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Intellectual Value Laws: a Sensible
Alternative to Intellectual Property
V.I. Chukharev, V.Sh. Kaufman
KaufmanICT, Helsinki, Finland
http://www.kaufmanict.fi/
e-mail address: antispam@vk@kaufmanict.fi
An approach to the renewal of the intellectual value laws is proposed, taking into account the super
dynamism of the modern world and the latest technological capabilities. We formulate the ideal final result
of the update and justify a refusal to recognize the intellectual value as an object for ownership. We
propose basic laws, ways of smooth putting them into effect, and authorship automatic monitoring options.
Keywords: Intellectual Property, Intellectual Value
I. INTRODUCTION
We live in a super dynamic world. The laws of our life
should comply with the super dynamism of the world.
In this article we suggest to radically rework the intel-
lectual value laws. The necessity of the renewal is long
overdue.
Problem relevance and urgency
The right to Intellectual Values (IV) is currently related
to laws of Intellectual Property (IP) [1]. The latter is
criticized from different sides.
Both the term ‘Intellectual Property’ and the essence of
the laws is under the fire. The term is questioned [2] at least
for inconsistency of the approaches used in the different
laws comprised by the term.
There is an opinion that IP laws played a negative role
during whole history of their existence [3, 4].
Even political parties have been created, and they declare
disagreement with the rules currently in force, especially in
the area of software patents. For example, ‘Pirate Parties’
have had their representatives in European Parliament since
2009 [5].
Quite influential Free Software Foundation [6] and Open
Source Initiative [7] are also somewhat in opposition to
Intellectual Property.
And even some professional lawyers doing their business
in the area of IP become fascinated critics of the existing
laws. Stephan Kinsella created a remarkable collection of
materials on this subject [8].
On the other hand, the existing state of Intellectual
Property Law is protected by powerful supporters starting
with the World Intellectual Property Organization, WIPO
[9].
Crux of the problem
Very briefly, the legislation is counterproductive too
often.
In more details, the problem is that the laws are
unsatisfactory in form
o they are clearly prohibitive
unsatisfactory in substance
o they contradict the stated objectives
o they contradict the interests of society as a whole
o they contradict the interests of the key entities of law
unnecessarily complicated
difficult to understand
difficult to comply
instead of the supposedly solved problems they create
even more serious problems.
For example, the IP laws hinder creation of intellectual
values by requiring the creators-authors to obey the strict
limits imposed by the exclusive right holders; they generate
‘piracy’ and degrade the moral climate in society by
provoking violations of an unacceptable law.
Concepts and terms
Intellectual Value is a product of intellectual creativity.
Creator (author) is the creator of an intellectual value.
Consumer (user) is the user of intellectual values.
Creator as consumer is the creator in the creative
process utilizing intellectual values created by his
predecessors.
Right holder is a legal entity having the right to restrict
the rights of other users of the intellectual value.
Entities of law of Intellectual Values are creators,
consumers, and those right holders which are not the
authors.
General rules are legislation on the intellectual value
rights in general.
Final goals
1. A compromise between interests of creators and
interests of consumers of intellectual property so that
it eases legitimate creation of intellectual values
it eases legitimate use of intellectual values
o a creator does not fear (better, is interested)
to report publicly on their findings
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to use any results of the predecessors
o a consumer has a legitimate opportunity
to use any intellectual values
of common heritage, for free
in other cases, so that ‘piracy’ loses any
meaning as a phenomenon.
2. Simplicity and clarity of the laws on intellectual
values.
3. Prevention of blatant injustice towards creator and
consumer.
4. Possibilities for automatic monitoring of author rights.
5. Smooth transition from current legislation to renewed
laws on intellectual values.
Goals 2-5 in essence are fundamentally important
constraints on the nature of the compromise, defined in the
goal 1.
Area of applicability
We consider the general properties of intellectual
values and offer solutions oriented, in principle, to any
intellectual value, the essence of which can be
represented in digital form.
We rely mainly on our personal experience in science,
technology, and programming.
We admit that some of the classes of intellectual
property, which we are not familiar with, can be so
specific that our ideas will be partially or completely
inapplicable to them.
Ideal Final Result
The creator gets maximum freedom and enough interest
for creativity.
o In particular, borrowing (using the previously created
intellectual value) is not limited.
The consumer has maximum freedom to consume
intellectual values.
o In particular, a creator as a consumer gets more
freedom to use results of the predecessors.
Creator has responsibility to the user, both moral and
financial.
Creator is rewarded depending on usage of the
intellectual values
o taking borrowings into account.
II. PROPOSALS
Author’s rights and obligations
Authorship of an intellectual value gives the right for
material and moral reward
o in the event of public interest in the intellectual value.
Authorship of an intellectual value does not give the
exclusive right to it after the value becomes publically
known.
o In particular, it does not give the right to arbitrarily
restrict access to it.
o In other words, access rights to intellectual values are
governed by the general rules and not by entities of
law.
The damage caused to the consumer in the correct use
of intellectual property shall be compensated by its
creator.
o If the creator has received for it from the consumer
adequate material reward.
The correctness of the use and the adequacy of the
compensation can be challenged in court.
Intellectual value is in the public domain from the
moment when it becomes publicly known.
o At this point, creator
loses the right to control its utilization
loses the ability to effectively monitor the usage of
the created intellectual value
begins to be responsible for the damage caused by
the created intellectual value.
Financial reward for the creation of intellectual value is
set by the general rules
o the reward value depends on the level of public
interest
o limiting the maximum period of time for reward.
Moral rewards for creators are established by the
general rules
o affecting the reputation of the creator
o not limited in time.
Intellectual value may be copied entirely in the
following cases:
o a link to the entire object and its creator is provided
o the fact that it was previously known is explicitly
stated.
Copying does not create a new intellectual value,
even if insignificant changes are made.
Significance of changes can be challenged in
court.
An attempt to fake a new intellectual value with a
copy of an existing one is plagiarism and shell be
punished.
Intellectual value may be quoted (copied in part) in the
following cases:
o a link to the entire object and its creator is provided
o the fact that it was previously known is explicitly
stated
o the fact that it was not clarified whether this is
previously known, is explicitly stated
in the latter two cases, in the event of public
interest, the emerging compensation first is used for
a search of the predecessors. Reward shall be paid
only to the true creators taking the results of the
search into account.
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Trademarks (and brands) as intellectual values
A trademark is a specific intellectual value
o it consists of a designation and a mapping on the
designated object
o the designation by itself may well be a separate
intellectual value
with its own creator and creator’s individual rights.
A trademark is registered in a specific way
o the sole purpose of the registration is to define and
secure an unambiguous identification (exact
designation) of objects by the registered trademark (a
unique connection of the designation with the
designated objects).
The use of a registered trademark to indicate another
object, not intended in the registration, shell be
punished
o similarly to prosecution for lying and for fraudulent
misrepresentation.
The right to use trademarks correctly, including the
registered ones, is in public domain
o as a consequence, a registered trademark cannot be
sold.
III. AUTOMATIC MONITORING OF
AUTHORSHIP (ACCOUNTING FOR
REGISTRATION REVOLUTION [10])
As a rule, for intellectual values available on the web,
the reward is paid automatically.
Conditions for obtaining the reward are described in
contracts specific to the type of the IV object and the
nature of authorship.
Details of the contracts can be challenged in court.
The technical capabilities of the specialized network
services [10], including the network archives of
intellectual property, are capable to:
o automatically affect the reputation of network
objects
which try to break the rules of copying and citation
o automatically affect the reputation of the real-world
legal entities
o automatically avoid infringement of copying and
citation rules
prevent the publication of copies and quotations
that violate common rules.
Possibility of authorship monitoring under Registration
Revolution
The moment of the publication of an intellectual value
is recorded automatically.
The creator (publisher) is recorded automatically.
Reputation is generated automatically.
Forgery of intellectual values is detected automatically.
It’s beneficial for creators to explicitly refer to the
predecessors to protect reputation.
The possibility of plagiarism is detected automatically.
o Substantial consideration is necessary only for
allegations of plagiarism from specific legal entities.
o False accusations of plagiarism affect the reputation
of the accusing part.
o Sufficiently grounded allegations of plagiarism,
particularly recognized by the court, affect the
reputation of the creator.
Utilizing takes into account the creator’s signature for
payments.
Payment is distributed automatically using references to
the predecessors.
The combination of reputation and technology provides
functioning of the updated laws and automated rewarding.
Intellectual value registering scheme
Invent.
Describe.
Sign (by electronic signature).
Register
o placing a description of the intellectual value into a
proper intellectual value registration system
answering about the contributions of possible
predecessors when prompted.
Everything is ready for use (with a reward guaranteed
by the general rules).
Technical problems
Accounting for the number of uses.
o Question is relevant to such intellectual property as a
software program (executions) or music (number of
listening times).
o Possible solutions:
Restrict accounting by the number of downloads.
Build-in into the registered object a referral link,
without which the use is impossible.
Use ratings
e.g. obtained from polls and surveys.
IV. GRADUAL TRANSITION OPTION
All right holders continue to enjoy existing rights,
including inheritance, until they expire.
All right holders are entitled to transfer their rights
under the new law.
At the initial phase of the transition, both laws are in
effect.
Creators may for some time, for example 5 years,
choose the version of the law, which they prefer to use.
In the second phase, say, of 15 years, newly obtained
rights shell not be transferrable to other owners.
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At the end of the transitional period, the ability to
choose the old law shell disappear. The old law shell be
completely taken out of operation after the expiration of
the last exclusive right obtained under the old law.
At the end of each phase of the transitional period, the
wording of the law, the size of rewards and the duration
of transitional stages should be assessed again. Possibly,
it will be useful to keep both versions of IP and IV laws
in action for an indefinitely long time, like the co-
existence of private and public roads (see Discussion
below).
It may be beneficial to introduce new laws first on a
limited area. That may be, for example, a special
economic zone, preferably with universities and
research institutions. Another choice would be an
individual country.
V. DISCUSSION
Let’s look at the essence of the proposed upgrade of the
right to intellectual values in some more details.
Why an openly known intellectual value is public
domain.
This is rational: it helps to reconcile the interests of
entities of intellectual value laws in a simpler way.
o This does not deny the specific rights of authors on
the results of their work.
It is the nature of these rights we are discussing.
Taking into account, among other things, that the
return of a publicly known intellectual value into
a private area is almost impossible.
This is far from blatant injustice, especially in relation
to actual creators.
o Justice itself cannot be our goal [11], because it’s
understood by the entities of law differently.
Already for this, we limit ourselves to only a desire
to avoid blatant injustice.
The last occurs often in current situation with the
intellectual values.
o The creators should bear in mind that, in terms of,
say, the consumer, an important role in the results of
their intellectual efforts plays a context, i.e.
education, culture, and living conditions in general.
Context is often not only (and not so much) the
achievement of the creator, as it is public domain.
o Quite often, the fact and the nature of authorship can
reasonably be disputed.
o For many of the creators, a relatively simple way to
get a reasonable reward would be preferred over a
relatively complicated and expensive way to get
perhaps more substantial reward.
The copyright (the exclusive rights associated with
financial reward) is convenient to consider as temporal
restrictions on the use of intellectual values as the
public domain values.
Why creator should be responsible for creations from
announcement time
Responsibility must act at the moment of creation, at
least because after release the application utilization
cannot be effectively controlled.
o Examples of at least strange attempts to restrict it,
from pharmaceutical companies: Pfizer blocks drugs
use for executions [12].
By this logic, "Kalashnikov" should be allowed to
restrict the use of machine guns, for example, only
to kill "unwanted" people.
On the ineffectiveness of such a restriction is easy
to guess.
Concern "Toyota" should, presumably, prohibit
drivers to exceed the speed limit, and even more so
to get into traffic accidents with bad outcome.
The inefficiency of this restriction is also evident.
The point here is not attempting to ensure fairness, which
is impossible in principle, but the need to stimulate high-
quality creations (intellectual property, products) and to
protect consumers from dishonest or incompetent creators.
Differences of the updated approach (analogy with
roads)
Legislation on the use of roads is a useful analogy that
helps to understand the difference of our approach to
legislation on intellectual values from the existing
approaches to intellectual property laws.
Current legislation has an attitude toward intellectual
values close to attitude to private roads. Terms of use of a
road is completely determined by the owner: he can
completely prohibit travels or arbitrarily set the size of
payment, etc.
Our approach sets the attitude to the intellectual values
similar to the attitude to the public roads. The way of their
use is determined by general rules. Expenses on the
building and maintenance are taken from a variety of fees
and taxes, not obligatorily intended solely for this purpose.
Building and maintaining in order the network of public
roads is one of the major infrastructure component,
stimulating economic development.
We hope that the proposed updated laws on intellectual
values will also become an important component of
infrastructure that encourages economic development.
The main advantage of our approach to legislation on
intellectual values is the elimination of artificial obstacles
for the creators and consumers.
Another important advantage is the reduction of the
frequency and severity of conflicts of interest.
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Criticism of the existing legislation motivation
The traditional purpose of intellectual property laws is
stimulating innovations and the development of society. For
example, the US Constitution puts it so: "promote the
Progress of Science and useful Arts" [13].
Unfortunately, in the discussion of the topic, this
acceptable although vague aim is often replaced by a
mixture of the goals and means.
For example, the wording from Wikipedia [1]: "through
the provision of protection to create an incentive for the
various manifestations of the creative effort of thinking."
This formulation secures the provision of protection as a
target or a mandatory means, leaving no room for
alternative solutions.
Many popular arguments in support of existing
approaches are entirely unconvincing.
For example, "a person has a natural right over the labour
and/or products which is produced by his/her body" [1].
The right over products might seem natural, when
everything was produced for own consumption, or by
craftsmen in small-scale production. In the industrial
production, products do not belong to the workers
producing them even for a moment. In other words, in
today's world, said ‘natural law’ does not work in the field
of wealth. It is not clear why it should work in the field of
intellectual value (which, incidentally, has also gone very
far from craft).
Further on, "Every man has the right to turn his will upon
a thing or make the thing an object of his will, that is to say,
to set aside the mere thing and recreate it as his own" [1].
However under the current law, the result should be
checked for violation of someone's exclusive rights for a
similar result, before using it. Otherwise, one can get
punished. That is, the imposed limitation on the right to
select and alter a thing pretends to be its support.
Why trading trademarks is bad
The rules of our life are extremely complicated.
Promoting simplification of the rules [14] is generally
appropriate, rational, and due.
Adding complexity into the rules of life in the interests
of a fairly narrow group of subjects (those who register
trademarks and their lawyers) is irrational.
Why the concept of right holder becomes redundant
Initially, right holders were serving the author needs for
support, helping them to transform the temporary exclusive
rights of the created intellectual value into profit. This
transformation required considerable initial costs, normally
inaccessible to the authors.
A right holder-philanthropist provided funds for such
start-up costs, agreeing with the author about the price for
the exclusive rights.
Currently, however, the right holder is often not acting in
the role of patron, assistant of the author, but rather as an
exploiter, seeking to impose the lowest possible price for
exclusive rights of intellectual value.
With the current complexity and high cost of litigation, as
well as the actual monopoly of right holder communities,
they have enough capacity to ensure that revenues of
authors were negligible in comparison with the income of
right holders - non-authors.
This is one of the most important incentives to create the
laws, in which the creators do not need the right holders,
that authors have the opportunity to create intellectual
values and get wages for that without the mediation of
copyright holders.
It worth noting that nearly all known cases of blatant
injustice in the field of intellectual property at the moment
relate to the existence of rights holders - non-authors.
It is not only those cases where the author is selling rights
for a relatively small sum paid once, and then the copyright
holder for many decades reaps huge, compared with author
reward, royalties; but also anecdotic situations when the
author is compelled to pay the right holder for the
performance of his own composition, as happened to Paul
McCartney [15].
It should also be noted that the opportunity to become the
legal owner by inheritance creates an additional motive for
violent crimes.
So in the updated legislation, it is desirable to do without
the concept of "right holder".
VI. CONCLUSION
Presented are our views on the need to drastically
upgrade the right to intellectual values. Our approach best
balances the interests of creators and consumers, ensures
payment for creating, rather than for the right owning,
replaces the dictates of right holders by simple general
rules. Combined with the idea of a smooth transition to the
updated laws, this is definitely preferable over both a status
quo, and the spreading ideas about the complete rejection of
the intellectual property laws.
REFERENCES
[1] Википедия: Интеллектуальная собственность,
https://ru.wikipedia.org/w/index.php?title=Интел-
лектуальная_собственность&oldid=78437030,
English translation (not exactly the same presentation):
Wikipedia: Intellectual property,
https://en.wikipedia.org/w/index.php?title=Intellectual
_property&oldid=727426880
[2] R.M. Stallman. Did You Say “Intellectual Property”?
It's a Seductive Mirage.
https://www.gnu.org/philosophy/not-ipr.en.html
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[3] N.S. Kinsella. How Intellectual Property Hampers the
Free Market. https://fee.org/articles/how-intellectual-
property-hampers-the-free-market/
[4] D.K. Levine. Intellectual Property: Silly or Sinister?
The Freeman, January/February 2011, vol. 61, no. 1.
http://www.thefreemanonline.org/featured/intellectual-
property-silly-or-sinister/
[5] Wikipedia: Pirate Party.
https://en.wikipedia.org/w/index.php?title=Pirate_Party
&oldid=721450611#European_Union_elections
[6] Free Software Foundation. http://www.fsf.org/
[7] Open Source Initiative. https://opensource.org/
[8] S. Kinsella. Resources. http://c4sif.org/resources/
[9] World Intellectual Property Organization,
http://www.wipo.int/
[10] В.Ш. Кауфман. Регистрационная революция.
http://vitnitec.ru/blockchain/. English translation:
V.Sh. Kaufman. Registration revolution.
http://www.kaufmanict.fi/vk/Registration_revolution_e
n.htm
[11] В.Ш. Кауфман. Аксиомы общежития.
http://vitnitec.ru/social-axioms/#equity. English
translation: V.Sh. Kaufman. Social axioms.
http://www.kaufmanict.fi/vk/Social_axioms_en.htm
[12] BBC русская служба: Pfizer запретила использовать
свои препараты для смертной казни.
http://www.bbc.com/russian/news/2016/05/160513_us
_pfizer_death_penalty , in English: Pfizer blocks drugs
use for executions. http://www.bbc.com/news/world-
us-canada-36293763
[13] Constitution for the United States of America, I-8-8.
http://constitution.org/constit_.htm#con1.8.8
[14] В.Ш. Кауфман. К правилам общежития.
http://vitnitec.ru/social-laws/ English translation:
V.Sh. Kaufman. Social rules.
http://www.kaufmanict.fi/vk/Social_rules_en.htm
[15] Paul McCartney pays tribute to Michael Jackson.
http://www.beatlesbible.com/2009/06/26/paul-
mccartney-pays-tribute-to-michael-jackson/