What is IP Infringement?

Altug YalcintasAnkara University

altug.yalcintas@politics.ankara.edu.tr

Goods vs. Commodities

Goods: Every object consumption of which yields utilityCommodities: Any good that is produced for the purpose of being sold in the market.

* Every commodity is a good. But every good is not a commodity.

What is Property?

Property (Mülkiyet): One’s rights about a good / commodity that is possessed.

The rights to• consume, alter, share, destroy, give away• exclude others from having these rights

Property of?

(1) Property of Tangible Goods / Commodities: clothes, books, houses etc.

Two important attributions: • The law of diminishing returns (or the law of diminishing utility)• The law of diminishing quantity (or the law of scarcity)

Property of?

(2) Property of Intangible Goods / Commodities: Property of a non-physical object

(a) Services such as hairdressing, housekeeping, financial services (or bank accounts)

Property of?

(2) Property of Intangible Goods / Commodities: Property of a non-physical object

(a) Services such as hairdressing, housekeeping, financial services (or bank accounts)(b) Intellectual property

Property of?

(2) Property of Intangible Goods / Commodities: Intellectual property

Two important attributions: • No law of diminishing returns (no law of diminishing utility)• No law of diminishing quantity (no law of scarcity law of abundance

or affluence)

Types of Property

(1) Private Property (Özel Mülkiyet): Possessions of goods/commodities by individuals or groups of individuals

An important aspect of the debates about private property: (a) Natural Private Property: Body (significance: abortion and euthanasia) as well as ambition, hope, faith and other virtues (b) Artificial Private Property: Cars, houses, computers

Types of Property(2) Public Property or Commons (Kamu Mülkiyeti, müşterek): Possessions of goods (commodities) by the public (Public is different from solely groups of individuals)

An important aspect of the debates about public property: (a) Natural Public Property: Languages, norms, traditions (solidarity, kinship etc.), national security, traffic, air pollution, Web 2.0 (Twitter, Facebook, Google etc.)(b) Artificial Public Property: Seefloor, Antarctica, companies, factories

Types of Property

(3) State Property (Mülk): Possessions of goods / commodities by the state (State is different from solely groups of individuals)

An important aspect of the debates about state property: (a) Natural State Property: Laws and written rules applicable to the entirety of the society(b) Artificial State Property: Companies, banks etc.

What is Intellectual Property?

Intellectual Property (Fikri Mülkiyet): Possession of intellectual goods / commodities by the individuals, the public, and the state

What is an IP Commodity?Knowledge goods and knowledge services produced to be sold in the markets of ideas.

• Examples: scientific articles, books, referee reports, course syllabi, lectures, algorithms, computer codes as well as trademarks, patents, designs.• IP commodities are produced in processes in which knowledge is

the main factor of production.• Basic incentive: profit making.

About IP

• If IP is natural, why is IP law enforced (or: why does the state exist)? • If IP is not natural, what else do we need other than laws of IP (or the

state)?

Intellectual Property Enforcement vs.

Intellectual Property Infringement

Intellectual Property Enforcement

Nation States and Sovereignty

• Various regimes of law• Importance of international organisations

Case Study (1): Photocopying and Copy Centres (Type X)• The intellectual economy produced as a result of academic activities

at universities• Markets of housing, dining, postage, health, insurance etc.• Photocopying and copy centres: stationery, souvenirs, lecture notes, course

syllabi, copies of journal articles and chapters of (or whole) books

• A recent development in India – “OUP and other Publishers Withdraw Copyright Suit Against Delhi University and Photocopier”:

https://spicyip.com/2017/03/breaking-news-oup-and-other-publishers-withdraw-copyright-suit-against-delhi-university-and-photocopier.html

Further Cases“Ten Famous Intellectual Property Disputes”http://www.smithsonianmag.com/history/ten-famous-intellectual-property-disputes-18521880/

Such as:• Invention of calculus: Leibniz (1684) or Newton (1704)?• MP3 file sharing: A&M Music (Universal) vs. Napster (1999)

Intellectual Economy ≡

markets of goods and services +

markets of ideas

What is a Market?

A public space where the individuals and groups of individuals come together for the purposes of production, exchange (or communication), and consumption• Often, decisions are made in individual and decentralized fashions• Not only individuals, but also governments and non-

governmental / public organisations also take part in market processes

Markets often fail!

What is Market Failure?A situation in which the process of production, exchange, and consumption are executed in the absence of ideal conditions.

• Ideal conditions: efficiency, optimality, and welfare• Examples: factories polluting air, shops producing excessive noise

in a residential neighbourhood, traffic jams etc.

What are the Causes of Market Failure?•Moral hazard/imperfect information/informational

asymmetry• Bounded rationality•Monopolisation/market power• Externalities (social costs>private costs)• The tragedy of the commons and the free rider problem• High transaction costs

What are the Consequences of Market Failure?• Second best outcomes• Government intervention (also: government failure)• Overconsumption of demerit goods (illegal drugs)• Underproduction of merit goods (education, health)•Misallocation of resources and violation of property rights(empty houses and homelessness)

The Tragedy of the CommonsConsumption of goods (common property) by individuals in excessive amounts as such that others cannot benefit from the consumption of the same good as much as they should

• Examples: fishery, overpopulated grazing animals, overexploitation of clean water• Personal gain vs. well-being of the society• Short term interests vs. long term interests• Free Rider Problem: A free rider is an individual who does not pay for a good or

service for which other individuals pay. Examples: public transportation, libraries, wi-fi, clean water etc.

Original source: Garrett Hardin. 1968. “The Tragedy of the Commons” Science 162 (3859): 1243-1248.

The Tragedy of the Commons

Three Conditions• The law of diminishing utility• The law of diminishing quantity (or the law of scarcity)• Absence of social cooperation and awareness

The Tragedy of the Commons

Questions• What if abundance is natural and scarcity is artificial?• What if the members of the community are aware of the

consequences of a possible “tragedy”?

What is a Market of Ideas?A public space where individuals and groups of individuals come together for the purpose of taking part in the processes of producing, exchanging, and consuming (or “prosuming”) IP commodities

• Examples: conference halls, classrooms, labs, (online) forums etc.• MoIs are occupied by myriad of scholarly norms and rules.• Often times, “production, exchange, and consumption” is

“prosumption”

What is Failure in the Market of Ideas?A situation in which the prosumption processes of IP commodities are executed in the absence of ideal conditions.

• Examples: Significant economies of pirated IP commodities that include plagiarised articles and books, research projects in which conflicts of interest are involved etc. • Idealty in the markets of ideas implies zero IP infringement.• General idealty (or “general equilibrium”) is a myth!• Often times, market failure is systematic.

What is Failure in the Market of Ideas?Absence of idealty in the market of ideas:

• TYPE 1: Uncorrected errors, misconceptions, miscalculations etc.• Epistemic costs, replication failure etc.

• TYPE 2: Violation of the laws and the ethics of IP :• Plagiarism and self-plagiarism, fabrication, manipulation, violation of data privacy and

data openness, ghost authorship, mass authorship, citation cartels etc.

• TYPE 3: Questionable research practices (or QRPs): • Conflicts of interest, underrepresentation (of women and of critical perspectives),

ineffective processes of peer reviewing, mobbing and bullying, academic capitalism (high tuition fees, high journal subscription fees, high book prices, student loans etc.)

What is IP Infringement?*Actions of individuals or groups of individuals that cause the intellectual economy to fail.

• IP infringements have negative (degenerating) effects in the economy and in the scientific research. • The cases of IP infringement in the economy usually involve

pirated commodities.• The cases of IP infringement at universities usually involve QRPs. • Examples: plagiarism, fabrication of data, falsification of data,

conflicts of interest, fraud.

* Withstanding various governmental, non-governmental, and academic definitions of the conception.

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Intellectual Economy

Markets of Goods and Services

Markets of Ideas

IP In

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Type X: photocopying, violation of the registered university names (such as Mülkiye)

Type 1, Type 2, and Type 3

Case Study (2): Replication Failure (Type 1)

Source articles:• Carmen M. Reinhart and Kenneth Rogoff. 2010a. “Growth in a Time of

Debt” AER: Papers and Proceedings 100 (May): 573-576• Thomas Herndon, Michael Ash, Robert Pollin. 2013. “Does high public

debt consistently stifle economic growth? A critique of Reinhart and Rogoff” Cambridge J of Economics 38 (2): 257-279

Case Study (3): ResearchGate.com (Type 2)Source article:• Hamid R. Jamali. 2016. “Copyright Compliance and Infringement in

ResearchGate Full-text Journal Articles” Scientometrics, November, DOI 10.1007/s11192-017-2291-4 • 500 English journal articles (108 articles (21.6%) OA or hybrid)• 61 articles (%15.6) preprint• 24 articles (6.1%) postprint• 307 articles (78.3%) publisher version (PDFs)

• Non-OA journals (392 in total)

• 201 (51.3%) infringed copyrights

Research Misconduct and QRPs (Type 3)

Source: http://www.vib.be/en/news/Pages/Research-misconduct---The-grey-area-of-Questionable-Research-Practices.aspx

Research Misconduct and QRPs (Type 3)

Source: http://www.vib.be/en/news/Pages/Research-misconduct---The-grey-area-of-Questionable-Research-Practices.aspx

Case Study (4): Inside Job (2010) (Type 3)

Case Study (4): Inside Job (2010) (Type 3)Other movies that might be of interest:• The Flash of a Genius (2008)• The Words (2012)• Ivory Tower (2014)• Merchants of Doubt (2014)• The Stanford Prison Experiment (2015)• Starving the Beast (2016)• Hypernormalisation (2016)

* The issue of post-truth

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* Patents and copyrights

What is IP Infringement?Definitions provided by the governmental organisations • Global: World Intellectual Property Organization• In the US: Office of Research Integrity, Office of the Inspector General,

US Office of Science and Technology Policy, National Science Foundation• In Europe: European Science Foundation • In Turkey: YÖK (Higher Education Council), TÜBİTAK (The Scientific and

Technological Research Council of Turkey), TÜBA (Turkish Academy of Sciences), ÜAK (Inter-university Council)

What is IP Infringement?Definitions provided by non-governmental organizations:• Universities and Research Institutes• Professional Associations: American Economic Association, European

Economic Association, Türkiye Ekonomi Kurumu• NGOs: Committee for Publication Ethics (COPE), Retraction Watch

So What?In cases of market failure, it is very likely that

• the number of cases of IP infringement and • the economic significance of IP infringement

are high.