A Public Enquiry into the Public Domain

The public domain is a vastly underappreciated resource - which probably explains why there have been so many successful assaults on it in recent years through copyright, patent and trademark extensions. But now, it seems, people are starting to wake up to its central importance for the digital world:

The new tools of the information society make that public domain material has a considerable potential for re-use - by citizens or for new creative expressions (e.g. documentaries, services for tourism, learning material). It contains published works, such as literary or artistic works, music and audiovisual material for which copyright has expired, material that has been assigned to the public domain by the right holders or by law, mathematical methods, algorithms, methods of presenting information and raw data, such as facts and numbers. A rich public domain has, logically, the potential to stimulate the further development of the information society. It would provide creators – e.g. documentary makers, musicians, multimedia producers, but also schoolchildren doing a Web project – with raw material that they can build on and experiment with, without high transaction or other costs. This is particularly important in the digital context, where the integration of existing material has become much easier.

Although there is some evidence of its importance, there has been no systematic attempt to map or measure its social and economic impact. This is a problem when addressing policy issues that build on public domain material (e.g. digital libraries) or that have an impact on the public domain (e.g. discussions on intellectual property instruments) in the digital age.

The European Union aims to remedy this lack with a study:

Call for tender: "Assessment of the Economic and Social impact of the Public Domain in the Information Society" was published today in the Supplement to the Official Journal of the European Union 2007/S 151-187363. The envisaged purpose of the assessment is to analyse the economic and social impact of the public domain and to gauge its potential to contribute for the benefit of the citizens and the economy.

A World Without Intellectual Monopolies...

...would be fine. And look, it's not just me:

The repeal of IP might create for it an additional cost of doing business, namely efforts to ensure that consumers are aware of the difference between the genuine product and impersonators. This is a cost of business that every enterprise has to bear. Patents and trademarks have done nothing to keep Gucci and Prada and Rolex impersonators at bay. But neither have the impersonators killed the main business. If anything, they might have helped, since imitation is the best form of flattery.

That was always true, but now there's another reason for believing it:

The Internet age has taught that it is ultimately impossible to enforce IP. It is akin to the attempt to ban alcohol or tobacco. It can't work. It only succeeds in creating criminality where none really need exist. By granting exclusive rights to the first firm to jump through the hoops, it ends up harming rather than promoting competition.

But some may object that protecting IP is no different from protecting regular property. That is not so. Real property is scarce. The subjects of IP are not scarce, as Stephan Kinsella explains. Images, ideas, sounds, arrangements of letters on a page: these can be reproduced infinitely. For that reason, they can't be considered to be owned.

BTW, the Stephan Kinsella paper referred to above, called simply "Against Intellectual Property", is also fantastic stuff. Good to know that the we few - we happy few - are growing in number. (Via Against Monopoly.)

A Short Trip Through TRIPS

The WTO's Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement has figured many times in this blog. It's increasingly clear that it represents one of the bastions of old-style intellectual monopoly protection. Indeed, one measure of success in re-framing the debate about intellectual monopolies would be when TRIPS is repealed, or at least superseded. Here's a handy guide to it, together with links to recent TRIPS-related news.

Intellectual Monopoly Madness - Trademarks Too

First it was patents, then copyright, and now it seems the IP mob are trying to pervert trademarks too:

it is insane to try and claim a general trademark over the phrase itself when it is divorced from a pre-existing good or service. At that point, it is no longer a tool to identify a commercial good, it then becomes a naked and virulent attempt to try and privatize language itself through a government enforced monopoly. Anyone claiming to be an attorney who endorses such nonsense out to be shamed out of the profession.

Trademark of the Blog

On Technorati's home page, there is a rather witty piece of self-deprecation: "55 million blogs...some of the have to be good." Not only must some of them be good, but you can also expect them to be on any subject. So it should come as no surprise, I suppose, that there is a blog devoted to the subject of trademarks. (Via Luis Villa's Blog.)

Four Legs Good, Two Legs Bad

The thought-provoking Against Monopoly blog makes an interesting contrast: copyright bad, trademark good. Not quite sure where a copyright-less world would leaves the GNU GPL, though, which depends on copyright to work.

Now It's Trademarks' Turn

I've written a fair amount about patent woes in these posts (some would probably say too much). And in many ways, patents are easy pickings, since the idiocies perpetrated by patent offices around the world are pretty obviously wrong, even to the person on the Clapham omnibus.

But trademarks are another matter. Rights and wrongs here are more slippery, since there is certainly commercial sense in allowing owners to protect brands that they may have invested considerable amounts to build up. But trademarks are not like copyright: it is not an artistic question of infringing on an expression of an idea, but rather a commercial issue of avoiding confusion in the marketplace.

So the news that the US is about to push through some changes to its trademark law that will radically re-shape what trademarks will do in areas outside commerce is bad indeed. The bill in question would remove traditional exceptions to US trademark law that concern news reporting and commentary; fair use; and non-commercial use. If these proposals become law, it will give owners of trademarks huge and totally inappropriate power over not just competitors, but the media and the public too.

Update: Here's what companies already get up to using trademarks.