For six years I have been researching about “intellectual property”. I am not a lawyer. I am a business man, writer, and lecturer that knows a bit about technology, likes philosophy, buys, votes… and I am awake. You only need one of those characteristics to realise realize that something is wrong with the current system. But it is not as easy to pinpoint what, and it seems (from the lack of complete alternatives) even more difficult to propose what to do next.
This first chapter will deal with “what is wrong with Intellectual Property”.
From the price of music CDs to the thousands of legal suits to P2P network users or the millions of cease and desist letters sent to webmasters, the symptoms abound.
The causes? There are many theories and explanations, but most deal with one of those symptoms. “Music CDs are expensive because the Recording Industry has become an Oligopoly allied with the Media (which is itself quite concentrated and in the hands of the same parent companies as the record labels)” say some experts.
“Pure P2P networks can never be illegal, and most (if not all) of their use is not for profit” comment some other experts.
And the list goes on and on. But that approach is the same as trying to explain and cure the flu by saying “coughing is the direct consequence of an irritated throat, so cough medicine is to be administered”, and “the pain is caused by swelling so therefore anti-inflamation medicine is to be taken”, etc. That all so common approach is only temporary relief, patches that will not do any good to eradicate a pandemic. Finding the virus, and a vaccine is what we need.
What is the virus in “intellectual property”? (You will have to wait several chapters to reach the vaccine).
Amazing as it seems the main problem with “intellectual property” is that IT IS NOT PROPERTY.
Let’s analyze “intellectual property” from a conceptual level (above and removed from the legal doctrines and implications).
“Intellectual property” = “intellectual” + “property”
What is “intellectual”? According to the New Oxford American Dictionary, 2nd edition:
intellectual |ËŒintlˈek ch oÅÉ™l| |ˈɪn(t)əˌlÉ›k(t)ʃ(É™w)É™l| |ˈɪntəˌlÉ›ktʃʊəl| |-tjÊŠÉ™l|
adjective
of or relating to the intellect : children need intellectual stimulation.
• appealing to or requiring use of the intellect : the movie wasn’t very intellectual, but it caught the mood of the times.
• possessing a highly developed intellect : you are an intellectual girl, like your mother.
So, “requiring use of the intellect”. Think creativity (book, movie, music, photograph, sculpture, conversation, cooking, or even love making).
What is “property”? Again according to the New Oxford American Dictionary, 2nd edition:
property |ˈpräpərtē| |ˌprɑpərdi| |ˌprɒpəti|
noun ( pl. -ties)
1 a thing or things belonging to someone; possessions collectively : she wanted Oliver and his property out of her house | the stolen property was not recovered.
• a building or buildings and the land belonging to it or them : he’s expanding now, buying property | the renovation of commercial properties.
• Law the right to the possession, use, or disposal of something; ownership : rights of property.
• old-fashioned term for prop 2 .
2 an attribute, quality, or characteristic of something : the property of heat to expand metal at uniform rates.
For the sake of clarification, let’s also look at “possession”:
possession |pəˈze sh ən| |pəˌzɛʃən| |pəˌzɛʃ(ə)n|
noun
1 the state of having, owning, or controlling something : are you in possession of any items over $500 in value? | he had taken possession of one of the sofas | the book came into my possession.
• Law visible power or control over something, as distinct from lawful ownership; holding or occupancy : both teams attempting to gain possession of the ball | they were imprisoned for possession of explosives.
• informal the state of possessing an illegal drug : they’re charged with possession.
• (in football, basketball, and other ball games) temporary control of the ball by a particular player or team : the ball hit a defender and Brown’s quick reaction put him in possession.
2 (usu. possessions) an item of property; something belonging to one : I was alone with no money or possessions | that photograph was Bert’s most precious possession.
• a territory or country controlled or governed by another : France’s former colonial possessions.
3 the state of being controlled by a demon or spirit : they prayed for protection against demonic possession.
• the state of being completely under the influence of an idea or emotion : fear took possession of my soul.
So we can safely simplify “property” as possession and control.
Economists talk about “exclusion” and “antagonism” to characterise characterize this. An example will make it easier to understand:
A car is “property” because it can be possessed and controlled by excising exclusion and antagonism. Exclusion is excised by locking the car. Now everybody else is excluded from the car. And antagonism is excised by driving away (if I drive away with the car nobody else can drive anywhere else with the car).
So, when we put “intellectual” and “property” together we soon discover that something is not right.
Once the “intellectual work” has been released (communicated), how can it be controlled? How do you apply exclusion and antagonism to it?
Ridiculous as it may sound, some companies are really trying hard to do it and to convince politicians and stock holders that they can. By using Digital Restrictions Management (DRM), lawyers, and ever more restrictive laws, they accomplish such feats as suing The Planets for copying silence, not allowing customers (who paid for the digital version) to print a page of a book in the public domain as Plato’s Republic, or forcing taxi drivers in Finland to pay for having their car’s radio on while working.
But in the end, it cannot be done. Because the brain is the ultimate repository of culture. And the ultimate creation tool. And it cannot (it better not) be regulated. At least we should avoid a future where that option is even considered.
Once you memorize a song’s lyrics, or learn how to perform a particular piece on a piano, or write a poem… who is to stop you from doing that? Who is to tell you that you should not let others enjoy it?
To try to avoid such oversimplifications, lawmakers and lobbyist have redefined “intellectual property” in such terms as “special kind of property”, and “entitlement”.
Some countries, like Spain, even have “Authors’ rights” included in their copyright laws.
All those are sad and desperate attempts to avoid what ultimately boils down as the truth: intellectual works CANNOT be property. And they better not be.
Does that mean that we can not do business with them or make a profit out of a creative work? Au contraire, mon ami! Of course it can be done. Let me show you an extreme parallelism: Air is not property, right? At least not yet. Yet, bottled air is being sold every day to chemical businesses and even individuals (last night, at Frankfurt’s Sheraton Hotel I had at my disposal in the room minibar a bottle of “bottled oxygen” for the low price of 5.99€).
It is all a matter of finding where value is and how to realise realize it. But more on that later on.
Let’s concentrate on the validity of the claim that “intellectual property” is “property”.
The debate is not new at all. In 1813 Thomas Jefferson (3rd President of the USA) already questioned that ideas should be property. Noting that countries without patents or copyright were as inventive or more than those with the mentioned legal provisions, he did not buy the idea of “intellectual property”.
More recently Michele Boldrin (University of Minnesota) and David K. Levine (UCLA) in their book paper “The Case Against Intellectual Property” analyze quite throughly and empirically why “intellectual property” is a bad idea.
Researchers and commentators such as the Committee fro for Economic Development, the US National Academy of Sciences, The Economist, the Electronic Frontier Foundation, James Doyle (Duke University), and many others have shown their various degrees of disagreement with the current system.
The positive impact of “intellectual property” not being considered a “property”, while obvious, will be enumerated in a following chapter of this book. The “negative” impact, while non existent (for it derives in a mere “change”, but not “loss”), while will also be contemplated.
But most importantly, if we come to the conclusion (after a much needed debate but by much more relevant figures than a Spaniard free-radical) that “intellectual property” is indeed an oxymoron, and that it does not exist… what would the status of intellectual works be?
[Intro] [Chapter II]
