Copyright is a form of intellectual property. To what extent should intellectual property be treated like real property? PDF

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Copyright is a form of intellectual property. To what extent should intellectual property be treated like real property?...

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MMCC2014 Emily White 36430350 Copyright is a form of intellectual property. To what extent should intellectual property be treated like real property?

Copyright is a form of intellectual property and it is crucial to ensure it is protected to foster innovation. Intellectual property is protected by the law to ensure businesses or individual ideas and creations are secured. This essay will analyze the extent in which intellectual property should be treated like real property and the different theories that further investigate into why. This essay will more-or-less investigate the positives and negatives with treating intellectual property like real property and draw a conclusion from those findings.

Intellectual property is protected by the law to ensure businesses and individuals earn recognition of their ideas and creations as well as the financial benefits. Without this protection, creators will not receive the benefits of their inventions, which will decrease their motivation to develop new research and projects. Intellectual property encompasses a variety of legal rights to secure the creative effort that people have is recognised to be their own work. Intellectual property includes four different types; patents, trademarks, trade secrets and copyrights. Copyright protects individuals’ or business’ original works legally under the Copyright Act 1968 and grants the creator full recognition and exclusive rights for their work within a limited period of time, which is usually 70 years after the death of the creator. Copyright was essentially formed to promote creativity and learning as it motivated people to indulge in their creative minds with the security that they would get full credit for their ideas. In SLS’s article, they analyse further into the psychology of this point in regards to how creators will only be motivated to invent different forms of creations if they know their inventions will be recognised “...the thinking is that creators will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions. In this view, absolute protection may not be achievable, but it is the goal” (Lemley, M.A. 2005). As Copyright, a form of intellectual property is intangible, it becomes increasingly difficult for people to regard intellectual property as real property. The fundamental difference within both intellectual property and real property is within the distinctiveness of use; “if you eat my apple, then I cannot. But, if you take my idea, then I still have it” (Collins, S. 2006). Intellectual property consists of an unavoidable feature of being non-rivalrous, which means the consumption of a good by an individual does not decrease the amount available for someone else. Property talk, also referred to as the economic theory is an increasingly recognised term as it is the ways in which intellectual property; such as copyright, is progressively being discussed legally as real property. The degree in which property talk has been adopted by the courts and scholars is extensive and the concept that intellectual properties is the same as real properties is circulating media

MMCC2014 Emily White 36430350 companies as they seek greater control over copyrighted materials. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. The Neoclassical Institutional Economic Property Theory is a propertarian approach that treats intellectual property like real property to ensure the artist feels as though their work is secure and also strengthens the financial interests with their exclusive mistreatment of works. The basic idea with this theory is that “incomes are earned in the production of goods and services and that the value of the productive factor reflects its contribution to the total product”. Therefore, this approach is admirable by artists as it offers them security for their work and will then be used as motivation for artists to continue on creating. The advantages of intellectual property being treated like real property is extensive. Protecting ones’ intellectual property can help enhance the market value of the business through the sale, commercialization and licensing of the protected goods and services of the business and will increase the likeliness of the business’ value appreciating. Another benefit of intellectual property is through business’ ideas being turned into profitable assets because when the copyrights are licensed, it can lead to additional income and a consistent stream of royalties. Intellectual property will also market a business’ goods and services as it creates an image for the business; such as trade marks, logos and the general design of the products, which will ultimately differentiate particular business’ goods and services from one another. Overall, intellectual property rights allow businesses to protect their goods and services and ensure their products are authentic and easily recognised by consumers.

However, scholars argue that copyright being perceived as real property is a bad thing. In Collins, S. article, he refers to how the “propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property”. Collins, however disagrees with this as his article goes on to argue that “If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm.” Multiple scholars have agreed with this point as they critique the copyright laws and reasons as to why they’re not as successful as the courts desire. New Media Rights illustrated an article that analyze the major criticisms of the copyright laws in the US. The critiques are regarding how copyright laws actually don’t perform their intended purpose of helping the public because copyright laws are seen to prioritise the financial interests of business’ at the expense of the public, which was who the laws were predominantly created to protect. Another critique is that the laws are so broad that they actually suppress an individuals’ creativity as opposed to encouraging it. As the laws surrounding copyright is a risky zone of uncertainty and to determine whether it’s legal or not is dependent on the fair use and whether the new work qualifies under it. This vagueness and potential of being sued for breaching the copyright laws will stop people to create new work and ideas. Another critique is the complication and the

MMCC2014 Emily White 36430350 unclear nature of the laws allows for them to be abused by business’ that have connections to lawyers. One of the final critiques the News Media Rights article stated was the complication and expense for individual’s to actually implement the rights that they are granted. Even though the creators’ rights are so clear, the financial burden to proving a copyright is extensive and the difficulty in actually doing so is high (Neill, A. 2017). Another article that further critiques copyright and analyses if copyright should be treated like property is in Terry Hart’s article on ‘Should Copy Right Be Treated Like Property?’. Hart addresses how the present copyright principle has issues that is believed to have stemmed largely from the use of “property talk” in policy debates. ‘Property Talk’ is supposed to implore old entitlement to strong rights of exclusion, where the rights are automatically permitted to the creator’s family members (Hart, T. 2010). A similar argument was also stated in Steve Collins “’Property Talk’ and the Revival of Blackstonian Copyright”. Collin’s states how ‘Property Talk’ is believed to encompass possessive and exclusive traits, and when compared to the practical foundations of copyright, it is difficult to reconcile with. Copyright has been used to an extreme advantage for other artists as they have used previous materials and transformed them into samples, mashing and appropriative art. All of these successful transformative materials are incompatible with the propertarian approach as this approach focuses on the freedom and creativity to the mediator’s licensing fees that are often beyond the budget of the artists. Therefore, property talk increases the likeliness for transformative works to be deemed as an exclusive form of creativity as only artists that are financially comfortable can afford the licensing fees (Collins, S. 2006). Collin’s also includes a quotation from Siva Vaidhyanathan to further argue how property talk has intruded on the discourses relating to copyright and risks the useful foundation of the law, which offers the development of free and various forms of creative expression; “copyright... was not meant to be a ‘property right’ as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (Collins, S. 2006).

Stanford University conducted research concerning property law in their article ‘Property, Intellectual Property and Free Riding’. Their argument towards the benefits of intellectual property law is the likeliness that creators “will not have sufficient incentive to invent unless they are legally entitled to capture the full social value of their inventions”. (Lemley, M.A. 2005). In order for intellectual property laws to be successful, the idea that intellectual property is a form of real property rather than a “form of legal protection designed to deal with public goods problems” is to be completely supported. However, the article firmly states that “treating intellectual property as “just like” real property is a mistake” as intellectual property should be treated as its traditional practical form to help balance the artists control with their inevitable competition. In Lisa Blanning’s article, “Copy Right: Imitation, Inspiration, and Creativity”, she

MMCC2014 Emily White 36430350 provides the positives that copyright has offered within the world of creativity and examples of how copying has aided towards more interesting work. Blanning’s started off with the recognisable concern that all artists steal, where she goes onto explaining how “great artists take ideas from others and make them completely their own (Blanning, 2016). She also refers to how edits and remixes are an example of copying. DJs are a prime example of edits and remixes as their music is often preexisting tracks that are edited and remixed so they become more dance friendly. Another example of copying being used creatively is through Plunderphonics. This term refers to a music genre where tracks are created by sampling recognised music. An artist that works in the Plunderphonics sphere is Vicki Bennett. She explains, “I like using preexisting material because it allows me to sew and edit a patchwork of information, to use as material – to transform, pick up, put something down and recombine with other elements...” The final point Blanning specified was the idea of “Conceptual Copying”. Conceptual copying is a term where a writer extensively thinks about a project and goes “above and beyond” to ensure they are writing what the public want (Blanning, 2016). Blanning’s article offers an interesting perspective into the reasons as to why copying aids creativity and should be acceptable to an extent as it broadens artist’s opportunities to create more interesting work.

These various critiques from intellectual property scholar’s regarding the propertarian paradigm used by courts concerning copyright analyses the detriments copyright has on the creativity and freedom of artists. The intended purpose of the propertarian approach is to ensure artists that their work will remain secure and that they obtain full ownership. However, the copyright laws don’t actually serve their foundational purpose of helping the public. The vagueness of the laws actually suppresses an artists’ creativity rather than encourage it. The broadness of the laws become too complicated that they can be easily abused by business’ and individual’s that have easy access to lawyers. Therefore, the extent in which intellectual property should be treated like real property is minimal as “treating intellectual property as “just like” real property is a mistake” (Lemley, M.A. 2005) as it has unfortunately decreased artists’ motivation to create more work.

MMCC2014 Emily White 36430350

References

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Lisa Blanning, (2016) 'Copy Right: Imitation, Inspiration, and Creativity' Ableton.com.

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Collins, S. (2006). ‘Property Talk’ and the Revival of Blackstonian Copyright. M/C Journal, 9(4). https://doi.org/10.5204/mcj.2649

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Hart, T. (2010). Should Copyright be Treated like Property? [online] Available at: https://www.copyhype.com/2010/10/should-copyrightbe-treated-like-property/ [Accessed 20 Oct. 2021].

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Neill, A. (2017). What are the major criticisms of the copyright laws in the US? | New Media Rights. [online] www.newmediarights.org. Available at: https://www.newmediarights.org/business_models/artist/what_are_m ajor_criticisms_copyright_laws_us.

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Lemley, M.A. (2005). Property, Intellectual Property, and Free Riding. [online] Stanford Law School. Available at: https://law.stanford.edu/stanford-lawyer/articles/propertyintellectual-property-and-free-riding/ [Accessed 26 Oct. 2021]....