|Every time intellectual property comes up, there seems to be two basic positions that get taken. On one side is the position that intellectual property law is useful. On the other, that it is broken. It seems to me that both sides are right: the concept is useful, but the implementation is broken. IANAL, but here is my understanding of the current state of things, as well as my ideas about how to fix them. If this sounds reasonable, what is the best course of action to take? If it doesn't, what's wrong with it?|
There are four fundamental types of "intellectual property," and each has to be dealt with in its own way:
Trade secrets are IP that is fundamentally protected by not telling anyone about it. There are legal protections against espionage, but not independent invention or accidental disclosure. There don't seem to be any major complaints about how current law handles this.
Trademarks are signs of brand identity, and cannot be used by direct competitors. The same trademark can be used by multiple companies so long as they operate in distinct markets (by industry or location). The primary complaint about the law here seems to be around what can and can't be considered a trademark. For example, can a fictional character's name or appearance act as a trademark? Also, many companies are overzealous about sending C&D letters to protect their trademarks, for fear of losing them. All in all, this seems to work relatively well, especially relative to copyrights and patents; I have no suggestions to improve them at this time.
Patents exist to protect useful inventions. The fundamental idea of a patent is that an inventor agrees to teach the industry about his new invention in exchange for a time-limited monopoly on its use. The current patent system fails to live up to this ideal in several ways. In practice, patents provide no real education because the language they are written in is too obtuse for anyone other than a patent lawyer to understand. Also, the current practice seems to be to blatantly ignore patent infringement until the patent is almost expired and then sue for several years of damages. Not knowing about the existence of a patent should be a valid defense against a patent infringement suit, and it should be the patent holder's responsibility to make sure that most other people in the industry know about the patent and how the invention works. Also, patents should be voided if their inventors do not actively seek to enforce their monopoly.
Copyright protects creative expression. The justification for copyright is to increase the value of creating creative works, so that society has a richer culture. The current mechanism is through a (theoretically) limited-term monopoly on production of copies of the work. As copying technology has evolved, this mechanism has started to become infeasible. I propose that this mechanism should be replaced with a compulsory licensing scheme. All technological barriers to making copies of creative works should be banned, but technologies to determine who has a copy should remain legal. The copyright office should maintain a consumer-facing system through which anyone can buy a personal-use license for any registered work at standardized rates, and distribute the funds to the copyright holders. Copyright holders may reduce the cost of a license as much as they like, but there will be a statutory maximum. The maximum rate should be determined by the type and age of the work such that it is not too high to be prohibitively expensive to the average consumer nor too low to encourage creators. All licenses sold will be both perpetual and transferrable. In any sale, it is the seller's responsibility to make sure that the copy sold is properly licensed.