What The Swedish Pirate Party Wants With Patents, Trademarks, And Copyright

This afternoon, I’ll make a presentation to a group of patent lawyers in Stockholm, with the title “What does the Pirate Party want with Patents, Trademarks, and Copyright?”. Here’s a rough summary of what I’m about to tell them, including a few links that will probably get mentioned.

Patents should be abolished as soon as possible. An increasing amount of research, predominantly in the United States, shows us that the patent system as a whole has a negative effect on society. It can be positive for specific actors (mostly pharma companies and patent trolls), but for society as a whole, the patent system is damaging to innovation, to competition, and to economic growth.

The study The Case Against Patents (25 pages) by Michele Boldrin and David Levine at Washington University in St Louis is a good read on our view of the patent system (summary here).

When it comes to pharmaceutical patents, we agree that it’s not feasible to abolish the patent system and hope that the market makes sure enough research just happens anyway. Therefore, we’d like to replace pharmaceutical patents with the system known internationally as delinkage. It means that pharmaceutical research is financed directly from the public coffers, with research results made freely available for anyone to use in any way, spurring a free competition between manufacturers of generic (non-patent-encumbered) drugs. This system would save at least half of the taxpayers’ bill for pharmaceuticals, while at the same time channeling more money to research. As a positive side-effect, besides the savings, it would also save hundreds of thousands – or millions – of lives in the third world.

When it comes to patents in all other areas, we’re willing to listen to anybody and everybody who believes they can show that the patent system provides any kind of net positive effect to society in additional areas, but so far, nobody has been able to show such a net positive (with the exception of pharma). In every such case, the burden of proof is on those who argue for an introduction or continuation of these governmentally-sanctioned monopolies, and not on us who argue for their abolition.

Trademarks are basically good, as they primarily serve as consumer protection. If it says “Coca-Cola” on the can, I know that The Coca-Cola Company guarantees its quality. If I am dissatisfied with the product, I know where I can go to complain, but if I like it, I also know where I can go to get more. This also gives the trademark system a long-term effect of rewarding good and honest companies. While this is a positive effect, the protection of consumers is the foundation and the most important.

In some countries, like France and Italy, the trademark rights have grown to also include punishments for consumers who buy counterfeit goods (either because they want to, or because they were fooled to). This is a bad development that we’re firmly against. The legitimacy of the trademark system comes from protecting consumers. Should it be distorted into legislation that punishes consumers, like patents and copyrights do, it would lose its legitimacy.

Compared to patents and copyrights, it seems that the trademark business has kept their house cleaner against degenerate subversion, and the trademark practices haven’t fallen for the same unhealthy expansion as the patent and copyright laws have. There have been a few upsetting cases of abuse or attempted abuse, like when Louis Vuitton tried to censor a Danish artist “to protect its brand” (it’s likely they haven’t done anything more damaging to the brand in modern years), or when a guitar maker who got the phrase “Born to Rock” registered as a trademark for guitars starts suing T-shirt vendors to ban them from printing the phrase at all, despite clearly not being used as a trademark in the latter case.

This type of abuse must be fought down, primarily by the industry itself, secondarily by the courts, and tertiarily by legislators if nothing else works. But the foundation of trademark law remains sound: forcing and rewarding honesty towards consumers.

Copyright must be reformed. We’d like to keep the copyright monopoly for commercial use (but with shorter, more sensible terms of protection). The big problem is that copyright has expanded in the past 20 years, going from being something that only corporations needed to care about, into something that criminalizes the entire young generation (and more and more people who aren’t even particularly young anymore).

The Swedish Pirate Party wants to;

  • Legalize file-sharing and other non-commercial sharing of culture between private individuals, both up- and downloading. As a direct consequence, search engines like The Pirate Bay will also be legal, as nobody can be charged with “aiding and abetting” an activity that is fully legal in itself (the file-sharing between private individuals).
  • At most 20 years of protection from the publication of a work. Among other things, this also solves the problem with orphan works and the “black hole of the 20th century”.
  • Registration after five years. Rightsholders who want to keep using their commercial monopoly after the first five years must register their works, so that commercial users who want to pay for use know where they can get a license to do so. This also solves the problem with orphan works.
  • Sensible regulation for quotations, parodies, and remixes even when it comes to audio, video and more (today, you can only quote text – Ed.), and a harmonization within the EU of exceptions to copyright (“exceptions and limitations”).
  • A ban on DRM (digital restriction mechanisms), or at a bare minimum, making it explicitly legal to break digital restriction mechanisms if needed for any use that is itself legal.

If we reform copyright law according to this proposal, it would solve 99% of the serious problems that today’s copyright causes, while at the same time, 99% of the business models that work today in the entertainment and cultural sectors would keep doing so if the companies would adapt ever so slightly to a new world.

It’s not just the Swedish Pirate Party that thinks copyright law should be reformed like this. Since one year back, it’s also the official position of the entire Green group in the European Parliament.

There’s more on this proposal for copyright reform in the book The Case For Copyright Reform, written by me and Rick Falkvinge, the founder of the Pirate Party. The book is available for a free download as an e-book, or available at-cost as a print-on-demand book, at copyrightreform.eu.

This is a translation of an article originally in Swedish at MEP Engström’s blog.


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  2. jimbo

    there is so much good sense in these proposals. my first concern is how many lawyers are even going to bother to attend the meeting? regardless of the numbers, how many will take any notice? how many will use the proposals to forewarn whoever they work for so as to get a strategy prepared ready to combat the proposals? how many will shout down the proposals, not because they are wrong or make no sense, but simply because they cannot bear to think of the future and a new way of things being done, whereby there are others (the customers) being considered, for a change?

    i wish you every success but i am sure you already know the uphill battle you have against the legacy industries and the execs. i read that the worst parts of ACTA have already been re-introduced in the equally ‘conducted in secret negotiations’ of CETA. to stop all these ‘secret meetings’ that involve only those that will be able to maintain their grip, on copyright in particular, leaving out the consumer and their representatives, would be a good start!!

    1. Anonymous

      I fear Jimbo Is right, CEPA, and worse TTP have many ACTA in itself.
      Which does not mean that they should not be fought in order to preserve as much culture for the future as possible and not let get the big money win everything.

    2. Caroline

      I fear Jimbo Is right, CEPA, and worse TTP have many ACTA in itself.
      Which does not mean that they should not be fought in order to preserve as much culture for the future as possible and not let get the big money win everything.

  3. printersMate

    Specifically allowing capture of images of real objects in photographs and films, along with images of picture, tv or film clips should be permitted without any requirement for a license. Also capture of pieces of music as an incidental part of a film should be permitted. By incidental part is meant radios playiing in the background, and not music specifically mixed into the sound track.
    The intent is to enable photographs and films to be made without incurring copyright problems on props or real world backgrounds.
    Trade mark protection should be limited to goods and services to prevent false advertising. Also it should be limited to the registered trademarks or confusing close similar marks. Real names and words shoild not be registrable unless there is a specific graphic element in the registration.
    The intent is to prevent copyright or trade marks to be used to block comment or get royalties from works wher the included object/image is part of the ‘background’ to the real work.

    1. John

      Thanks for mentioning background incidental sound.

      Currently this is an absurd nightmare for indie filmakers in a city with music playing out from numerous venues you have no control over.

  4. Sebastian Wittenstein

    Hey, I have a very useful area where patents do serve a purpose. I am a small time entrepreneur trying to break into the manufacturing industry, a capital intensive sector of the economy with lots of entrenched players. If not for patents, anyone I discussed my product with in order to get price quotes or see if they are interested in buying my product would be able to turn around and make the product without me.

    Please remember that the economy is more than just software and computer hardware, there are many “low tech” sectors that account for a large section of the economy that still rely heavily on patents to function, especially since it could take me as long as a decade to really establish my company. If there were no patents for consumer goods, I would never make it to the point that it would be worth my time and effort.

    So any innovation that is not inherently obfuscated, food recipes and software for example, quickly become money losing operations, since without the monopoly of patents the R&D costs will never pay for themselves.

    The solution is a patent that expires in the correct time frame, usually after a 1-5 product life cycles. For a washing machines that might mean somewhere between 5 and 20 years. For a product like mine, a better fit might be 3 to 10 years. And for a lot of software that might be less than a year to as long as a decade, depending on the nature and complexity of the software.

    The solution I think is that patents should be limited by type, which would be determined by the lifespan of the product, as well as the difficulty in manufacturing and developing the product.

    So a patent for a car part, which would have a long lifespan 5-20 years, depending on the car, high manufacturing costs, and high development costs, which would result in a relatively long patent lifespan. A computer OS might have a mid-term lifespan of 1-5 years depending on the company, close to zero manufacturing costs (data transmission has gotten rather cheap these days), and a low to high manufacturing costs, depending on the company.

    The problem people have been having is that the patent systems so far have been a one size fits all approach. While this is easier for the bureaucracy it is a nightmare for the rest of the economy. Software does not last as long in the market place, for a large number of reasons, as a number of physical goods. How often do you update your phone’s OS compared to updating your refrigerator?

    The solution is not to abolish patents, nor is it to leave patents as they are, but to find a middle path; one that protects innovators enough to make innovation worthwhile, but not so much protection that other innovators cannot build on the works others.

    1. Rick Falkvinge

      Regrettably, patent monopolies never work for small entrepreneurs. See this article for a depressing but true description of reality:


      1. 6.941

        Well, that doesn’t need to be a case for abolition, if reform suffices. It’s hard to keep a published patent under global restrictions, but not so much to provide case-by-case protection for the innovator in specific negotiations. It shouldn’t be so different from contract enforcement. It would be expensive, but not prohibitively so, provided that patentability is held to more demanding standards. That alone would go a long way.

        1. Rick Falkvinge

          The linked paper by Boldrin/Levine explains in detail why reform doesn’t suffice. The short version of it is that any patent system, even if utilitarily functioning, will quickly degenerate into something that only favors patent trolls and patent lawyers.

          So any starting point where patents exist is basically bad for any future society.


    2. printersMate

      Remember that a patent, and copyright for that matter, are essentially a license to sue if someone infringes. Therfore unless you can afford the legal fees, or can find a lawyer to act for free, there is little you can do to tackle infringement.
      Sometime bringing infringement to the attention of the infringer may have results, as may publicity. However a legal fight is expensive, which gives advantage to the rich, and large corporations.

      1. Anonnymoose

        As I see it, there are three key issues with patents:
        disclosure is virtually meaningless
        non-obviousness is very weak, especially in some fields
        the common man can’t sue a rich company without the support of a union or charity (such as the EFF)

        The first is relatively easy to deal with: patent offices should employ a group of raw graduates in various fields, and each application should be passed to them. If they can’t figure out how to implement the idea from the description, the patent hasn’t disclosed anything useful and thus is invalid.

        The second is more difficult, because a lot of things are obvious once you see them, and quite a lot of patents are obvious solutions to non-obvious problems.

        The third is probably the largest problem, and real needs to be fixed even apart from the question of patents. I don’t really know how to fix that, but that is probably the biggest issue which gives large companies power over individuals other than their ability to buy legislators.

  5. Eric Hopper

    I see a possible use for a patent-like entity in software. Or maybe it should be made a provision of copyright law….

    It’s really awful to have all this software around that everybody uses and have no source code. If I had a document created with Microsoft Word from 1995, I have no clue how I would get it into a modern format anymore. I would not be at all surprised to learn that not even anybody at Microsoft could.

    I would like to make getting certain kinds of IP protection on software contingent on providing the source code for it. If 3D printing achieves the ultimate goals of the major proponents of that technology, it could perhaps be extended to cover models for 3D printed items as well. The net public benefit as access to the source, and I’m willing to give something up in order to get that.

    1. Rick Falkvinge

      So, riddle me this, then:

      If somebody didn’t want to give out their source code, but were obliged to by law, how do you think that source code would look once they had released it? It would likely be run through multiple obfuscators and be useless for the purpose you envision.

      Also, the delineation between source code and binary code becomes unclearer by the day – I’m not sure you can even define source code, but I’m pretty sure you can’t legally define source code to mean what you want, namely readable and maintainable source code?

      My point is, if somebody doesn’t really want to release their source, they won’t do so in any useful kind of format.


      1. Eric Hopper

        That’s a fair point. The GPL makes an attempt to specify exactly what they mean by this. But the GPL has the advantage of having almost all projects start in public and there also being a strong culture of programmers who support it and enforce community norms (aka punish defectors).

        Something so broad as patent law that covers everybody, not just people who are part of a particular sub-culture with it’s own internal systems for punishing defectors would have the strong tendency to go the way of current patent law.

        And current patents, despite their original intent, are purposely designed to be very obscure and legalistic as opposed to a simple and clear engineering focused description of how to solve the problem. Which, to me, is the prime evidence for their utter failure to further the purpose for which they were originally envisioned (which, BTW, is not rewarding inventors).

        So, you’re right, that is an interesting puzzle, and I will have to think of a way to arrange incentives such that this wouldn’t happen before I propose this as a serious policy direction instead of as a toy idea.

        1. passstab

          will there be exeptions for free software?
          one consequence i see of this is that noone will be required to comply with the GPL

        2. anonnymoose

          Unfortunately, there has not (AFAIK) been a GPL-infringement case relating to publishing obfuscated code, which is a shame since that would be a good basis for such a law.


          It wouldn’t harm the GPL: it would have no effect for the first 2 years, then after that would require the holder to either publish the source or lose their copyright.. Of course, it wouldn’t actually be open source, but it would enter the PD with the source published, so it would be like a time-delayed version of the GPLv2.

  6. 6.941

    Mr. Wittenstein has already addressed some of my concerns, but here’s my .02BTC.

    I agree with most of what you have to say on the topic of copyright and trademarks. There are doubtless many pirates/readers who would abolish copyright entirely, bu that’s hardly fair (or even pragmatic), so it’s good to see this viewpoint articulated. I have doubts about your stance on patents, though. While the current system is a shitpile, abolishing patents in all forms would in many cases make innovation the exclusive domain of large companies — those that can do research, production and sales rapidly, in-house. This is especially the case with fields like IT, where significant market advantage is often measured in times of less than a year.

    As far as pharma goes, the idea of delinkage makes good sense. I wouldn’t mind seeing the industry split (insofar as funding goes) research and production. One of the big advantages, especially if research initiatives are funded by governments, could be that research can be directed towards what is best for the health of the population in general, not just what is lucrative. That’s if governments prove competent at designating research targets, of course. I personally wouldn’t put too much faith there (individual states being prone to working at cross purposes), preferring to push for an international research body, perhaps directed by the UN or a similar entity — or maybe some sort of balance of powers between pharmaceutical manufacturers.

    1. Eric Hopper

      This is a story about how new ideas end up in the marketplace that isn’t true.

      Almost all large companies nowadays purchase teams of people who’ve implemented a new idea. And this is for a very good reason that has nothing to do with patents.

      New ideas are surrounded by a small group of people who know them, nurture them and grow them. People who are committed to the ideas and understand them intimately.

      Your chances of creating this around a knockoff of the original idea are very small. Especially if you are a very large organization. The best you will likely be able to do is create a group of people like this who are committed to and interested in a related but very different idea. And even that’s not very likely (though much likelier than actually duplicating the original idea).

      So if you want to own the idea, the best thing to do is buy the team that created it. And that’s exactly what large technology companies do nowadays.

      It may work differently for other technology areas. I’m only intimately familiar with the world of software and web services. But that’s how it works in the industry I’m familiar with.

  7. passstab

    i like most of this but banning DRM seems like a bad thing to disscuss at this point
    i’v read the book (and loved it for the most part)

    i think you should give all the other proposals a try
    if breaking DRM and shareing is legal (but DRM isn’t banned)
    two things should (or at least might) happen
    First a lot more energy will be put into breaking DRM(which IIUC is only effective due to the law anyways)
    Secound consumers will be more dissaitfied with the inability to do that which is perfictly legal

    these laws will only be effective in your jurisdiction (EU or sweeden,i’m not sure :P) thus
    there will probably be content that is made for the rest of the world and illigal in sweeden
    (other then thru shareing) thats not so bad but i can’t see it going well with others
    and i think it’s unnessesary

    We only need to stop one generation of fear based media,
    let’s not introduce unnesesary regulation in the process.

  8. Graham

    I wonder why anyone wastes time publishing a proposal that has zero percent chance of success. It took the US 10 years to make minor changes to the US patent system. The US patent system is constitutional and will never be abolished. Perhaps some European country will consider the idea, but given the size of the US market, it will make no difference. In full disclosure, I have earned over $300 million in the last 7 years enforcing US patents.

    1. Rick Falkvinge

      If you think your ideas have zero percent chance of success, then they have.

      Remember now, this is the blog of somebody who, without any money, fame, or resources, became the largest part for people under 30 and put two people (out of Sweden’s 20) in the European Parliament.

      This is doable, especially since it only takes one country to do it, and the rest would be forced to follow.

      As for the US patent system being “constitutional”, isn’t that kind of a red herring? The US Constitution expressly permits Congress to create these kinds of monopolies when they can be shown to “promote progress and the useful arts” – the patent system is by no means guaranteed in the constitution as such, the constitution just allows the US Congress to create laws with such monopolies on that condition. Speaking of which, it can be argued whether that condition is even true any longer…


      1. Johan

        Ah… this is interesting.

        When I talk to friends who “know more than me” – lawyers, people majority in political sciences, Americans (me I am just a Swedish engineer) – they all claim this to be nice and all, but a total lost cause. “Don’t bother your pretty head, it is completely impossible without a apocalypse happening first.”, as one of them said.

        They claim that international regimes spell that no nation, no matter the national political landscape, could change patent laws and copyright laws almost at all. And certainly not as drastically as we would need it changed.

        Now I have not yet understood what the consequences would be for a country trying? Abolishment from the UN? I can live with that. Trade embargoes? I could probably live with that for a your or two. My friends however seem to believe there will be no consequences – the reason it can’t happen they say, is because It is just plain impossible.

        And now you say that “This is doable, especially since it only takes one country to do it, and the rest would be forced to follow.”

        If I read your book, would I learn more about this? Or can you maybe link to some article discussing the feasibility of actually changing the patent laws?

        ((I hope I made myself clear and did not ramble too much – a couple of all-nighters into a project have made me a bit “all over the place”, and also apparently made me overuse quotation marks…))

        Best regards,
        Johan (who voted for you guys)

        1. Eric Hopper

          I have noticed that people who have a great deal invested in a particular system have a very difficult time seeing how anything but the system they’ve become invested in can exist.

          They may be very bright and know the system they’re a part of very well. But the idea that it could be different in some really major way is just alien.

          So, if you want ideas about reforming patent or copyright that are true big changes, don’t ask people who are currently strongly invested (whether financially, or because they’ve been studying or working extensively within it) in the system as it is.

        2. Anonnymoose

          Even under WTO rules, countries can define how much disclosure they require, how obvious something can be, and where the boundaries of patentability lie. If they were very strict about disclosure and non-obviousness, and completely excluded software and business methods, a lot of patent abuse would go away.

          Copyright is more of a problem, since it would require international agreement to reduce copyright terms without being thrown out of the WTO. However, back in the 90’s the Australian government found that if it weren’t for the threat of international sanctions it would be in Australia’s net benefit to abolish copyright on everything except books. Apart from Neighbours and Home and Away, almost all Australian TV is produced to satisfy local content rules, and most of it isn’t worth commercially pirating, and australian software is mostly custom, service based, or support-based. IIRC the report also suggested working with all the other net importers and trying to reduce copyright terms. Unfortunately, the US-Aus FTA negotiations came shortly after that.

    2. Scary Devil Monastery

      You might want to read Thomas Jeffersson’s own ideas on copyright and patents. He should know, since he did serve a few years on a patent board.

      And actually, neither patents or licenses are covered by the US constitution – the formulation is intentionally vague on what sort of protection is afforded, unlike most of the other amendments which are unambiguously carved in stone.

      It would be far less of a legal stretch to abolish patents entirely in the US than the violence which has so far been offered to the first and second amendments, for instance.

  9. jimbo

    any info on the numbers that attended the talk and what way the discussions went, please? was it a total waste of time? were those that did attend only there to see how to overcome the ideas being put forward?

  10. Rutros

    Refering again to Boldrin seems to rise some questions. He has been trying to prove his idea since 10 years, without successes. If you listen to this debate at CATO. His college Juan Correa shown amongs other things that with Boldrins model FoU has no impact on productivity either and Boldin later admits that there is no good model

    See listen and enjoy

    After that I think no one except Rick& Cristian will keep the position that Patents should be abolished for economical reasons

  11. David Crafti

    One thing that I have been learning about lately is that there is one major issue with trademarks that isn’t really mentioned here: Parallel importation.

    I agree that consumer protection should be the main aim of trademarks, and to a lesser extent, manufacturer protection against, for example, having a brand tarnished by counterfeiting.

    But there has been a trend towards using trademarks to enforce artificial barriers in markets. Restrictions on parallel importation can exist where different companies own the same trademark in different regions.

    For example, if I were to buy a computer from Sweden, branded CompuBlow, and have it delivered to me in Australia, the Australian CompuBlow distributor, who owns the trademark in Australia, could sue for trademark infringement, even though the goods I have bought came from the same factory as the the goods they sell. This is because it’s not *their* CompuBlow.

    In a world where globalisation of markets has been the agenda of most governments for a couple of decades at least, this is extremely counter-productive and protectionist to allow legitimate goods to be caught up, just because there is a disparity in what people from different countries can afford to pay.

    If we’re going to have global markets, consumers should be free to purchase from whichever country works out cheapest. If restrictions on parallel importation are to be kept, then we need to reassess globalisation and free trade agreements. It’s too inconsistent the way it is.

  12. Swedish Pirate Party’s platform positions | Fusion Paranoia

    […] The Swedish Pirate Party’s plat­form posi­tions on copy­rights, patents and trade­marks. […]

  13. […] artigo, que sumariza as posições do partido, foi postado aqui, mais cedo, traduzido dooriginal em sueco. […]

  14. […] artigo, que sumariza as posições do partido, foi postado aqui, mais cedo, traduzido dooriginal em sueco. […]

  15. […] article summarizing the party positions has been posted here earlier in a translation from a Swedish original. In a […]

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