02 April 2012 Written by  Balew Mersha G/Hiwot Hadush

Some problems with intellectual property

Governments generate large quantities of information. They produce statistics on population, figures on economic production and health, texts of laws and regulations, and vast numbers of reports. The generation of this information is paid for through taxation and, therefore, it might seem that it should be available to any member of the public. But in some coun­tries, some of this information is turned over to corporations that then sell it to whoever can pay. Publicly funded information is "privatized" and thus is not freely available (Nelkin 1984).

When government-produced information is retained by the govern­ments, things may not be much better. As in the case ofDocuments on Australian Defence and Foreign Policy illustrates, copyright is one tech­nique used to keep information away from the public.

The idea behind patents is that the fundamentals of an invention are made public while the inventor for a limited time has the exclusive right to make, use or sell the invention. But there are quite a few cases in which patents have been used to suppress innovation (Dunford 1987). Companies may take out a patent, or buy someone else's patent, in order to inhibit others from applying the ideas. For example, from its beginning in 1875, the US company AT&T collected patents in order to ensure its monopoly on telephones. It slowed down the introduction of radio for some 20 years. In a similar fashion, General Electric used control of patents to retard the introduction of fluorescent lights, which were a threat to its market of incandescent lights. Trade secrets are another way to suppress technolog­ical development. Trade secrets are protected by law but, unlike patents, do not have to be published openly.

One of the newest areas to be classified as intellectual property is biological information. US courts have ruled that genetic sequences can be patented, even when the sequences are found "in nature," so long as some artificial means are involved in isolating them. This has led companies to race to take out patents on numerous genetic codes. In some cases, patents have been granted covering all transgenic forms of an entire species, such as soybeans or cotton (Mestel 1994). One consequence is a severe inhibi­tion on research by non-patent holders. Another consequence is that transnational corporations are patenting genetic materials found in Third World plants and animals, so that some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries (Shiva and Holla-Briar 1993).

More generally, intellectual property is one more way for rich coun­tries to extract wealth from poor countries. Given the enormous exploita­tion of poor people built into the world trade system, it would only seem fair for ideas produced in rich countries to be provided at no cost to poor countries. Yet in the GATT negotiations, representatives of rich countries, especially the US, have insisted on strengthening intellectual property rights. Surely there is no better indication that intellectual property is primarily of value to those who are already powerful and wealthy (Drahos 1995; Patel 1989).

The potential financial returns from intellectual property are said to provide an incentive for individuals to create. In practice, though, most creators do not actually gain much benefit from intellectual property. Independent inventors are frequently ignored or exploited (Lancaster 1992). When employees of corporations and governments have an idea worth protecting, it is usually copyrighted or patented by the organization, not the employee. Since intellectual property can be sold, it is usually the rich and powerful that benefit. The rich and powerful, it should be noted, seldom contribute much intellectual labour to the creation of new ideas.

These problems—privatization of government information, suppression of patents, ownership of genetic information and information not owned by the true creator—are symptoms of a deeper problem with the whole idea of intellectual property. Unlike goods, there are no physical obstacles to providing an abundance of ideas. (Indeed, the bigger problem may be an oversupply of ideas.) Intellectual property is an attempt to create an arti­ficial scarcity in order to give rewards to a few at the expense of the many. Intellectual property aggravates inequality. It fosters competitive­ness over information and ideas, whereas cooperation makes much more sense.

Critique of standard Justifications

Edwin C. Hettinger (1989) has provided an insightful critique of the main arguments used to justify intellectual property, so it is worthwhile summarizing his analysis. (See also Ricketson 1992). Hettinger begins by noting the obvious argument against intellectual property, namely that sharing intellectual objects still allows the original possessor to use them. Therefore, the burden of proof should lie on those who argue for intellec­tual property.

The first argument for intellectual property is that people are entitled to the results of their labour. Hettinger's response is that not all the value of intellectual products is due to labour. Nor is the value of intellectual products due to the work of a single labourer, or any small group. Intellec­tual products are social products.

Suppose you have written an essay or made an invention. Your intellectual work does not exist in a social vacuum. It would not have been possible without lots of earlier work—both intellectual and nonintellectual— by many other people. This includes your teachers and parents. It includes the earlier authors and inventors who have provided the foundation for your contribution. It also includes the many people who have discussed and used ideas and techniques, at both theoretical and practical levels, and provided a cultural foundation for your contribution. It includes the people who have built printing presses, laid telephone cables, built roads and buildings and in many other ways have contributed to the "construction" of society. Many other people could be mentioned. The point is that any piece of intellectual work is always built on and incon­ceivable without the prior work of numerous people.

Hettinger points out that the earlier contributors to the development of ideas are not present. Today's contributor therefore cannot validly claim full credit.

Is the market value of a piece of an intellectual product a reasonable indicator of a person's contribution? Certainly not. As noted by Hettinger and as will be discussed in the next section, markets only work once property rights have been established, so it is circular to argue that the market can be used to measure intellectual contributions. Hettinger summarizes this point in this fashion: "The notion that a laborer is naturally entitled as a matter of right to receive the market value of her product is a myth. To what extent individual laborers should be allowed to receive the market value of their products is a question of social policy."

A related argument is that people have a right to possess and person­ally use what they develop. Hettinger's response is that this doesn't show that they deserve market values, nor that they should have a right to prevent others from using the invention.

A second major argument for intellectual property is that people deserve property rights because of their labour. This brings up the general issue of what people deserve a topic that has been analysed by philoso­phers. Their usual conclusions go against what many people think is "common sense." Hettinger says that a fitting reward for labour should be proportionate to the person's effort, the risk taken and moral considera­tions. This sounds all right—but it is not proportionate to the value of the results of the labour, whether assessed through markets or by other criteria. This is because the value of intellectual work is affected by things not controlled by the worker, including luck and natural talent. Hettinger says "A person who is born with extraordinary natural talents, or who is extremely lucky, deserves nothing on the basis of these charac­teristics".

A musical genius like Mozart may make enormous contributions to society. But being born with enormous musical talents does not provide a justification for owning rights to musical compositions or performances.

Likewise, the labour of developing a toy like Teenage Mutant Ninja Turtles that becomes incredibly popular does not provide a justification for owning rights to all possible uses of turtle symbols.

What about a situation where one person works hard at a task and a second person with equal talent works less hard? Doesn't the first worker deserve more reward? Perhaps so, but it is not obvious that property rights provide a suitable mechanism for allocating rewards, especially since the market disproportionately rewards the person who successfully claims property rights for a discovery.

A third argument for intellectual property is that private property is a means for promoting privacy and a means for personal autonomy. Hettinger responds that privacy is protected by not revealing information, not by owning it. Trade secrets cannot be defended on the grounds of privacy, because corporations are not individuals. As for personal autonomy, copyrights and patents aren't required for this.

A fourth argument is that rights in intellectual property are needed to promote the creation of more ideas. Hettinger thinks that this is the only argument for intellectual property that has a possibility of standing up to critique. He is still somewhat sceptical, though. He notes that the whole argument is built on a contradiction, namely that in order to promote the development of ideas, it is necessary to reduce the freedom with which people can use them.

This argument for intellectual property cannot be resolved without further investigation. Hettinger says that there needs to be an investiga­tion of how long patents and copyrights should be granted, to determine an optimum period for promoting intellectual work. It should be noted that although the scale and pace of intellectual work has increased over the past few centuries, the length of protection of intellectual property has not been reduced, as might be expected, but greatly increased. The United States got along fine without copyright for much of the 1800s. Where once copyrights were only for a period of a few years, they now may be for the life of the author plus 50 years. In many countries, chemicals and pharmaceuticals were not patentable until recently (Patel 1989). This suggests that even if intellectual property can be justified on the basis of fostering new ideas, this is not the driving force behind the present system of copyrights and patents.

The marketplace of ideas

The idea of intellectual property has a number of connections with the concept of the marketplace of ideas, a metaphor that is widely used in discussions of free speech. To delve a bit more deeply into the claim that intellectual property promotes development of new ideas, it is therefore helpful to scrutinize the concept of the marketplace of ideas.

The image conveyed by the marketplace of ideas is that ideas compete for acceptance in a market. As long as the competition is fair—which means that all ideas and contributors are permitted access to the market­place—then good ideas will win out over bad ones. Why? Because people will recognise the truth and value of good ideas. On the other hand, if the market is constrained, for example by some groups being excluded, then certain ideas cannot be tested and examined and successful ideas may not be the best ideas.

Logically, there is no reason why a marketplace of ideas has to be a marketplace of owned ideas: intellectual property cannot be strictly justi­fied by the marketplace of ideas. But because the marketplace metaphor is an economic one, there is a strong tendency to link intellectual property with the marketplace of ideas. As will be discussed later, there is indeed a link between these two concepts, but not in the way their defenders usu­ally imagine.

There are plenty of practical examples of the failure of the marketplace of ideas. Groups that are stigmatized or that lack power seldom have their viewpoints presented. This includes ethnic minorities, prisoners, the unemployed, manual workers and radical critics of the status quo, among many others (McGaffey 1972). Even when such groups organise them­selves to promote their ideas, their views are often ignored while the media focus on their protests, as in the case of peace movement rallies and marches (Gwyn 1966).

Demonstrably, good ideas do not always win out in the marketplace of ideas. To take one example, it can hardly be argued that the point of view of workers is inherently less worthy than that of employers. Yet there is an enormous imbalance in the presentation of their respective viewpoints in the media. One result is that quite a few ideas that happen to serve the interests of employers at the expense of workers—such as that the reason people don't have jobs is because they aren't trying hard enough to find them—are widely accepted although they are rejected by virtually all informed analysts.

There is a simple and fundamental reason for the failure of the marketplace of ideas: inequality, especially economic inequality (Baker 1989; Hanson 1981). Perhaps in a group of people sitting in a room discussing an issue, there is some prospect of a measured assessment of different ideas. But if these same people are isolated in front of their television sets, and one of them owns the television station, it is obvious that there is little basis for testing of ideas. The reality is that powerful and rich groups can promote their ideas with little chance of rebuttal from those with different perspectives. Large corporations pay for advertise­ments and other forms of marketing. Governments shape media agendas as well as directly regulating the media. The mass media themselves are powerful enterprises—whether owned by government or industry—that promote their own interests as well as those of their advertisers (Bagdikian 1993).

In circumstances where participants are approximate equals, such as intellectual discourse among peers in an academic discipline, then the metaphor of competition of ideas has some value. But ownership of media or ideas is hardly a prerequisite for such discourses. It is the equality of power that is essential. When, to take one of many possible examples, employees in corporations lack the freedom to speak openly without penalty (Ewing 1977), they cannot be equal participants in discourse.

Some ideas are good—in the sense of being valuable to society—but are unwelcome. Some are unwelcome to powerful groups, such as that governments and corporations commit massive crimes (Ross 1995) or that there is a massive trade in technologies of torture and repression that needs to be stopped (Wright 1991). Others are challenging to much of the population, such as that imprisonment does not reduce the crime rate or that financial rewards for good work on the job or grades for good school-work are counterproductive (Kohn 1993). (Needless to say, individuals might disagree with the examples used here. The case does not rest on the examples themselves, but on the existence of some important cases where unwelcome but socially valuable ideas are marginalised.) The marketplace of ideas simply does not work to treat such unwelcome ideas with the seriousness they deserve. The mass media try to gain audiences by pleas­ing them, not by confronting them with challenging ideas (Entman 1989).

The marketplace of ideas is often used to justify free speech. The argument is that free speech is necessary in order for the marketplace of ideas to operate: if some types of speech are curtailed, certain ideas will not be available on the marketplace and thus the best ideas will not succeed. This sounds plausible. But it is possible to reject the marketplace of ideas while still defending free speech on the grounds that it is' essential to human liberty (Baker 1989). Conversely, defending free speech does not mean supporting the mass media (Lichtenberg 1987).

If the marketplace of ideas doesn't work, what is the solution? The usual view is that governments should intervene to ensure that all groups have fair access to the media (McGaffey 1972). But this approach, based on promoting equality of opportunity, ignores the fundamental problem of economic inequality. Even if minority groups have some limited chance to present their views in the mass media, this can hardly compensate for the massive power of governments and corporations to promote their views. In addition, it retains the role of the mass media as the central mechanism for disseminating ideas. So-called reform proposals either retain the status quo or introduce government censorship (Ingber 1984).

Underlying the market model is the idea of self-regulation: the "free market" is supposed to operate without outside intervention and, indeed, to operate best when outside intervention is minimized. In practice, even markets in goods do not operate autonomously: the state is intimately involved in even the freest of markets (Moran and Wright 1991). In the case of the marketplace of ideas, the state is involved both in shaping the market and in making it possible, for example by promoting and regulating the mass media. The world's most powerful state, the US, has been the driving force behind the establishment of a highly protectionist system of intellectual property, using power politics at GATT, the General Agree­ment on Tariffs and Trade (Drahos 1995).

Courts may use the rhetoric of the marketplace of ideas but actually interpret the law to support the status quo (Ingber 1984). For example, speech is treated as free until it might actually have some consequences. Then it is curtailed when it allegedly presents a "clear and present danger," such as when peace activists expose information supposedly threatening to "national security" (Gleditsch 1987). But speech without action is pointless. True liberty requires freedom to promote one's views in practice (Baker 1989). Powerful groups have the ability to do this. Courts only intervene when others try to do the same.

As in the case of trade generally, a property-based "free market" serves the interests of powerful producers. In the case of ideas, this includes not only governments and corporations but also intellectuals and professionals linked with universities, entertainment, journalism and the arts. Against such an array of intellectual opinion, it is very difficult for other groups, such as manual workers, to compete (Ginsberg 1986). The marketplace of ideas is a biased and artificial market that mostly serves to fine-tune relations between elites and provide them with legitimacy (Ingber 1984).

The implication of this analysis is that intellectual property cannot be justified on the basis of the marketplace of ideas. The utilitarian argument for intellectual property is that ownership is necessary to stimulate production of new ideas, because of the financial incentive. This financial incentive is supposed to come from the market, whose justification is the marketplace of ideas. If, as critics argue, the marketplace of ideas is flawed by the presence of economic inequality and, more fundamentally, is an artificial creation that serves powerful producers of ideas and legiti­mates the role of elites, then the case for intellectual property is un­founded. Intellectual property can only Serve to aggravate the inequality on which it is built.

The alternative

The alternative to intellectual property is straightforward: intellectual products should not be owned. That means not owned by individuals, corpo­rations, governments, or the community as common property. It means that ideas are available to be used by anyone who wants to.

One example of how this might operate is language, including the words, sounds and meaning systems with which we communicate every day. Spoken language is free for everyone to use. To allow any group to own language raises the spectre of George Orwell's1984. (Actually, corpora­tions do control bits of language through trademarks.)

Another example is scientific knowledge. Scientists do research and then publish their results. A large fraction of scientific knowledge is public knowledge (Ziman 1968). There are some areas of science that are not public, such as classified military research. It is generally argued that the most dynamic parts of science are those with the least secrecy. Open ideas can be examined, challenged, modified and improved. To turn scien­tific knowledge into a commodity on the market, as is happening with genetic engineering (Mackenzie et al. 19&0; Weiner 1986), arguably in­hibits science.

Few scientists complain that they do not own the knowledge they produce. Indeed, they are much more likely to complain when corporations or governments try to control dissemination of the ideas. Most scientists receive a salary from a government, corporation or university. Their livelihoods do not depend on royalties from published work.

University scientists have the greatest freedom. The main reasons they do research are for the intrinsic satisfaction of investigation and discov­ery—a key motivation for many of the world's great scientists—and for recognition by their peers. To turn scientific knowledge into intellectual property would dampen the enthusiasm of many scientists for their work.

Neither language nor scientific knowledge are ideal; indeed, they are often used for harmful purposes. It is difficult to imagine, though, how turning them into property could make them better.

The case of science shows that vigorous intellectual activity is quite possible without intellectual property, and In fact that it may be vigorous precisely because information is not owned. But there are lots of areas that, unlike science, have long operated with intellectual property as a fact of life. What would happen without ownership of information? Many objections spring to mind. Here I'll deal with a few of them.

Plagiarism is a great fear in the minds of many intellectual workers. It Is often thought that intellectual property provides a protection against plagiarism. After all, without copyright, why couldn't someone put their name on your essay and publish it? Actually, copyright provides very little protection against plagiarism and is not a good way to deal with it (Steams 1992).

Plagiarism means using the ideas of others without adequate acknow­ledgement. There are several types of plagiarism. One is plagiarism of ideas: someone takes your original idea and, using different expression, presents it as their own. Copyright provides no protection at all against this form of plagiarism. Another type of plagiarism is word-for-word plagiarism, where someone takes the words you've written—a book, an essay, a few paragraphs or even just a sentence—and, with or without minor modifications, presents them as their own. This sort of plagiarism is covered by copyright—assuming that you hold the copyright. In many cases, copyright is held by the publisher, not the author. In practice, plagiarism goes on all the time, in various ways and degrees (Broad and Wade 1982; Mallon 1989; Posner 1988), and copyright law is hardly ever used against it. The most effective challenge to plagiarism is not legal action but publicity. At least among authors, plagiarism is widely con­demned. To be exposed as a plagiarist is more than sufficient motivation for most writers to take care to avoid it.

There is an even more fundamental reason why copyright provides no protection against plagiarism: the most common sort of plagiarism is built into social hierarchies. Government and corporate reports are released under the names of top bureaucrats who did not write them; politicians and university presidents give speeches written by underlings. These are examples of a pervasive misrepresentation of authorship in which power­ful figures gain credit for the work of subordinates (Martin 1994). Copy­right, if it has any effect at all, reinforces rather than challenges this sort of institutionalized plagiarism.

What about all the writers, inventors and others who depend for their livelihood on royalties? First, it should be mentioned that only a very few individuals make enough money from royalties to live on. Most of the rewards from intellectual property go to a few big companies. But the question is still a serious one for those intellectual workers who depend on royalties and other payments related to intellectual property.

The alternative in this case is some reorganization of the economic system. Intellectual workers could receive a salary, just like most scien­tists do.

Getting rid of intellectual property would reduce the incomes of a few highly successful creative individuals, such as author Agatha Christie, composer Andrew Lloyd Webber and filmmaker Steven Spielberg. Publish­ers could reprint Christie's novels without permission, theatre companies could put on Webber's operas whenever they wished and Spielberg's films could be copied and screened anywhere. Jurassic Park T-shirts, toys and trinkets could be produced at will. This would reduce the income of and, to some extent, the opportunities for artistic expression by these individu­als. But there would be economic resources released: there would be more money available for other creators. Christie, Webber and Spielberg might be just as popular without intellectual property to channel money to them and their family enterprises.

But what about the incentive to create? Without the possibility of wealth and fame, what would stimulate creative individuals to produce works of genius? Actually, most creators and innovators are motivated by their own intrinsic interest, not by rewards. There is a large body of evidence showing, contrary to popular opinion, that rewards actually reduce the quality of work (Kohn 1993). If the goal is better and more creative work, paying creators on a piecework basis, such as through royalties, is counterproductive.

In a society without intellectual property, creativity is likely to thrive. Most of the problems-that are imagined to occur if there is no intellectual property—such as the exploitation of a small publisher that renounces copyright—are due to economic arrangements that maintain inequality. The soundest foundation for a society without intellectual property is greater economic and political equality. This means not just equality of opportun­ity, but equality of outcomes. This does not mean uniformity and does not mean leveling imposed from the top: it means freedom and diversity and a situation where people can get what they need. There is not space to deal fully with this issue here, but suffice it to say that there are strong social and psychological arguments in favour of equality (Baker 1987; Deutsch 1985; Ryan 1981).

Last modified on Wednesday, 02 May 2012 13:05