The history of the methods by which the legal system deals with intellectual property is one of confusion and continuous change, especially recently. Although a certain amount of this is unavoidable, a large percentage of the recent problems have been the result of an ontology into which intellectual property has been shoe-horned, however inappropriately. At the time in which the intellectual property ontology was set up, it worked well, but technology has moved us to the point where a complete change will be required unless we want to have a legal system continuously in flux as technology changes become faster and faster. It turns out that such a new ontology is fairly simple to construct, and removes almost all of the problems with the extant, historically based, ontology. However even though this new ontology fixes most of the confusion which currently exists, it is still likely to have some flaws which will be made evident by future technologies. The hope is that this paper will not only give a better ontology for the current system, but that discussion provoked by this paper will produce an ontology of intellectual property that can survive even some of the possible future technologies.
History and Current State of Intellectual Property Law in the U.S.
Currently the legal system puts almost every aspect of intellectual property into one of three categories: patents, copyrights, or trademarks. Broadly speaking, patents and copyrights deal with protection of an idea from theft, or speaking more legalistically, the protection of the application/expression of an idea. Trademarks, on the other hand, deal with forgery/lying about the authorship of a product. The primary measure by which the adequacy of the ontological system is measured is the confusion between the different categories of the system, and it turns out that most of the recent problems with the intellectual property system have been the result of confusion between the two branches dealing with theft (i.e. copyrights and patents), and not with the distinction between theft and forgery. Thus, the remainder of this paper shall deal primarily with the ontological distinctions of copyrights vs. patents. However, before discussing the current confusion between copyrights and patents, it is first necessary to give a brief summary of the state of each category.
There are currently two legal documents which define the limits of patent protection. The first is in the Constitution where it is written that "The Congress shall have power … To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries". Although the Constitution is broadly written, the second set of legal documents, the actual statutes which Congress has enacted under this constitutional authority, have been considerably more restrictive. In particular, Congress has restricted patents from general "science and useful arts" to "any new and useful process, machine, manufacture, or composition of matter", and duration is limited to 20 years (with a few explicit exceptions). At first glance it may appear that even this is more open ended than it actually is; after all, the category ‘process’ is a broad one. However, in practice the courts have defined ‘process’ to be a physical process. In Diamond v. Diehr the Supreme Court ruled that "Transformation and reduction of an article ‘to a different state or thing’ is the clue to the patentability of a process claim that does not include particular machines". In similar fashion the courts have limited patents to exclude ‘laws of nature’, ‘natural substances’, and most importantly ‘abstract ideas’.
Also springing from the same paragraph in the Constitution, copyrights were originally intended to provide protection for artistic works. The reason for this particular distinction between patents (for utilitarian works) and copyrights (for artistic works) is historical but not strictly based in the Constitution. Patents sprang from the Royal Patents which European monarchs could hand out to traders in particular goods; these patents gave the trader a monopoly on the particular good, be it machine, commodity, or whatever. Copyrights, on the other hand, sprang from the de facto monopoly that printing guilds had over written material (i.e. art in the form of literature), and through the 19th century it was expanded to cover most other forms of art. As with patents, the Congress has provided a more concrete definition of the protection offered by copyrights. The primary statutory limitations of importance for the purposes of this discussion are: 1) the duration is currently the author’s lifetime plus 50 years, 2) copyrighted materials, unlike patents, do not need to be registered to be protected, and 3) in addition to works of art, both software and semiconductor chips are considered copyrightable (although the latter is only protected for 10 years). In addition to the statutory limitations there are limitations imposed by case law. The ones of primary importance for the purposes of this discussion are: 1) a copyright is only allowed on the expression of an idea, not on the idea itself, 2) from the above limitation, it has been decided that the look and feel of most software is not protected, since it is an embodiment of the idea itself.
Implicit Ontology of Current IP Laws and the Resultant Problems
From the relatively detailed description of copyright and patent protection given above, it is possible to define the ontology implicit in the current legal system. Of course, this ontology has problems in that it is neither well defined (i.e. some objects can fit into two different, supposedly mutually exclusive categories), nor all-inclusive. It is exactly these problems which are causing much of the current confusion within the legal system. The implicit ontology is as listed below:
1) Ideas (not protected in any way)
2.1) Artistic Expressions - Copyrightable
2.1.1) Written works
As with any ontological system, there are two possible types of problems for this breakdown. The first is overlapping categories, and the second is entire categories not included at all in the current ontology. It turns out that most of the current problems with this ontological system fall into the first category.
These overlap problems, in turn, can be broken up into two main types. The first is confusion between patents and copyrights and the second is confusion between ideas and applications/expressions. However, before it is possible to give a crisp description of these problems, it is first necessary to clean up the terminology. Within the legal system application and expression mean much the same thing, although the first is used in patents and the second in copyrights. However, these words are used in two very different ways. Sometimes application/expression is used to refer to an idea which is derived from some more basic idea (e.g. a ‘natural law’) . In this usage an application/expression is itself an idea. In other instances application/expression is used to refer to the generic physical manifestation of an idea (e.g. printed media). It is important for clarity’s sake to differentiate between these two usages, so for the remainder of this paper ‘derivative’ will refer to the former usage, and ‘manifestation’ will refer to the latter.
The confusion between patents and copyrights first started with the coming of the information age and is principally the result of new technology and hence new manifestations. As the ontology makes clear, copyrights and patents are not awarded based upon the idea itself, but instead are based on the manifestation of the [derivative] idea. In particular, in one of the first conflicts, White-Smith Music Publishing Co. v. Apollo Co. (1908), it was determined that piano rolls could not be protected by copyrights because they were not human readable (hence, not strictly art, but some combination of art and machine). Although the latest revisions to the copyright laws have attempted to rectify this with pieces of statute similar to the computer software statutes, it is at best a stop-gap solution. There are still an infinite variety of items which will not fit neatly into the redefined categories of manifestations. One example is a computer which is designed to create a story or a painting according to the creators general direction. Another example, and one with more consequences, is the general confusion over software in general - is it patentable or copyrightable? This last problem arises because artistic expression has become largely synonymous in the legal system with all written information not used expressly as instructions to build a machine or define a material process. One hundred years ago this association was reasonably accurate, but with modern technology it creates many problems. Thus, software falls under two separate categories in the current ontology - Copyrightable (as a written work which is not an instruction on how to build a machine), and patentable (as a machine, since software, when operating within a computer, is actually an integral part of the machine). Depending on how the application is written, the software will be denied either copyright protection or patent protection even though the underlying work is no different. And, this problem will only become more severe since today’s machine is tomorrow’s software as human beings learn to accomplish more with less. For example, one area which is likely to create difficulty in the future is genetics. After all, genetic code is very much like software in that it is a ‘written’ work that accomplishes little on its own (and so it is copyrightable?), but it is actually equivalent in some sense to the chemicals and structures it produces (and so it is patentable?)
The second overlap problem with the current categories is that between ideas and the expression/application of ideas (i.e. derivatives in this context). In the legal community it is assumed that these are two distinct categories. In fact the problem is that every idea is the derivative of some higher level idea. For example it is often assumed by the courts that the ‘look and feel’ of software is a raw idea (i.e. an idea which is not a derivative), but the code used to create that ‘look and feel’ is the derivative and manifestation of that idea. But, this is a far from obvious breakdown. Why isn’t the look and feel of a software program the derivative of an idea for a more generalized computer input/output scheme? Or, for patented items, who makes the decision as to whether a particular algorithm is a natural law, or is instead derived from a natural law? How is this decision made? For instance it is often claimed that F=ma is a natural law, but why is F=ma not considered the derivative of a more basic natural law that force influences velocity? The problem is that ideas in general and natural laws in particular form a loose hierarchy, not a distinct group separate from their derivatives. In fact today’s derivative is often tomorrow’s natural law/raw idea or vis versa. Or, for an example in the art world, the Oedipal story is one that today we would consider a raw idea, but at the time when it was first written it was probably considered very unique (i.e. the expression of some even more basic idea for a story about power and shame). Thus, just as with the confusion due to changing manifestations, there is confusion because the state of society causes the derivative status of an idea to change. With this continuously changing boundary, it becomes very difficult to decide what is protected and what is not. It is largely arbitrary where the line is drawn, and as might be expected of a largely arbitrary breakdown, the definition of what is a derivative, and what isn’t, is very unclear. This, in turn, clogs up the court system with inconsistencies, unclear decisions and drawn out arguments. For instance, the Ninth Circuit said that each decision about the non-literal components of program (e.g. look and feel) must be decided on the basis of the particular facts in the case, Johnson Controls, Inc. v. Phoenix Control Systems, Inc. (1989). While this ‘decision’ may be accurate (indeed, self-evident), it is also extremely unhelpful to the lower courts.
Finally, as mentioned at the start of the current discussion on the current ontology, there are entire categories of ideas and their expressions which are excluded from protection. For instance, business methods, no matter how useful or unique, are specifically excluded by case law - see Hotel Security Checking Co. v. Loraine (1908). What is the justification for this exclusion?
In summary, many of the problems of the current intellectual property system occur because the ontology is unknowingly tied to a moving target - human society. As human culture and technology moves, so does the definition of a ‘application/expression’. Thus, intellectual property law must always be changing to account for the new or changing manifestations.
Towards a Better Legal Ontology
Now that we have a better understanding of the problems inherent in the current intellectual property ontology, it is possible to design a better one. The obvious requirement for this new ontology is that it should be tied to items which are much more immutable than the ‘manifestations’ and ‘determination of derivative status’ that are used by the current system. And, if they must be tied to items that change, then that relationship should be explicitly acknowledged and well defined - many of the problems associated with the determination of derivative status occur because the ontology tries to ignore the fact that derivative status is not an absolute, but is instead a question of relativity and is also a function of society. However, before leaping into a new ontology, it is important to first clarify some terms.
In particular, the definition of ownership is critical for any discussion about property, intellectual or otherwise. There are two key aspects of any good definition of ownership, the first of which is a definition of what is ownable and what is not, and the second is a definition of the limitations that go with ownership. In the current ontology the division between ownable and unownable has only one overarching theme - raw ideas are not ownable. All other details are dealt with in a list-like fashion. As for the definition of limitations, this is almost exclusively dealt with in list fashion. This somewhat haphazard definition of ownership, which has occurred for largely historical reasons, is the ultimate cause for much of the current confusion. The best way to demonstrate this is to change the definition and examine the resulting intellectual property ontology.
In the proposed ontology, ownership should be judged as a function of three things. Control - If my family controls all aspects of a plot of land then my family can be said to own it. To the extent that my family does not control all aspects of this plot of land (for instance, zoning laws), then it can be said that my family does not have complete ownership. Time - If my family obtained the land 6 months ago by stealing it in a family feud, then even if they control all aspects of it, they can be said not to truly own it. On the other hand, if my family stole the land from the Native Americans 300 years ago, my family has a much greater claim on ownership than in the first case. Intent - Time can be negated by intent. If at the time we obtained the land from the Native Americans, they intended to cede all control to my family immediately, then my family can immediately claim ownership. No 300 year wait is necessary.
Having defined ownability to be function of control, time and intent, it becomes obvious that not only does this concept of ownership correspond to our intuitive understanding, but it also allows for ownership of intangible items as long as the three conditions are met. This is in direct contrast to the extant intellectual property definition of ownership, which says that raw ideas, because they are intangible, are unownable. It might appear that raw ideas, and other objects which are duplicated effortlessly, are unownable because they violate the condition of control after they are public. However, before they are made public, ideas can be the most controlled object known to man. The only limitation on this control is personal desire, and the degree to which no one else is likely to ever have the same thought. Thus, if I have an idea which no one else is likely to have in the near future, and I publish it with the obvious intent to maintain control, then I own this idea. On the other hand, if it is an idea that many others are likely to have, or if I publish it with the obvious intent of loosing control, then I either did not ever own it because I never really controlled it, or I gave up ownership when I made clear my intent to cede control. It has been argued in "The Ontology of Cyberspace", a dissertation by David R. Koepsell, that there is an a priori right to ownership for physical objects, but not for intangible or easily duplicated objects. The reasoning, which is seductive, is that the a priori right to ownership cannot apply to cultural items since the a priori right to ownership "arises not through the enactment of laws or the creation of cultural norms, but through various acts and relationships amongst individuals and other objects" However, this is a basic misunderstanding of ideas or other easily duplicated items as cultural items. Ideas or easily duplicated items do not owe their continued existence to the culture, only individuals. After all, even if I moved to Mars and all cultural contexts were removed, I would still have many of the same ideas. The interpretation might change - the art that I create, and that I used to judge abominable, might become my Mona Lisa. But, the underlying object is unchanged. Ideas in this sense are just as immutable as physical objects, and the a priori right to ownership applies to them as much as to other immutable objects. After all, what could be more a priori (used in the conventional sense rather than the more strict philosophical sense as used by Koepsell) than the right to own the most personal and unique things that I have - my ideas.
The only practical problems in this concept of intellectual property are ones of degree, although this is not really that different from determination of ownership for more concrete items. In particular, control, time and intent are not black and white issues either for ideas or for more concrete objects. However, the legal system has already set some criteria for determining the boundaries on these issues. It has chosen to set them to maximize the benefits to society, which coincidentally allows them to broadly obey the ontology implicit in this new definition of intellectual property. Thus, an idea which is very wide (and which would therefore not be very controllable) is given wide protection, but for a limited period of time (i.e. patents for 20 years), reflecting the fact that ownership of such an idea is inherently limited. (i.e. If person A had not arrived at the idea, then person B would have because the idea is so wide that someone would have happened onto it.) On the other hand, more narrowly interpreted ideas, such as a work of fiction, which no one else is ever likely to author, are protected for a much longer period of time since the originator’s control is much greater than for the wider idea. And, the widest ideas of all, over which no one can claim unique authorship, are afforded no protection at all. The resultant ontology is a simple one. Every single item in the universe of physical objects and ideas fits somewhere on the line which has completely ownable (judged primarily by controllability) on one end, and completely unownable on the other end. The rights and limitations which accrue to the owner are a function of where on the line the object exists, although as a practical matter, the courts may choose not to enforce ownership for trivial or non-useful items (e.g. a dust mote in the physical universe, or a completely random/non-useful idea in the universe of ideas). The primary advantage to this ontology is that since the organization by application/expression is avoided, the system is much less likely to be affected by changes in human knowledge or technology. It also makes it clear that the distinction between patents and copyrights is not an absolute one, but is instead a matter of degree. Thus it avoids all of the problems listed in the previous section for the extant ontology.
Practical Considerations on the Implementation of the New Ontology:
The primary concern with the current implementation of intellectual property laws, besides the confusion described previously, is that patents are notoriously difficult to enforce. This is the result of two different things. The first is ontological in nature: Patents deal with the universe of ‘true’ ideas, whereas copyrights historically deal with the complete universe of ideas, true or not. As a result the patent universe is much more crowded with people, and there are likely to be many more infringements. The new ontology does not directly help to fix this problem, although it does make the cause of the problem much more obvious. If the patent enforcement problem is indeed much more arduous than it was a half century ago (which is not actually clear), it can only be because the universe has become more densely packed (density=ideas/people), which in turn means that each individual must, perforce, have less control over any given idea. The problem (assuming there is one) is that the courts have not recognized this fact and have continued to grant patents which provide protection as wide as they did when the universe was less dense. Instead, the courts should be asking the question: "Given the situation at the time of the patent filing (the state of the technology, and the number of people working in the field), how many other people were likely to discover the idea within the next six (?) months?". If the answer is more than 2 or 3 (?) then perhaps the idea is too wide, or the duration of the patent is too long.
The second reason for the difficult enforcement of patents is that the government thinks it is necessary to "grant" a patent, as opposed to just making the information public as part of the patent process. Thus, no matter how obvious, trivial or uncontested the patent, the application must be judged. This in turn leads to excessive bureaucracy and costs. In contrast, the government does not "grant" copyrights. Instead it is up to each individual to detect infringement and enforce the copyright. This difference between copyrights and patents is probably a legacy of the fact that originally written works were much more widely available than information about patents. Thus it was completely practical to allow copyrights to be enforced by the individuals affected, but it was not practical to do the same with patents. However, technology has made it possible to make patent materials as widely available as copyrighted material (e.g. patents could be put in a searchable on-line database). Thus, the arduous process of "granting" patents should be made obsolete, and instead the government should just set up a registration and disclosure system.
The proposed new ontology provides insights not otherwise available into the reasons for many of the current problems with the intellectual property system, and if the new ontology were incorporated into the legal system, it would remove many, if not all, of the current inconsistencies. In doing so it would obviate the need for even more radical reforms such as the one proposed by Koepsell in the previously mentioned essay. In this work it is pointed out that the primary problem with software is piracy (the exact duplication, and subsequent resale of a software work without paying any dues to the originator), and that patent protection, a notoriously difficult process, is inadequate for preventing this. However, many software authors are getting patent protection because of its wider protection, if lesser duration. The concern is that this may lead to significant problems of enforcement. However, under the new ontology it becomes clear that the primary difference between copyright and patent protection is just the width of the ideas protected, and patent protection subsumes copyright protection since patent protection is wider. Thus, for the purposes of combating software pirates, it is not necessary to go through a ‘normal’ patent suit. Instead a suit that looks much more like an ordinary copyright suit would be sufficient to prove infringement.
In conclusion, the new ontology solves most, if not all, of the current problems within the intellectual property system, but even it is not immune to future problems. For instance, one area that is sure to cause problems is the fact that sometime in the relatively near future there will be ‘ideas’ produced which are not understood by any human or group of humans. Currently this process is in its infancy, but there are already instances where it is happening. One example is that neural nets are being used to solve more and more processing problems, however the neural nets solve the problems without any input from humans, and in fact it is extremely difficult to reverse engineer the ‘ideas’ from the solution at which the neural nets have arrived. Thus, it is quite possible that two different neural nets will solve the same problem, but it will be impossible for humans to determine whether they solved it in substantially different ways or not. Given the fact that social institutions have a history of being a step or two behind technology, maybe we should just be happy with the new ontology, which at least brings the legal system up to date with the current technology and provides clear guidance for incorporating most new technologies? Or maybe not?
Hare, Clare K., Nov 7, 1996, "Critique of David R. Koepsell’s Draft Dissertation", A Letter to David R. Koepsell
Koepsell, David R., 1997, "The Ontology of Cyberspace", A Dissertation, State University of New York at Buffalo, Dept. of Philosophy
Miller, Arthur R. and Davis, Michael H., 1990, Intellectual Property - Patents, Trademarks and Copyright, St. Paul: West Publishing Co.
U.S. Patent Act, Sec. 101
Diamond v. Diehr, 450 U.S. 175 (1981)
Hotel Security Checking Co. v. Loraine, 160 F. 467 (2nd Cir. 1908)
Johnson Controls, Inc. v. Phoenix Control Systems, Inc., 886 F2d 1173 (9th Cir. 1989)
Plains Cotton Co-op. Ass’n of Lubbock, Texas v. Goodpasture Computer Service, Inc., 807 F2d 1256 (5th Cir. 1987)
White-Smith Music Publishing Co. v. Apollo Co., 209 U.S. 1 (1908)