic mouse, Arne Anka.)