Chapter #8 Flashcards
What Is (Tangible) Property?
Originally, “property” referred to land.
Property now also includes objects that one can own, such as:
an automobile,
articles of clothing,
a DVD collection.
Essentially Physical items
Property as a “Relational” Concept
Philosophers and legal theorists point out that property can best be understood as a relationship between individuals in reference to things, where three elements need to be considered:
an individual (X ),
A “thing” or object (Y),
X’s relation to other individuals (A, B, C, etc.) in reference to Y.
Property as a Form of “Control” (read example)
X (as the owner of property Y) can control Y relative to persons A, B, C, and so forth.
If Harry owns a certain object (e.g. a Dell laptop computer), then Harry can control who has access to that object and how it is used.
For example, Harry has the right to exclude Sally from using that laptop; or he could grant her unlimited access to it.
Ownership claims involving “intellectual objects” (involving IP) are both similar to and different from ownership of tangible objects.
Intellectual Objects
intellectual object can refer to various forms or instances of intellectual property.
Intellectual property consists of “objects” that are not tangible.
Intellectual objects represent creative works and inventions, i.e., the manifestations or expressions of ideas.
Intellectual vs. Tangible Objects
Tangible objects are exclusionary in nature. Scarcity
Ex: If Harry owns a laptop computer (a physical object), then Sally cannot, and vice versa.
Intellectual objects, such as software programs, are non-exclusionary. Easily reprodueable
Ex: If Sally makes a copy of a word-processing program (that resides in Harry’s computer), then both Sally and Harry can possess copies of the same word-processing program.
Ownership of Intellectual vs. Tangible Objects
Legally, one cannot own an idea in the same sense that one can own a physical object.
Governments do not grant ownership rights to individuals for ideas per se.
Legal protection is given only to the tangible expression of an idea that is creative or original.
Intellectual property rights are grounded in two different types of views:
Natural rights and conventional rights
property right is a “natural right,”
which individuals are justified for the products that result from their labor, including intellectual objects.
property rights as a social construct
designed to encourage creators and inventors to bring forth their artistic works and inventions into the marketplace.
four schemes for protecting intellectual property:
Copyrights;
Patents;
Trademarks;
Trade secrets.
Copyright
Gives the copyright holder exclusive access to the work. Hence no one else can use it.
For a work to be protected under copyright law, it must satisfy three conditions in that it needs to be:
original;
non-functional;
fixed in a tangible medium.
Fair Use
Fair use means that an author or publisher may make limited use of another person’s copyrighted work for purposes such as:
criticism,
comment,
teaching,
scholarship,
research.
The First-Sale Doctrine in Copyright Law
It applies once the original work has been sold for the first time, when the original owner loses rights over the work of art.
Once you purchase a copy of a book, audio tape, painting, etc., you are free to give away, resell, or even destroy the copy of that work.
(This is for physical things, for digital making copies and distributing is illegal )
Patent Protections
A patent is a form of legal protection given to individuals who create an invention or process.
Unlike copyrights, patents offer a 20-year exclusive monopoly over an expression or implementation of a protected work.
Patents are granted to inventions and discoveries that satisfy three conditions:
usefulness,
novelty,
non-obviousness.
Trademarks
A trademark is a word, name phrase, or symbol that identifies a product or service
Trade Secrets
A trade secret is defined as
information used in the operation of a business or other enterprise that is sufficiently valuable and secret to afford an actual or potential economic advantage over others.
To qualify for a trademark
the “mark” or name is supposed to be distinctive.
Trade secrets can be used to protect:
formulas (such as the one used by Coca-Cola);
blueprints for future projects;
chemical compounds;
process of manufacturing.
The Labor Theory of Property
According to the labor theory, a person is entitled to the results of his or her labor.
The Utilitarian Theory of Property
A property right is not a natural right; rather it is a conventional right granted by governments.
The Personality Theory of Property
A property right should be granted because of the personality of the author that is invested in the creative work (regardless of economic considerations).
Stallman (2004) views software ownership
He believes that software should be freely available for humankind rather than restricted by property rights.
According to FSF, four “freedoms” are essential for free software, i.e., the freedom to:
- run the program, for any purpose;
- study how the program works, and adapt it for your needs;
- redistribute copies so you can help your neighbor;
- improve the program, and release your improvements to the public so that the whole community benefits.
The Environmental Movement: An Analogy for Cyberspace
Boyle points out that just as a political movement was necessary to save the environment from inevitable destruction, so too is an analogous movement needed to save the intellectual commons.
The Creative Commons
CC aims at providing creative solutions to problems that current copyright laws pose for sharing information.
CC expands the range of creative work available to others legally to build upon and share.
The CC menu provides four options:
Attribution—Permit others to copy, distribute, display, and perform the work and derivative works based upon it only if they give you credit;
Noncommercial—Permit others to copy, distribute, display, and perform the work and derivative works based upon it only for noncommercial purposes;
Derivative works—Permit others to copy, distribute, display, and perform only verbatim copies of the work, not derivative works based upon it;
Share alike—Permit others to distribute derivative works only under a license identical to the license that governs your work.
