INTELLECTUAL PROPERTY VERSUS INTELLECTUAL PROSPERITY

I. A Term That Lies

There are terms that do their work in hiding. "Intellectual property" is one of them.

The term lumps together two fundamentally different legal systems — patent law and copyright — and pretends they are variants of the same principle. They are not. They have different origins, different logics, different effects, and different expiry dates. That they are nevertheless forced under one term is no accident. It is an act of concealment that allows the interests of Disney and the interests of an inventor in her garage to be treated as the same concern.

In English, the trick is even more elegant: Intellectual Property. The word Property does half the argumentative work on its own. For whoever argues against property always sounds like someone who wants to steal. And that is precisely the intention.

This essay separates what has been thrown together. Not because the separation is academically interesting, but because it makes visible a question that the umbrella term conceals: which of these two systems actually promotes prosperity — Intellectual Prosperity — and which prevents it?

II. The Contract — A Brief History of Patent Law

On 19 March 1474, the Republic of Venice passed a law that would change the world. The Parte Veneziana granted inventors a privilege: ten years of exclusive right to use their invention. In return, the invention had to be disclosed and practically implemented in Venice.

The principle was a bargain — and it was meant as one. The Republic wanted to attract inventors, and inventors wanted protection from imitators. Both sides gave something, both sides received something. The knowledge was not locked away but — on the contrary — published. The protection was not eternal but limited. And after the term expired, the knowledge belonged to everyone.

England followed in 1624 with the Statute of Monopolies, which abolished royal monopolies but made one exception: patents for "new inventions" remained permissible, limited to fourteen years. Here too the principle of exchange: disclosure in return for limited protection.

The logic has not fundamentally changed in five hundred years. A modern patent — whether in Europe, the US, or Japan — rests on four pillars:

The knowledge must be new. It must be inventive — that is, not obvious to a skilled practitioner. It must be practically applicable. And it must be disclosed in such detail that another skilled practitioner can reproduce it.

The term of protection is twenty years. After that, the invention is free. Anyone may use it, improve it, build upon it.

One can argue about the flaws of the patent system — and there are considerable flaws. Patent trolls who invent nothing but only litigate. Strategic patent thickets that stifle competition. Pharmaceutical companies that extend their monopolies through minimal modifications. The costs that push small inventors out of the system. All of this is real.

But the basic logic remains intact: patent law is a contract between inventor and society. It relies on openness, limits the monopoly in time, and ultimately creates a public good. The entire technical development of humanity is built on expired patents. Every generic drug in the pharmacy, every free technology in the workshop was once a protected patent.

Patent law produces — when it works — Intellectual Prosperity.

III. The Gift — A Brief History of Copyright

Copyright began as a modest instrument. The Statute of Anne, passed in 1710 by the English Parliament, gave authors fourteen years of exclusive protection for their works, renewable for another fourteen years if the author was still alive. The law was a reaction to the monopolies of London's bookseller guilds, which controlled the publishing trade. It was meant to protect authors, not publishers.

Twenty-eight years of maximum protection. That was the starting point.

Today, the term of protection in the European Union is seventy years after the death of the author. In the United States likewise — since the Sonny Bono Copyright Term Extension Act of 1998, which critics call the Mickey Mouse Protection Act, because it was passed at precisely the moment when Disney's earliest Mickey Mouse films were about to enter the public domain.

The journey from 28 years to life plus 70 — in practice often more than 120 years — is a history of systematic extension. Every time significant works were about to become public domain, the rights holders lobbied for an extension. And every time they won. The Berne Convention of 1886 established life plus 50 years as an international standard and simultaneously abolished the requirement to register. One no longer had to file anything. No office, no procedure, no disclosure. Copyright arose automatically with the work.

That sounds author-friendly. But it is not — or no longer.

For who benefits from protection that still applies seventy years after the author's death? Not the author. He is dead. The beneficiaries are the heirs, the publishers, the corporations that have acquired the rights. Copyright no longer protects the creator. It protects the owner.

And here the difference from patent law becomes fundamental:

Patent law demands disclosure. Copyright demands nothing.

Patent law is limited to twenty years. Copyright lasts well over a century.

Patent law creates a public good upon expiry. Copyright withdraws from the public good across generations.

Patent law compels a contribution to the public knowledge base. Copyright takes without giving back.

Compare two scenarios: An engineer invents a new manufacturing process in 2026. She files a patent, discloses everything, receives twenty years of protection. In 2046, the knowledge is free. — A musician writes a song in 2026. He need not file anything, disclose anything. The song is protected until at least 2146 — if the musician lives to eighty, that makes 2176. One hundred and fifty years.

In which of these two scenarios does Intellectual Prosperity arise?

IV. The Merger

That these two fundamentally different systems are grouped under one term is not linguistic carelessness. It is a political project.

The term Intellectual Property gained currency over the course of the 20th century, definitively anchored by the founding of the World Intellectual Property Organization (WIPO) in 1967 and the TRIPS Agreement of 1994. TRIPS — the Agreement on Trade-Related Aspects of Intellectual Property Rights — was the masterpiece: an international agreement, embedded in the rules of the World Trade Organization, that compressed patent law, copyright, trademark law, and trade secrets into a single framework and imposed minimum standards on every WTO member.

The driving force was American media conglomerates and pharmaceutical companies. Their logic was compelling: if everything is gathered under the term Property, the political apparatus of property protection can be mobilised for everything simultaneously. The pharmaceutical giant defending its patent monopoly and the entertainment corporation seeking to extend its copyright monopoly pull on the same rope. And whoever argues against one appears to argue against both.

The result: developing countries that needed cheap medicines had to accept Hollywood's copyright rules at the same time. Whoever protested against excessively long copyright terms suddenly stood on the side of those who also reject patent protection. Differentiation was made impossible.

The free software developer Richard Stallman described this mechanism early on: the term Intellectual Property, Stallman argued, is deliberately vague because its function is not clarity but confusion. It prevents clear thinking about each of the individual systems by suggesting they are fundamentally the same.

He is right.

V. What Patent Law Gets Right

It is easy to criticise the patent system. It is slow, it is expensive, it is riddled with abuse. In some industries — software, pharmaceuticals — it has taken forms that barely resemble its original logic.

And yet: at its core, it works.

Patent law compels knowledge transfer. Every patent application is a technical publication. The world's patent databases — the European Patent Office alone records over 150 million documents — constitute the largest technical archive in human history. Engineers use them daily, not to copy, but to learn what has already been solved and to build upon it.

Patent law sets a term. Twenty years — that sounds like a reasonable balance between protecting the inventor and serving the public interest. In practice, this balance is a fiction. In the software industry, twenty years are absurdly long — entire technological generations come and go in that time. In pharmaceuticals, they are sometimes too short for the development costs. And for fundamental inventions — new manufacturing processes, new physical principles — they are a mockery. For a fundamental innovation often takes decades before industry, training, and markets are even ready to adopt it. The world is slow. Existing structures resist. Specialists must first be trained, supply chains first built, resistance first overcome. The patent expires before the harvest begins. The inventor has spent twenty years disclosing his knowledge, defending his idea, building his market — and then, when the world is finally ready, the knowledge belongs to everyone but him.

But even that is a flattering account. In practice, the knowledge after the patent expires does not belong to "everyone." It belongs to whoever recognised its value at the right moment and stepped in. And that party pays the inventor — if at all — little, because revenues are still small, the market not yet mature. Then the original patent expires. The company develops further, files new intellectual property rights, builds its own patent portfolio on the inventor's foundation. The inventor, as the originator of the whole thing, is left empty-handed. His knowledge has not become a public good. It has merely changed owners.

Patent law promises: disclosure in exchange for limited protection, then freedom for all. Reality delivers: disclosure in exchange for limited protection, then appropriation by others who build on the disclosed knowledge and fence it in again. The inventor has lost twice — once the protection and once the harvest.

And then he loses a third time: his name. As a rule, the inventor is not even credited as the originator. The company that built on his foundation speaks of "proprietary development." The scientific literature studiously ignores him — it cites the further development, not the origin. After a generation, no one knows where it all began. The inventor has been deprived not only of the economic return but also of the recognition. He no longer exists in the history of his own invention.

Compare this with copyright: an author remains forever linked to his work. His name stands on the book, on the film, on the song — and the right to attribution is inalienable and irrevocable, even when the economic rights have long since been acquired by a corporation. Patent law formally recognises this protection of authorship — the inventor is named in the patent specification. But in practice, no one cares. Patents are cited, not inventors. And when the patent has expired, the patent is no longer cited either.

These are not isolated cases. The history of technology is full of inventions that were thirty, forty years ahead of their time. New manufacturing processes whose machines had first to be built. New materials whose applications had first to be discovered. New principles whose skilled practitioners had first to be trained. For these inventors, patent law is not a contract — it is a promise broken before it can be kept.

Patent law builds a staircase of knowledge. Each generation builds on the expired patents of the previous one. The entire industrialisation is a cascade of inventions that were once protected and then became free. Watt's steam engine, Bessemer's steel process, Edison's light bulb — all patents that expired and became the foundation of the next wave of innovation.

And patent law produces a balance of interests: the inventor is rewarded, society receives knowledge. It is an imperfect contract, but it is a contract.

VI. What Copyright Gets Wrong

Copyright has none of these properties.

It compels no disclosure. It sets no reasonable term. It builds not a staircase of knowledge but a wall. And it has no balance of interests, because it considers only one side: the rights holder.

The most dramatic failure is the question of duration. When the Statute of Anne in 1710 granted twenty-eight years of protection, one could argue that this was a fair balance: the author had his lifetime to profit from his work, and the next generation could build freely upon it. Life plus seventy years has nothing to do with this balance. It is a gift to heirs and rights exploiters, financed by the withdrawal of public domain.

The consequences are concrete. Millions of books, films, musical works, and photographs from the 20th century are so-called orphan works: still under copyright, but the rights holders are unknown, untraceable, or no longer in existence. No one may use them, no one may digitise them, no one may make them accessible. They vanish — not because someone owns them, but because no one knows who owns them, and the law prohibits by default.

This is not protection of intellectual property. It is destruction of intellectual heritage.

The second fundamental error is the abolition of registration requirements. Since the Berne Convention, copyright arises automatically. This means: there is no register. No central database. No place where one could look up who owns a work. In patent law, this information is publicly accessible, searchable, complete. In copyright, it is a labyrinth, often enough a phantom.

This benefits the powerful and harms the small. Disney knows exactly who owns its rights. The independent filmmaker who wants to use a song from the 1950s faces an insoluble task: he would need to find the rights holder, but there is no registry. He would need to obtain permission, but there is no point of contact. So he lets it go. The work remains invisible. Culture grows poorer.

The third error is the absence of any quid pro quo. Patent law demands something: disclosure, utility, novelty. Copyright demands nothing — beyond the act of creation itself. No quality criterion, no utility criterion, no obligation to publish. Every email, every shopping list, every scribble on a beer mat enjoys the same protection as a symphony or a novel. This does not formally devalue the protection, but it shows that the system makes no substantive distinction — and consequently cannot offer any substantive justification for its duration.

VII. The Digital Exposure

The internet has put both systems under pressure — but above all it has exposed the absurdity of copyright.

In a world where information can be copied at zero marginal cost, a system based on the control of copies faces an existential problem. Copyright attempts to create scarcity where none exists. It treats every copy as theft, even though a digital copy takes nothing from the original — the copier has something without the creator losing anything. Physically speaking, this is not theft. It is a process for which the old property law has no category.

The copyright industry's response was not adaptation but escalation. Digital Rights Management. Cease-and-desist campaigns. Criminalisation of file-sharing networks. The ACTA agreement. The EU Copyright Directive of 2019 with its upload filters. Every response was an attempt to adapt digital reality to analogue law — rather than the reverse.

Patent law had a different problem. Software patents, business method patents, the patenting of gene sequences — these were expansions that overloaded the system. But the basic logic was not called into question: disclose, protect for a limited time, then release. Copyright, by contrast, has destroyed its own basic logic: the time limit has become a farce, disclosure was never demanded, and release into the public domain has been postponed to the twelfth of never.

The irony is bitter: the more restrictive system — patent law, which examines, demands, limits — produces more public knowledge than the more permissive system — copyright, which examines nothing, demands nothing, and limits almost nothing.

VIII. Who Owns Knowledge?

The question behind the term Intellectual Property is: who owns knowledge?

Patent law answers: the inventor — for a while. Then the public.

Copyright answers: the creator — and his heirs, and their heirs, and the corporations that buy the rights. Practically forever.

The first answer is a contract. The second is a claim.

One can criticise both. One can argue that twenty years are too long or too short, that the patent process is too expensive or too easily abused. But one cannot deny that patent law demands a quid pro quo and recognises an obligation to return.

Copyright recognises neither. And that is why it now stands in the way of what its name promises — the protection of the author. It does not protect the author who died thirty years ago. It protects the corporation that bought his rights twenty years ago. It does not protect culture. It privatises it.

Intellectual Property is a euphemism. It sounds like innovation and progress, like protection of the creative and encouragement of the inventive. In truth, under this one roof it shelters two entirely different interests: the interest of the inventor, who discloses and after twenty years shares, and the interest of the rights exploiter, who discloses nothing and never shares.

Whoever wants Intellectual Prosperity — whoever wants knowledge, inventions, and culture to increase the prosperity of all — must separate these two interests again. And then must ask an uncomfortable question: do we need a copyright that lasts over a century, demands no disclosure, and keeps no register? Or do we need a right that fairly compensates the creator and returns to the public, after a reasonable term, what belongs to it?

Patent law has — for all its flaws — a model for this. Copyright has developed in the opposite direction. It is time to name that.

IX. Two Paths

It would be easy to end this essay with a demand: reform copyright, shorten terms, introduce registers, restore the balance. And all of that would be right.

But it will not happen. Not because the arguments are lacking, but because the power relations stand against it. The corporations that profit from copyright are the same ones that finance the political processes. Every attempt at reform is fought with the full lobbying might of an industry that has learned to use the term Property as a shield: whoever wants to shorten our terms is attacking property. Whoever demands registers is bureaucratising creativity. Whoever wants to strengthen the public domain wants to steal.

And so two paths remain, leading side by side into the future.

One path is that of patent law: imperfect, in need of reform, open to abuse — but in its basic logic a contract that creates knowledge, protects it for a limited time, and ultimately releases it. A system that produces Intellectual Prosperity, even though it never uses the word.

The other path is that of copyright: once a modest protection for authors, today a multi-generational monopoly that privatises culture, starves the public domain, and has long since let the creator it purports to protect vanish behind the interests of the exploiters.

Both are called Intellectual Property. Only one of them leads to Intellectual Prosperity.

It would be time to name the difference. Even if no one wants to listen.