Intellectual property

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Intellectual property
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{{About|the legal concept|the 2006 film|Intellectual Property (film)}}{{Short description|Notion of ownership of ideas and processes}}{{Intellectual property}}Intellectual property (IP) is a category of property that includes intangible creations of the human intellect.WEB,weblink Understanding Industrial Property, World Intellectual Property Organization, 2018-12-06, WEB,weblink Intellectual, industrial and commercial property {{!, Fact Sheets on the European Union|publisher=European Parliament|access-date=2018-12-06}} Intellectual property encompasses two types of rights: industrial property rights (trademarks, patents, designations of origin, industrial designs and models) and copyright.WEB,weblink What are intellectual property rights?, World Trade Organization, World Trade Organization, 2016-05-23, "Intellectual property", Black's Law Dictionary, 10th ed. (2014).WEB,weblink Understanding Copyright and Related Rights, World Intellectual Property Organization, 4, 2018-12-06, WEB,weblink What is Intellectual Property?, World Intellectual Property Organization (WIPO), 2018-12-07, WEB,weblink Understanding Industrial Property, World Intellectual Property Organization (WIPO), 2018-12-07, It was not until the 19th century that the term "intellectual property" began to be used, and not until the late 20th century that it became commonplace in the majority of the world."property as a common descriptor of the field probably traces to the foundation of the World Intellectual Property Organization (WIPO) by the United Nations." in Mark A. Lemley, Property, Intellectual Property, and Free Riding {{webarchive|url= |date=2009-02-26 }}, Texas Law Review, 2005, Vol. 83:1031, page 1033, footnote 4.The main purpose of intellectual property law is to encourage the creation of a large variety of intellectual goods.Ann Marie Sullivan, Cultural Heritage & New Media: A Future for the Past, 15 J. MARSHALL REV. INTELL. PROP. L. 604 (2016)weblink To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create{{snd}}usually for a limited period of time. This gives economic incentive for their creation, because it allows people to profit from the information and intellectual goods they create.{{sfnp|Goldstein|Reese|2008|p=17}} These economic incentives are expected to stimulate innovation and contribute to the technological progress of countries, which depends on the extent of protection granted to innovators.Rod Falvey and Neil Foster (2006): “The Role of Intellectual Property Rights in Technology Transfer and Economic Growth”: Theory and Evidence, In cooperation with Olga Memedovic UNITED NATIONS INDUSTRIAL DEVELOPMENT ORGANIZATION (UNIDO), available:weblink intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is "indivisible" – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – a landowner can surround their land with a robust fence and hire armed guards to protect it, but a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of intellectual goods but not so strong that they prevent the goods' wide use is the primary focus of modern intellectual property law.{{sfnp|Goldstein|Reese|2008|pp=18–19}}


File:Statute of anne.jpg|thumb|The Statute of AnneStatute of AnneThe Statute of Monopolies (1624) and the British Statute of Anne (1710) are seen as the origins of patent law and copyright respectively,BOOK, Brad, Sherman, Lionel Bently, The making of modern intellectual property law: the British experience, 1760–1911, Cambridge University Press, 1999, 207,weblink 978-0-521-56363-5, firmly establishing the concept of intellectual property."Literary property" was the term predominantly used in the British legal debates of the 1760s and 1770s over the extent to which authors and publishers of works also had rights deriving from the common law of property (Millar v Taylor (1769), Hinton v Donaldson (1773), Donaldson v Becket (1774)). The first known use of the term intellectual property dates to this time, when a piece published in the Monthly Review in 1769 used the phrase.{{OED | intellectual property }} (Citing Monthly Review, vol. 41. p. 290 (1769): "What a niggard this Doctor is of his own, and how profuse he is of other people's intellectual property.") The first clear example of modern usage goes back as early as 1808, when it was used as a heading title in a collection of essays.{{OED | intellectual property }} (Citing Medical Repository Of Original Essays And Intelligence, vol. 11. p. 303 (1808): "New-England Association in favour of Inventors and Discoverers, and particularly for the Protection of intellectual Property.")The German equivalent was used with the founding of the North German Confederation whose constitution granted legislative power over the protection of intellectual property (Schutz des geistigen Eigentums) to the confederation.'Article 4 No. 6 of the Constitution of 1867 (German)' Hastings Law Journal, Vol. 52, p. 1255, 2001 When the administrative secretariats established by the Paris Convention (1883) and the Berne Convention (1886) merged in 1893, they located in Berne, and also adopted the term intellectual property in their new combined title, the United International Bureaux for the Protection of Intellectual Property.The organization subsequently relocated to Geneva in 1960, and was succeeded in 1967 with the establishment of the World Intellectual Property Organization (WIPO) by treaty as an agency of the United Nations. According to legal scholar Mark Lemley, it was only at this point that the term really began to be used in the United States (which had not been a party to the Berne Convention), and it did not enter popular usage there until passage of the Bayh-Dole Act in 1980.Mark A. Lemley, "Property, Intellectual Property, and Free Riding" (Abstract); see Table 1: 4–5."The history of patents does not begin with inventions, but rather with royal grants by Queen Elizabeth I (1558–1603) for monopoly privileges... Approximately 200 years after the end of Elizabeth's reign, however, a patent represents a legal right obtained by an inventor providing for exclusive control over the production and sale of his mechanical or scientific invention... [demonstrating] the evolution of patents from royal prerogative to common-law doctrine."Mossoff, A. 'Rethinking the Development of Patents: An Intellectual History, 1550–1800,' Hastings Law Journal, Vol. 52, p. 1255, 2001The term can be found used in an October 1845 Massachusetts Circuit Court ruling in the patent case Davoll et al. v. Brown., in which Justice Charles L. Woodbury wrote that "only in this way can we protect intellectual property, the labors of the mind, productions and interests are as much a man's the wheat he cultivates, or the flocks he rears."1 Woodb. & M. 53, 3 West.L.J. 151, 7 F.Cas. 197, No. 3662, 2 Robb.Pat.Cas. 303, Merw.Pat.Inv. 414 The statement that "discoveries" goes back earlier. Section 1 of the French law of 1791 stated, "All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years."WEB,weblink Patent Archives – Ladas & Parry LLP,, 2015-08-17, yes,weblink" title="">weblink 2013-01-15, In Europe, French author A. Nion mentioned propriété intellectuelle in his Droits civils des auteurs, artistes et inventeurs, published in 1846.Until recently, the purpose of intellectual property law was to give as little protection as possible in order to encourage innovation. Historically, therefore, they were granted only when they were necessary to encourage invention, limited in time and scope.WEB,weblink Property, Intellectual Property, and Free Riding, Mark A. Lemley,, 2015-08-17, This is mainly as a result of knowledge being traditionally viewed as a public good, in order to allow its extensive dissemination and improvement thereof.The Economist; (October 20th 2005): “The Liquidity of Innovation”; How the new market for intellectual property is changing the technology industry, available;weblink concept's origins can potentially be traced back further. Jewish law includes several considerations whose effects are similar to those of modern intellectual property laws, though the notion of intellectual creations as property does not seem to exist – notably the principle of Hasagat Ge'vul (unfair encroachment) was used to justify limited-term publisher (but not author) copyright in the 16th century.WEB,weblink Jewish Law – Articles ("Jewish Law and Copyright"),, 2015-08-17, In 500 BCE, the government of the Greek state of Sybaris offered one year's patent "to all who should discover any new refinement in luxury".Charles Anthon, A Classical Dictionary: Containing an Account of the Principal Proper Names Mentioned in Ancient Authors, and Intended to Elucidate All the Important Points Connected with the Geography, History, Biography, Mythology, and Fine Arts of the Greek and Romans. Together with an Account of Coins, Weights, and Measures, with Tabular Values of the Same 1273 (Harper & Brothers 1841). See also "The first patent law was enacted in Sybaris, a city in the South of Italy, before the Roman domination; (…) The law was mentioned by Atheneus, an ancient writer..." in Takenaka, Toshiko (2013). Intellectual Property in Common Law and Civil Law. Edward Elgar Publishing. p. 419. (chapter by Mario Franzosi).According to Jean-Frédéric Morin, "the global intellectual property regime is currently in the midst of a paradigm shift".WEB, Morin, Jean-Frédéric, Paradigm shift in the global IP regime: The agency of academics, Review of International Political Economy, vol 21-2, 2014, p.275,weblink Indeed, up until the early 2000s the global IP regime used to be dominated by high standards of protection characteristic of IP laws from Europe or the United States, with a vision that uniform application of these standards over every country and to several fields with little consideration over social, cultural or environmental values or of the national level of economic development. Morin argues that "the emerging discourse of the global IP regime advocates for greater policy flexibility and greater access to knowledge, especially for developing countries." Indeed, with the Development Agenda adopted by WIPO in 2007, a set of 45 recommendations to adjust WIPO's activities to the specific needs of developing countries and aim to reduce distortions especially on issues such as patients’ access to medicines, Internet users’ access to information, farmers’ access to seeds, programmers’ access to source codes or students’ access to scientific articles.WEB, Morin, Jean-Frédéric, Paradigm shift in the global IP regime: The agency of academics, Review of International Political Economy, vol 21-2, 2014, p.275,weblink However, this paradigm shift has not yet manifested itself in concrete legal reforms at the international level.WEB, Morin, Jean-Frédéric, Paradigm shift in the global IP regime: The agency of academics, Review of International Political Economy, vol 21-2, 2014, p.275,weblink Similarly, it is based on these background that the Trade-Related Aspects of Intellectual Property Rights (TRIPS) agreement requires members of the WTO to set minimum standards of legal protection, but its objective to have a “one-fits-all” protection law on Intellectual Property has been viewed with controversies regarding differences in the development level of countries.JOURNAL, Roisah, Kholis, 2017-12-26, Understanding Trade-Related Aspects of Intellectual Property Rights Agreement: From Hard and Soft Law Perspective, Hasanuddin Law Review, 3, 3, 277–289, 10.20956/halrev.v3i3.1153, 2442-9899, Despite the controversy, the agreement has extensively incorporated intellectual property rights into the global trading system for the first time in 1995, and has prevailed as the most comprehensive agreement reached by the world.WTO (2013): Intellectual Property; Responding to least developed countries’ special needs in intellectual property;weblink

Intellectual property rights

Intellectual property rights include patents, copyright, industrial design rights, trademarks, plant variety rights, trade dress, geographical indications,Article 1(2) of the Paris Convention: "The protection of industrial property has as its object patents, utility models, industrial designs, trademarks, service marks, trade names, indications of source or appellations of origin, and the repression of unfair competition." and in some jurisdictions trade secrets. There are also more specialized or derived varieties of sui generis exclusive rights, such as circuit design rights (called mask work rights in the US) and supplementary protection certificates for pharmaceutical products (after expiry of a patent protecting them) and database rights (in European law). The term "industrial property" is sometimes used to refer to a large subset of intellectual property rights including patents, trademarks, industrial designs, utility models, service marks, trade names, and geographical indications.WEB,weblink Paris Convention for the Protection of Industrial Property, WIPO, 25 September 2018,


A patent is a form of right granted by the government to an inventor or their successor-in-title, giving the owner the right to exclude others from making, using, selling, offering to sell, and importing an invention for a limited period of time, in exchange for the public disclosure of the invention. An invention is a solution to a specific technological problem, which may be a product or a process and generally has to fulfill three main requirements: it has to be new, not obvious and there needs to be an industrial applicability.WIPO Intellectual Property Handbook: Policy, Law and Use. Chapter 2: Fields of Intellectual Property Protection WIPO 2008{{rp|17}} To enrich the body of knowledge and stimulate innovation, it is an obligation for patent owners to disclose valuable information about their inventions to the public.WIPO (2008); “What is Intellectual Property” Handbook: WIPO Publication No. 450(E) {{Listed Invalid ISBN|978-92-805-1555-0}}, available:weblink


A copyright gives the creator of an original work exclusive rights to it, usually for a limited time. Copyright may apply to a wide range of creative, intellectual, or artistic forms, or "works".BOOK,weblink Intellectual Property and Information Wealth: Copyright and related rights, 346, Peter K, Yu, 978-0-275-98883-8, 2007, Greenwood Publishing Group, WEB,weblink World Intellectual Property Organisation, Understanding Copyright and Related Rights, WIPO, August 2008, 8, yes,weblink 2012-03-19, Copyright does not cover ideas and information themselves, only the form or manner in which they are expressed.BOOK,weblink Art and copyright, 48–49, Simon, Stokes, 978-1-84113-225-9, 2001, Hart Publishing,

Industrial design rights

An industrial design right (sometimes called "design right" or design patent) protects the visual design of objects that are not purely utilitarian. An industrial design consists of the creation of a shape, configuration or composition of pattern or color, or combination of pattern and color in three-dimensional form containing aesthetic value. An industrial design can be a two- or three-dimensional pattern used to produce a product, industrial commodity or handicraft. Generally speaking, it is what makes a product look appealing, and as such, it increases the commercial value of goods.

Plant varieties

Plant breeders' rights or plant variety rights are the rights to commercially use a new variety of a plant. The variety must amongst others be novel and distinct and for registration the evaluation of propagating material of the variety is considered.


A trademark is a recognizable sign, design or expression which distinguishes products or services of a particular trader from the similar products or services of other traders.WEB,weblink Trademark, Patent, or Copyright?, 23 November 2015,weblink 13 December 2012, 13 December 2015, United States Patent and Trademark Office, Department of Commerce, WEB,weblink A trade mark is a sign which can distinguish your goods and services from those of your competitors (you may refer to your trade mark as your "brand")., 22 December 2012, What is a trade mark (or brand)?,weblink 3 July 2012, Intellectual Property Office (United Kingdom), Intellectual Property Office, WEB,weblink Trade marks identify the goods and services of particular traders,weblink 29 November 2014, 28 November 2014, 28 March 2019, Deutsches Patent- und Markenamt, Trade Marks,

Trade dress

Trade dress is a legal term of art that generally refers to characteristics of the visual and aesthetic appearance of a product or its packaging (or even the design of a building) that signify the source of the product to consumers.BOOK, Robert P., Merges, Peter S., Menell, Mark A., Lemley, Intellectual Property in the New Technological Age, 4th rev., 2007, New York, Wolters Kluwer, 978-0-7355-6989-8, 29,

Trade secrets

A trade secret is a formula, practice, process, design, instrument, pattern, or compilation of information which is not generally known or reasonably ascertainable, by which a business can obtain an economic advantage over competitors and customers. There is no formal government protection granted; each business must take measures to guard its own trade secrets (e.g., Formula of its soft drinks is a trade secret for Coca-Cola.)

Object of intellectual property law

The main purpose of intellectual property law is to encourage the creation of a wide variety of intellectual goods for consumers.{{sfnp|Goldstein|Reese|2008|p=17}} To achieve this, the law gives people and businesses property rights to the information and intellectual goods they create, usually for a limited period of time. Because they can then profit from them, this gives economic incentive for their creation.{{sfnp|Goldstein|Reese|2008|p=17}} The intangible nature of intellectual property presents difficulties when compared with traditional property like land or goods. Unlike traditional property, intellectual property is indivisible – an unlimited number of people can "consume" an intellectual good without it being depleted. Additionally, investments in intellectual goods suffer from problems of appropriation – while a landowner can surround their land with a robust fence and hire armed guards to protect it, a producer of information or an intellectual good can usually do very little to stop their first buyer from replicating it and selling it at a lower price. Balancing rights so that they are strong enough to encourage the creation of information and intellectual goods but not so strong that they prevent their wide use is the primary focus of modern intellectual property law.{{sfnp|Goldstein|Reese|2008|pp=18–19}}By exchanging limited exclusive rights for disclosure of inventions and creative works, society and the patentee/copyright owner mutually benefit, and an incentive is created for inventors and authors to create and disclose their work. Some commentators have noted that the objective of intellectual property legislators and those who support its implementation appears to be "absolute protection". "If some intellectual property is desirable because it encourages innovation, they reason, more is better. 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". This absolute protection or full value view treats intellectual property as another type of "real" property, typically adopting its law and rhetoric. Other recent developments in intellectual property law, such as the America Invents Act, stress international harmonization. Recently there has also been much debate over the desirability of using intellectual property rights to protect cultural heritage, including intangible ones, as well as over risks of commodification derived from this possibility.JOURNAL, Farah, Paolo Davide, Tremolada, Riccardo, Desirability of Commodification of Intangible Cultural Heritage: The Unsatisfying Role of Intellectual Property Rights, Transnational Dispute Management, March 15, 2014, 11, 2, 2472339, The issue still remains open in legal scholarship.

Financial incentive

These exclusive rights allow owners of intellectual property to benefit from the property they have created, providing a financial incentive for the creation of an investment in intellectual property, and, in case of patents, pay associated research and development costs.Prudential Reasons for IPR Reform, University of Melbourne, Doris Schroeder and Peter Singer, May 2009 In the United States Article I Section 8 Clause 8 of the Constitution, commonly called the Patent and Copyright Clause, reads; "[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.'"WEB, Copyright & Fair Use,weblink Stanford University Libraries, 26 June 2017, 2013-04-09, ”Some commentators, such as David Levine and Michele Boldrin, dispute this justification.BOOK, Levine, David, David K. Levine, Michele Boldrin, Michele Boldrin, Against intellectual monopoly, Cambridge University Press, 2008-09-07,weblink 978-0-521-87928-6, In 2013 the United States Patent & Trademark Office approximated that the worth of intellectual property to the U.S. economy is more than US $5 trillion and creates employment for an estimated 18 million American people. The value of intellectual property is considered similarly high in other developed nations, such as those in the European Union.WEB, Why Chemotherapy That Costs $70,000 in the U.S. Costs $2,500 in India,weblink The Atlantic, The Atlantic Monthly Group, 18 April 2013, Bollyky, Thomas, 10 April 2013, In the UK, IP has become a recognised asset class for use in pension-led funding and other types of business finance. However, in 2013, the UK Intellectual Property Office stated: "There are millions of intangible business assets whose value is either not being leveraged at all, or only being leveraged inadvertently".BOOK, Brassell, King, Martin, Kelvin, Banking on IP?, 2013, The Intellectual Property Office, Newport, Wales, 978-1-908908-86-5, 15,weblink

Economic growth

The WIPO treaty and several related international agreements underline that the protection of intellectual property rights is essential to maintaining economic growth. The WIPO Intellectual Property Handbook gives two reasons for intellectual property laws:One is to give statutory expression to the moral and economic rights of creators in their creations and the rights of the public in access to those creations. The second is to promote, as a deliberate act of Government policy, creativity and the dissemination and application of its results and to encourage fair trading which would contribute to economic and social development.WEB,weblink 3, The Concept of Intellectual Property, 28 March 2019, WIPO, The Anti-Counterfeiting Trade Agreement (ACTA) states that "effective enforcement of intellectual property rights is critical to sustaining economic growth across all industries and globally".WEB,weblinkweblink" title="">weblink May 7, 2012, 28 March 2019, Anti-Counterfeiting Trade Agreement, 24, Foreign Affairs and International Trade Canada, Economists estimate that two-thirds of the value of large businesses in the United States can be traced to intangible assets.WEB,weblink Economic Effects of Intellectual Property-Intensive Manufacturing in the United States, Robert J., Shapiro, Nam D., Pham,, 17 August 2015, July 2007, Alan S., Blinder, 29, World Growth, "IP-intensive industries" are estimated to generate 72 percent more value added (price minus material cost) per employee than "non-IP-intensive industries".WEB,weblink" title="">weblink Economic Effects of Intellectual Property-Intensive Manufacturing in the United States, Robert, Shapiro, Nam, Pham, July 2007, 28 March 2019, 16 February 2008,weblink Alan S., Blinder,, {{Dubious|date=July 2009}}A joint research project of the WIPO and the United Nations University measuring the impact of IP systems on six Asian countries found "a positive correlation between the strengthening of the IP system and subsequent economic growth."WEB,weblink Measuring the Economic Impact of IP Systems, WIPO, 19 September 2007, 28 March 2019,weblink 21 May 2017,


According to Article 27 of the Universal Declaration of Human Rights, "everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author".WEB, United Nations, The Universal Declaration of Human Rights,weblink October 25, 2011, Although the relationship between intellectual property and human rights is a complex one,WEB, WIPO – The World Intellectual Property Organization, Human Rights and Intellectual Property: An Overview,weblink October 25, 2011, yes,weblink" title="">weblink October 22, 2011, there are moral arguments for intellectual property.The arguments that justify intellectual property fall into three major categories. Personality theorists believe intellectual property is an extension of an individual. Utilitarians believe that intellectual property stimulates social progress and pushes people to further innovation. Lockeans argue that intellectual property is justified based on deservedness and hard work.WEB,weblink Intellectual Property, Moore, Adam, 2014, Stanford Encyclopedia of Philosophy, Metaphysics Research Lab, Stanford University, Various moral justifications for private property can be used to argue in favor of the morality of intellectual property, such as:
  1. Natural Rights/Justice Argument: this argument is based on Locke's idea that a person has a natural right over the labour and/or products which is produced by his/her body. Appropriating these products is viewed as unjust. Although Locke had never explicitly stated that natural right applied to products of the mind,Ronald V. Bettig. "Critical Perspectives on the History and Philosophy of Copyright" in Copyrighting Culture: The Political Economy of Intellectual Property, by Ronald V. Bettig. (Boulder, CO: Westview Press, 1996), 19–20 it is possible to apply his argument to intellectual property rights, in which it would be unjust for people to misuse another's ideas.Richard T. De George, "14. Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 415–416. Locke's argument for intellectual property is based upon the idea that laborers have the right to control that which they create. They argue that we own our bodies which are the laborers, this right of ownership extends to what we create. Thus, intellectual property ensures this right when it comes to production.
  2. Utilitarian-Pragmatic Argument: according to this rationale, a society that protects private property is more effective and prosperous than societies that do not. Innovation and invention in 19th century America has been attributed to the development of the patent system.Richard T. De George, "14. Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 416. By providing innovators with "durable and tangible return on their investment of time, labor, and other resources", intellectual property rights seek to maximize social utility.JOURNAL, Spinello, Richard A., Intellectual property rights, Library Hi Tech, January 2007, 25, 1, 12–22, 10.1108/07378830710735821, The presumption is that they promote public welfare by encouraging the "creation, production, and distribution of intellectual works". Utilitarians argue that without intellectual property there would be a lack of incentive to produce new ideas. Systems of protection such as Intellectual property optimize social utility.
  3. "Personality" Argument: this argument is based on a quote from Hegel: "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".Richard T. De George, "14. Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 417. European intellectual property law is shaped by this notion that ideas are an "extension of oneself and of one's personality".Richard T. De George, "14. Intellectual Property Rights," in The Oxford Handbook of Business Ethics, by George G. Brenkert and Tom L. Beauchamp, vol. 1, 1st ed. (Oxford, England: Oxford University Press, n.d.), 418. Personality theorists argue that by being a creator of something one is inherently at risk and vulnerable for having their ideas and designs stolen and/or altered. Intellectual property protects these moral claims that have to do with personality.
Lysander Spooner (1855) argues "that a man has a natural and absolute right—and if a natural and absolute, then necessarily a perpetual, right—of property, in the ideas, of which he is the discoverer or creator; that his right of property, in ideas, is intrinsically the same as, and stands on identically the same grounds with, his right of property in material things; that no distinction, of principle, exists between the two cases".The Law of Intellectual Property, Part 1 Chapter 1 Section 9 – Lysander SpoonerWriter Ayn Rand argued in her book (Capitalism: The Unknown Ideal) that the protection of intellectual property is essentially a moral issue. The belief is that the human mind itself is the source of wealth and survival and that all property at its base is intellectual property. To violate intellectual property is therefore no different morally than violating other property rights which compromises the very processes of survival and therefore constitutes an immoral act.BOOK, harv, Rand, Ayn, Ayn Rand, Capitalism: The Unknown Ideal, New York, Signet, 1967, 1966, paperback 2nd,

Infringement, misappropriation, and enforcement

Violation of intellectual property rights, called "infringement" with respect to patents, copyright, and trademarks, and "misappropriation" with respect to trade secrets, may be a breach of civil law or criminal law, depending on the type of intellectual property involved, jurisdiction, and the nature of the action.As of 2011 trade in counterfeit copyrighted and trademarked works was a $600 billion industry worldwide and accounted for 5–7% of global trade.Miriam Bitton (2012) Rethinking the Anti-Counterfeiting Trade Agreement's Criminal Copyright Enforcement Measures The Journal of Criminal Law & Criminology 102(1):67-117

Patent infringement

Patent infringement typically is caused by using or selling a patented invention without permission from the patent holder. The scope of the patented invention or the extent of protection{{EPC Article|69}} is defined in the claims of the granted patent. There is safe harbor in many jurisdictions to use a patented invention for research. This safe harbor does not exist in the US unless the research is done for purely philosophical purposes, or in order to gather data in order to prepare an application for regulatory approval of a drug.Pradip K. Sahu and Shannon Mrksich, Ph.D. The Hatch-Waxman Act: When Is Research Exempt from Patent Infringement? ABA-IPL Newsletter 22(4) Summer 2004 In general, patent infringement cases are handled under civil law (e.g., in the United States) but several jurisdictions incorporate infringement in criminal law also (for example, Argentina, China, France, Japan, Russia, South Korea).Matthew L. Cutler (2008) International Patent Litigation Survey: A Survey of the Characteristics of Patent Litigation in 17 International Jurisdictions {{webarchive|url= |date=2013-09-22 }}

Copyright infringement

Copyright infringement is reproducing, distributing, displaying or performing a work, or to make derivative works, without permission from the copyright holder, which is typically a publisher or other business representing or assigned by the work's creator. It is often called "piracy".WEB, Panethiere, Darrell, The Persistence of Piracy: The Consequences for Creativity, for Culture, and for Sustainable Development, UNESCO e-Copyright Bulletin, July–September 2005, 2,weblink yes,weblink" title="">weblink 2008-08-16, While copyright is created the instant a work is fixed, generally the copyright holder can only get money damages if the owner registers the copyright.{{citation needed|date=July 2015}} Enforcement of copyright is generally the responsibility of the copyright holder.BOOK, Correa, Carlos Maria, Li, Xuan, Intellectual property enforcement: international perspectives, Edward Elgar Publishing, 2009, 211,weblink 978-1-84844-663-2, The ACTA trade agreement, signed in May 2011 by the United States, Japan, Switzerland, and the EU, and which has not entered into force, requires that its parties add criminal penalties, including incarceration and fines, for copyright and trademark infringement, and obligated the parties to actively police for infringement.Irina D. Manta Spring 2011 The Puzzle of Criminal Sanctions for Intellectual Property Infringement Harvard Journal of Law & Technology 24(2):469-518 There are limitations and exceptions to copyright, allowing limited use of copyrighted works, which does not constitute infringement. Examples of such doctrines are the fair use and fair dealing doctrine.

Trademark infringement

Trademark infringement occurs when one party uses a trademark that is identical or confusingly similar to a trademark owned by another party, in relation to products or services which are identical or similar to the products or services of the other party. In many countries, a trademark receives protection without registration, but registering a trademark provides legal advantages for enforcement. Infringement can be addressed by civil litigation and, in several jurisdictions, under criminal law.

Trade secret misappropriation

Trade secret misappropriation is different from violations of other intellectual property laws, since by definition trade secrets are secret, while patents and registered copyrights and trademarks are publicly available. In the United States, trade secrets are protected under state law, and states have nearly universally adopted the Uniform Trade Secrets Act. The United States also has federal law in the form of the Economic Espionage Act of 1996 ({{usc|18|1831|1839}}), which makes the theft or misappropriation of a trade secret a federal crime. This law contains two provisions criminalizing two sorts of activity. The first, {{uscsub|18|1831|a}}, criminalizes the theft of trade secrets to benefit foreign powers. The second, {{usc|18|1832}}, criminalizes their theft for commercial or economic purposes. (The statutory penalties are different for the two offenses.) In Commonwealth common law jurisdictions, confidentiality and trade secrets are regarded as an equitable right rather than a property right but penalties for theft are roughly the same as in the United States.{{citation needed|date=July 2015}}


{{further|Criticism of patents|Opposition to copyright}}File:Pro piracy demonstration.jpg|thumb|Demonstration in Sweden in support of file sharingfile sharingFile:GlamCamp NY Kippelboy nina Paley (2).JPG|thumb|"Copying is not theft!" badge with a character resembling Mickey Mouse in reference to the in popular culture rationale behind the Sonny Bono Copyright Term Extension ActSonny Bono Copyright Term Extension Act

The term "intellectual property"

Criticism of the term intellectual property ranges from discussing its vagueness and abstract overreach to direct contention to the semantic validity of using words like property and rights in fashions that contradict practice and law. Many detractors think this term specially serves the doctrinal agenda of parties opposing reform in the public interest or otherwise abusing related legislations; and that it disallows intelligent discussion about specific and often unrelated aspects of copyright, patents, trademarks, etc.WEB, Mike Masnick, Mike Masnick, If Intellectual Property Is Neither Intellectual, Nor Property, What Is It?,weblink, Techdirt, 17 August 2014,weblink 13 August 2014, 6 March 2008, Free Software Foundation founder Richard Stallman argues that, although the term intellectual property is in wide use, it should be rejected altogether, because it "systematically distorts and confuses these issues, and its use was and is promoted by those who gain from this confusion". He claims that the term "operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues" and that it creates a "bias" by confusing these monopolies with ownership of limited physical things, likening them to "property rights".WEB,weblink Did You Say 'Intellectual Property'? It's a Seductive Mirage, Richard M. Stallman, 2008-03-28, Free Software Foundation, Inc., Stallman advocates referring to copyrights, patents and trademarks in the singular and warns against abstracting disparate laws into a collective term. He argues that "to avoid spreading unnecessary bias and confusion, it is best to adopt a firm policy not to speak or even think in terms of 'intellectual property'."WEB,weblink Words to Avoid (or Use with Care) Because They Are Loaded or Confusing, Richard M. Stallman, 2016-12-01, The GNU Project, Similarly, economists Boldrin and Levine prefer to use the term "intellectual monopoly" as a more appropriate and clear definition of the concept, which they argue, is very dissimilar from property rights.Boldrin, Michele, and David K. Levine. Against intellectual monopoly. Cambridge: Cambridge University Press, 2008. They further argued that “stronger patents do little or nothing to encourage innovation”, mainly explained by its tendency to create market monopolies, thereby restricting further innovations and technology transfer.Michele Boldrin and David K. Levine (2009): “Intellectual Property Rights and Economic Growth in the Long-Run”; A model Discovery, available;weblink the assumption that intellectual property rights are actual rights, Stallman says that this claim does not live to the historical intentions behind these laws, which in the case of copyright served as a censorship system, and later on, a regulatory model for the printing press that may have benefited authors incidentally, but never interfered with the freedom of average readers.WEB,weblink copyright and globalization in the age of computer networks, 19 April 2001, 21 October 2015,, Stallman, Richard, Richard Stallman,weblink" title="">weblink 2 March 2015, Still referring to copyright, he cites legal literature such as the United States Constitution and case law to demonstrate that the law is meant to be an optional and experimental bargain to temporarily trade property rights and free speech for public, not private, benefits in the form of increased artistic production and knowledge. He mentions that "if copyright were a natural right nothing could justify terminating this right after a certain period of time".WEB,weblink Misinterpreting Copyright, 21 October 2015,, Stallman, Richard, Richard Stallman,weblink 5 September 2015, Law professor, writer and political activist Lawrence Lessig, along with many other copyleft and free software activists, has criticized the implied analogy with physical property (like land or an automobile). They argue such an analogy fails because physical property is generally rivalrous while intellectual works are non-rivalrous (that is, if one makes a copy of a work, the enjoyment of the copy does not prevent enjoyment of the original).NEWS, "Intellectual property" is a silly euphemism, Doctorow, Cory, Cory Doctorow, The Guardian,weblink 2008-02-21, 2008-02-23, Other arguments along these lines claim that unlike the situation with tangible property, there is no natural scarcity of a particular idea or information: once it exists at all, it can be re-used and duplicated indefinitely without such re-use diminishing the original. Stephan Kinsella has objected to intellectual property on the grounds that the word "property" implies scarcity, which may not be applicable to ideas.Stephan Kinsella (2001) Against Intellectual Property Journal of Libertarian Studies 15(2):1–53Entrepreneur and politician Rickard Falkvinge and hacker Alexandre Oliva have independently compared George Orwell's fictional dialect Newspeak to the terminology used by intellectual property supporters as a linguistic weapon to shape public opinion regarding copyright debate and DRM.WEB, Rick Falkvinge, Rick Falkvinge, Language Matters: Framing The Copyright Monopoly So We Can Keep Our Liberties,weblink, 17 August 2014,weblink" title="">weblink 4 June 2014, 14 July 2013, WEB, Alexandre Oliva, Alexandre Oliva, 1984+30: GNU speech to defeat e-newspeak,weblink 17 August 2014,

Alternative terms

In civil law jurisdictions, intellectual property has often been referred to as intellectual rights, traditionally a somewhat broader concept that has included moral rights and other personal protections that cannot be bought or sold. Use of the term intellectual rights has declined since the early 1980s, as use of the term intellectual property has increased.Alternative terms monopolies on information and intellectual monopoly have emerged among those who argue against the "property" or "intellect" or "rights" assumptions, notably Richard Stallman. The backronyms intellectual protectionism and intellectual poverty,Stephan Kinsella for Ludwig von Mises Institute blog, January 6, 2011. Intellectual Poverty whose initials are also IP, have found supporters as well, especially among those who have used the backronym digital restrictions management.Official site run by the Free Software Foundation Europe (FSFE)WEB,weblink What is DRM?, Defective by Design, 2015-08-17, The argument that an intellectual property right should (in the interests of better balancing of relevant private and public interests) be termed an intellectual monopoly privilege (IMP) has been advanced by several academics including Birgitte AndersenBirgitte Andersen. "'Intellectual Property Right' Or 'Intellectual Monopoly Privilege: Which One Should Patent Analysts Focus On?" CONFERENCIA INTERNACIONAL SOBRE SISTEMAS DE INOVAÇÃO E ESTRATÉGIAS DE DESENVOLVIMENTO PARA O TERCEIRO MILÊNIO. Nov 2003 and Thomas Alured Faunce.JOURNAL, Martin, G, Sorenson, C, Faunce, TA, 2007, Balancing intellectual monopoly privileges and the need for essential medicines, Globalization and Health, 3, 4, 10.1186/1744-8603-3-4, Balancing the need to protect the intellectual property rights (IPRs) (which the third author considers are more accurately described as intellectual monopoly privileges (IMPs)) of pharmaceutical companies, with the need to ensure access to essential medicines in developing countries is one of the most pressing challenges facing international policy makers today., 17565684, 1904211,

Objections to overbroad intellectual property laws

File:Definition of Free Cultural Works logo notext.svg|thumb|The free culture movement champions the production of content that bears little or no restrictions.]]Some critics of intellectual property, such as those in the free culture movement, point at intellectual monopolies as harming health (in the case of pharmaceutical patents), preventing progress, and benefiting concentrated interests to the detriment of the masses,Birgitte Andersen. 'Intellectual Property Right' Or 'Intellectual Monopoly Privilege': Which One Should Patent Analysts Focus On? {{webarchive|url= |date=2013-05-02 }} Conferência Internacional Sobre Sistemas De Inovação E Estratégias De Desenvolvimento Para O Terceiro Milênio. Nov. 2003JOURNAL, Martin, G, Sorenson, C, Faunce, TA, 2007, Editorial: Balancing the need to protect the intellectual property rights (IPRs),weblink Globalization and Health, 3, 4, 10.1186/1744-8603-3-4, 17565684, 1904211, On patents - WEB,weblink Protecting Freedom In The Patent System: The Public Patent Foundation's Mission and Activities, Daniel B. Ravicher, August 6, 2008, WEB,weblink Stiglitz, Joseph, Joseph Stiglitz, October 13, 2006, Authors@Google: Joseph Stiglitz – Making Globalization Work., and argue that the public interest is harmed by ever-expansive monopolies in the form of copyright extensions, software patents, and business method patents. More recently scientists and engineers are expressing concern that patent thickets are undermining technological development even in high-tech fields like nanotechnology.Stallman's got company: Researcher wants nanotech patent moratorium – Ars TechnicaFreeze on nanotechnology patents proposed to help grow the sector {{webarchive|url= |date=2014-03-02 }}- Wired UK 11-23-2012Petra Moser has asserted that historical analysis suggests that intellectual property laws may harm innovation:Overall, the weight of the existing historical evidence suggests that patent policies, which grant strong intellectual property rights to early generations of inventors, may discourage innovation. On the contrary, policies that encourage the diffusion of ideas and modify patent laws to facilitate entry and encourage competition may be an effective mechanism to encourage innovation.Moser, Petra. 2013. "Patents and Innovation: Evidence from Economic History." Journal of Economic Perspectives, 27(1): 23-44.In support of that argument, Jörg Baten, Nicola Bianchi and Petra MoserJOURNAL, Baten, Jörg, Bianchi, Nicola, Moser, Petra, Compulsory licensing and innovation–Historical evidence from German patents after WWI, Journal of Development Economics, 2017, 126, 231–242, 10.1016/j.jdeveco.2017.01.002, find historical evidence that especially compulsory licensing – which allows governments to license patents without the consent of patent-owners – encouraged invention in Germany in the early 20th century by increasing the threat of competition in fields with low pre-existing levels of competition.Peter Drahos notes, "Property rights confer authority over resources. When authority is granted to the few over resources on which many depend, the few gain power over the goals of the many. This has consequences for both political and economic freedoms with in a society."Peter Drahos and John Braithwaite. Information Feudalism: Who Owns the Knowledge Economy?, Earthscan 2002{{rp|13}}The World Intellectual Property Organization (WIPO) recognizes that conflicts may exist between the respect for and implementation of current intellectual property systems and other human rights.WEB, WIPO – World Intellectual Property Organization, Human Rights and Intellectual Property: An Overview,weblink October 25, 2011, yes,weblink" title="">weblink October 22, 2011, In 2001 the UN Committee on Economic, Social and Cultural Rights issued a document called "Human rights and intellectual property" that argued that intellectual property tends to be governed by economic goals when it should be viewed primarily as a social product; in order to serve human well-being, intellectual property systems must respect and conform to human rights laws. According to the Committee, when systems fail to do so they risk infringing upon the human right to food and health, and to cultural participation and scientific benefits.Staff, UN Committee on Economic Social and Cultural Rights. Geneva, November 12–30, 2001. Human rights and intellectual propertyJOURNAL, Chapman, Audrey R., The Human Rights Implications of Intellectual Property Protection, Journal of International Economic Law, December 2002, 5, 4, 861–882, 10.1093/jiel/5.4.861,weblink February 9, 2013, In 2004 the General Assembly of WIPO adopted The Geneva Declaration on the Future of the World Intellectual Property Organization which argues that WIPO should "focus more on the needs of developing countries, and to view IP as one of many tools for development—not as an end in itself".The Geneva Declaration on the Future of the World Intellectual Property OrganizationFurther along these lines, The ethical problems brought up by IP rights are most pertinent when it is socially valuable goods like life-saving medicines are given IP protection. While the application of IP rights can allow companies to charge higher than the marginal cost of production in order to recoup the costs of research and development, the price may exclude from the market anyone who cannot afford the cost of the product, in this case a life-saving drug.JOURNAL, 10.1111/j.1747-9991.2010.00358.x, Ethical Issues Surrounding Intellectual Property Rights, Philosophy Compass, 5, 12, 1107–1115, 2010, Sonderholm, Jorn, "An IPR driven regime is therefore not a regime that is conductive to the investment of R&D of products that are socially valuable to predominately poor populations".{{rp|1108–9}}Libertarians have differing views on intellectual property.{{Citation needed|date=August 2018}} Stephan Kinsella, an anarcho-capitalist on the right-wing of libertarianism,Stephan Kinsella, weblink" title="">"What It Means To Be an Anarcho-Capitalist", "", published 2004-01-20, archived 2018-04-15. Retrieved 2018-08-04 argues against intellectual property because allowing property rights in ideas and information creates artificial scarcity and infringes on the right to own tangible property. Kinsella uses the following scenario to argue this point:[I]magine the time when men lived in caves. One bright guy—let's call him Galt-Magnon—decides to build a log cabin on an open field, near his crops. To be sure, this is a good idea, and others notice it. They naturally imitate Galt-Magnon, and they start building their own cabins. But the first man to invent a house, according to IP advocates, would have a right to prevent others from building houses on their own land, with their own logs, or to charge them a fee if they do build houses. It is plain that the innovator in these examples becomes a partial owner of the tangible property (e.g., land and logs) of others, due not to first occupation and use of that property (for it is already owned), but due to his coming up with an idea. Clearly, this rule flies in the face of the first-user homesteading rule, arbitrarily and groundlessly overriding the very homesteading rule that is at the foundation of all property rights.N. Stephan Kinsella, Against Intellectual property (2008), p. 44.Thomas Jefferson once said in a letter to Isaac McPherson on August 13, 1813:"If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it. Its peculiar character, too, is that no one possesses the less, because every other possesses the whole of it. He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me."Thomas Jefferson, Letter to Isaac McPherson (August 13, 1813)In 2005 the RSA launched the Adelphi Charter, aimed at creating an international policy statement to frame how governments should make balanced intellectual property law.Boyle, James (14 October 2005). Protecting the public domain. The Guardian.Another aspect of current U.S. Intellectual Property legislation is its focus on individual and joint works; thus, copyright protection can only be obtained in 'original' works of authorship.JOURNAL, Philip, Bennet, Native Americans and Intellectual Property: the Necessity of Implementing Collective Ideals into Current United States Intellectual Property Laws, 2009, 1498783,

Expansion in nature and scope of intellectual property laws

(File:Tom Bell's graph showing extension of U.S. copyright term over time.svg|thumb|Expansion of U.S. copyright law (Assuming authors create their works by age 35 and live for seventy years))Other criticism of intellectual property law concerns the expansion of intellectual property, both in duration and in scope.In addition, as scientific knowledge has expanded and allowed new industries to arise in fields such as biotechnology and nanotechnology, originators of technology have sought IP protection for the new technologies. Patents have been granted for living organisms,Council for Responsible Genetics, DNA Patents Create Monopolies on Living Organisms.. Retrieved 2008.12.18. (and in the United States, certain living organisms have been patentable for over a century).Plant Patents USPTO.govThe increase in terms of protection is particularly seen in relation to copyright, which has recently been the subject of serial extensions in the United States and in Europe.WEB,weblink Against perpetual copyright, E.g., the U.S. Copyright Term Extension Act, Pub.L. 105–298.Mark Helprin, Op-ed: A Great Idea Lives Forever. Shouldn't Its Copyright? The New York Times, May 20, 2007.Eldred v. Ashcroft Eldred v. Ashcroft, 537 U. S. 186 (2003)WEB,weblink Arguing For Infinite Copyright... Using Copied Ideas And A Near Total Misunderstanding Of Property, May 21, 2007, Masnick, Mike, techdirt, With no need for registration or copyright notices, this is thought to have led to an increase in orphan works (copyrighted works for which the copyright owner cannot be contacted), a problem that has been noticed and addressed by governmental bodies around the world.Library of Congress Copyright Office Docket No. 2012–12 Orphan Works and Mass Digitization Federal Register, Vol. 77, No. 204. Monday, October 22, 2012. Notices. PP 64555–64561; see p 64555 first column for international efforts and 3rd column for description of the problem.Also with respect to copyright, the American film industry helped to change the social construct of intellectual property via its trade organization, the Motion Picture Association of America. In amicus briefs in important cases, in lobbying before Congress, and in its statements to the public, the MPAA has advocated strong protection of intellectual-property rights. In framing its presentations, the association has claimed that people are entitled to the property that is produced by their labor. Additionally Congress's awareness of the position of the United States as the world's largest producer of films has made it convenient to expand the conception of intellectual property.Dennis Wharton, "MPAA's Rebel With Cause Fights for Copyright Coin," Variety (August 3, 1992), Vol. 348, No. 2, p. 18. These doctrinal reforms have further strengthened the industry, lending the MPAA even more power and authority.William W. Fisher III, The Growth of Intellectual Property:A History of the Ownership of Ideas in the United States Eigentumskulturen im Vergleich (Vandenhoeck & Ruprecht, 1999)File:Hilllary Rosen testifies on Napster.jpg|thumb|right|RIAA representative Hilary RosenHilary RosenThe growth of the Internet, and particularly distributed search engines like Kazaa and Gnutella, have represented a challenge for copyright policy. The Recording Industry Association of America, in particular, has been on the front lines of the fight against copyright infringement, which the industry calls "piracy". The industry has had victories against some services, including a highly publicized case against the file-sharing company Napster, and some people have been prosecuted for sharing files in violation of copyright. The electronic age has seen an increase in the attempt to use software-based digital rights management tools to restrict the copying and use of digitally based works. Laws such as the Digital Millennium Copyright Act have been enacted that use criminal law to prevent any circumvention of software used to enforce digital rights management systems. Equivalent provisions, to prevent circumvention of copyright protection have existed in EU for some time, and are being expanded in, for example, Article 6 and 7 the Copyright Directive. Other examples are Article 7 of the Software Directive of 1991 (91/250/EEC), and the Conditional Access Directive of 1998 (98/84/EEC). This can hinder legal uses, affecting public domain works, limitations and exceptions to copyright, or uses allowed by the copyright holder. Some copyleft licenses, like GNU GPL 3, are designed to counter that.WEB,weblink A Quick Guide to GPLv3, Smith, Brett, Free Software Foundation, 2007–2010, 2013-02-15, Laws may permit circumvention under specific conditions like when it is necessary to achieve interoperability with the circumventor's program, or for accessibility reasons; however, distribution of circumvention tools or instructions may be illegal.In the context of trademarks, this expansion has been driven by international efforts to harmonise the definition of "trademark", as exemplified by the Agreement on Trade-Related Aspects of Intellectual Property Rights ratified in 1994, which formalized regulations for IP rights that had been handled by common law, or not at all, in member states. Pursuant to TRIPs, any sign which is "capable of distinguishing" the products or services of one business from the products or services of another business is capable of constituting a trademark.Katherine Beckman and Christa Pletcher (2009) Expanding Global Trademark Regulation Wake Forest Intellectual Property Law Journal 10(2): 215–239

Use in corporate tax avoidance

{{see also|Corporate tax haven}}}}}}Intellectual property has become a core tool in corporate tax planning and tax avoidance.WEB,weblink Intellectual Property and Tax Avoidance in Ireland, Fordham Intellectual Property, Media & Entertainment Law Journal, 30 August 2016, Intellectual property (IP) has become the leading tax-avoidance vehicle.WEB,weblink Intellectual Property Law Solutions to Tax Avoidance, UCLA Law Review, 2015, JOURNAL,weblink Patently problematic, The Economist, August 2015, IP is a key component of the leading multinational tax avoidance base erosion and profit shifting (BEPS) tools,WEB,weblink Intellectual Property Tax Planning in the light of Base Erosion and Profit Shifting, University of Tilburg, June 2017, WEB,weblink Profit Shifting and "Aggressive" Tax Planning by Multinational Firms, Centre for European Economic Research (ZEW), 3, October 2013, which the OECD estimates costs $100–240 billion in lost annual tax revenues, and includes:{{ordered list|type=lower-romanroyalty payment schemes to profit shift income from higher-tax locations to lower-tax locations (such as the Facebook 2012 double Irish and the Microsoft 2015 double Irish arrangement#Replacement by single malt>single malt BEPS tax schemes);HTTPS://WWW.FT.COM/CONTENT/CA64F938-5DC0-11E3-95BD-00144FEABDC0>TITLE='DOUBLE IRISH' LIMITS FACEBOOK'S TAX BILL TO €1.9M IN IRELANDDATE=5 DECEMBER 2013, MULTINATIONALS REPLACING 'DOUBLE IRISH' WITH NEW TAX AVOIDANCE SCHEME>URL = HTTPS://WWW.RTE.IE/NEWS/BUSINESS/2017/1114/919979-MULTINATIONALS-USING-NEW-ARRANGEMENT-TO-REDUCE-TAX-BILL/DATE = 14 NOVEMBER 2017, withholding tax protections (such as the circa 2007 Google dutch sandwich BEPS tax scheme);HTTPS://WWW.BLOOMBERG.COM/NEWS/ARTICLES/2018-01-02/GOOGLE-S-DUTCH-SANDWICH-SHIELDED-16-BILLION-EUROS-FROM-TAX PUBLISHER=BLOOMBERG, 2 January 2018, intangible assets which can be expensed against taxation in certain IP-beneficial regimes (such as the Apple 2015 Irish double Irish arrangement#Backstop of capital allowances>capital allowances for intangible assets BEPS tax scheme);HTTP://ECONOMIC-INCENTIVES.BLOGSPOT.IE/2018/01/WHAT-APPLE-DID-NEXT.HTML>TITLE=WHAT APPLE DID NEXTDATE=24 JANUARY 2014, HTTPS://WWW.CFR.ORG/BLOG/TAX-AVOIDANCE-AND-IRISH-BALANCE-PAYMENTS>TITLE=TAX AVOIDANCE AND THE IRISH BALANCE OF PAYMENTSDATE=25 APRIL 2018, tax inversion to Ireland).HTTPS://WWW.IRISHEXAMINER.COM/BUSINESS/FIRM-GETS-TAX-RELIEF-ON-7BN-RIGHTS-211760.HTML WORK=IRISH EXAMINER, 24 January 2012, }}In 2017-2018, both the U.S. and the EU Commission simultaneously decided to depart from the OECD BEPS Project timetable, which was set up in 2013 to combat IP BEPS tax tools like the above,WEB, BEPS Project Background Brief,weblink OECD, January 2017, and launch their own anti-IP BEPS tax regimes:
  • U.S. Tax Cuts and Jobs Act of 2017, which has several anti-IP BEPS abuse tax regimes, including GILTI tax and the BEAT tax regimes.WEB, A Hybrid Approach: The Treatment of Foreign Profits under the Tax Cuts and Jobs Act,weblink Tax Foundation, 3 May 2018, WEB,weblink Trump's US tax reform a significant challenge for Ireland, The Irish Times, 30 November 2017, WEB,weblink Donald Trump singles out Ireland in tax speech, The Irish Times, 29 November 2017,
  • EU Commission 2018 Digital Services Tax, which is less advanced than the U.S. TCJA, but does seek to override IP BEPS tools via a quasi-VAT.WEB,weblink Why Ireland faces a fight on the corporate tax front, The Irish Times, 14 March 2018, WEB,weblink EU digital levy could hit tech FDI and tax revenue here, Irish Independent, 21 March 2018, WEB,weblink What the EU's new taxes on the tech giants mean - and how they would hurt Ireland,, 24 March 2018,
The departure of the U.S. and EU Commission from the OECD BEPS Project process, is attributed to frustrations with the rise in IP as a key BEPS tax tool, creating intangible assets, which are then turned into royalty payment BEPS schemes (double Irish), and/or capital allowance BEPS schemes (capital allowances for intangibles). In contrast, the OECD has spent years developing and advocating intellectual property as a legal and a GAAP accounting concept.WEB,weblink New UN tax handbook: Lower-income countries vs OECD BEPS failure, Tax Justice Network, 11 September 2017, The EU Commission's €13 billion fine of Apple's pre 2015 double Irish IP BEPS tax scheme, is the largest corporate tax fine in history.WEB,weblink Apple vs. the E.U. Is the Biggest Tax Battle in History, Foroohar, Rana, 30 August 2016, Time, 14 November 2016,

See also



{{Reflist |colwidth = 30em}}


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M.R.M. Parrott