IP maximalists should be careful what they wish for. As we noted in China, where after years of diplomatic pressure, China's "crackdowns" on IP infringement seems to have hurt foreign companies, it looks like something similar may soon happen in Kenya. Last year we discussed how Kenya had been pressured into an anti-counterfeiting treaty (similar to ACTA) that was leading to problems where legitimate generic drugs were being destroyed. However, Amelia Andersdotter alerts us to the news that Kenya's new proposed constitution includes a special section saying that "the state shall support, promote and protect the intellectual property rights of the people of Kenya."
What's that going to mean in practice? Well, a Kenyan lawyer's discussion of the new section of the constitution suggests that this is not about creating incentives for greater creation or innovation. No, instead, it's about trying to put a price tag on anyone else building off of Kenyan culture:
This provision seeks to ensure that Kenyan communities are protected from exploitation and the loss of elements of their cultural heritage to the wider world. Examples of such loss include the patenting of the kiondo -- a hand-woven bag made from sisal with leather trimmings, originating in Kenya and mostly associated with the Kamba and Kikuyu communities -- by an unknown Japanese entity; and the attempted registration of the word 'kikoi' as a trademark by a company in the United Kingdom. A kikoi is a traditional cloth garment mainly found in East African countries such as Kenya and Tanzania and is used as a wrap by women.
Really? So Kenya wants to patent a design of a traditional bag so that no other country can make it? That's not intellectual property, whose purpose is to create incentives for new creativity and innovation. It's blatant protectionism against foreign competition. And then taking control over a word used in a totally different country? Again, that has nothing to do with creativity or innovation. So, now that the western world has pushed Kenya to "recognize" intellectual property, rather than understanding the actual purpose of intellectual property, it seems to be embedding the concept into its constitution in a manner that has nothing, whatsoever, to do with encouraging innovation or creativity.
As expected, it looks like Victoria Espinel, the White House's IP "Czar" has released the official "Joint Strategic Plan to Combat Intellectual Property Theft," as required by the ProIP Act. Given the history so far, we had expected the report to be quite one-sided in favor of the industry, and the initial announcements about the report suggested that was to be the case. Specifically, in announcing the report, Hollywood's best friend, Joe Biden, made some typical uninformed comments about how infringement was no different than "theft."
"We used to have a problem in this town saying this," Biden told reporters Thursday at a press conference in Washington D.C. "But piracy is theft. Clean and simple. It's smash and grab. It ain't no different than smashing a window at Tiffany's and grabbing [merchandise]."
Except, it wasn't "a problem" saying it. It was people recognizing that theft and infringement are very, very different. The Supreme Court has made this clear for centuries, going all the way back to the Wheaton ruling, and more recently in the Dowling case, where Justice Blackmun stated explicitly:
Since the statutorily defined property rights of a copyright holder have a character distinct from the possessory interest of the owner of simple "goods, wares, [or] merchandise," interference with copyright does not easily equate with theft, conversion, or fraud. The infringer of a copyright does not assume physical control over the copyright nor wholly deprive its owner of its use. Infringement implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud.
But why let the actual details get in the way of protecting your friends in Hollywood? However, as you start to dig into the full report (pdf), it looks like Espinel actually did consider at least some of the concerns that many of us presented in our filings. Again, this is a bit surprising since her initial request for comment seemed to pre-suppose that the industry's position was entirely fact-based, rather than faith-based. Below is the full report.
The report definitely still leans towards stronger and stronger enforcement and protectionism -- despite all of the evidence suggesting this doesn't actually help to "promote the progress." But there are some hopeful signs that they at least realize that there's more to copyright than simply protecting the entertainment industry's business model. Thankfully, it talks about "effective enforcement" rather than just "more" enforcement. It discusses "promoting innovation" rather than just "strengthening protections." There is plenty in the report that is problematic as well, but there is, at least, some recognition that only strengthening copyright has costs as well. For example:
By the same token, fair use of intellectual property can support innovation and artistry. Strong intellectual property enforcement efforts should be focused on stopping those stealing the work of others, not those who are appropriately
building upon it.
While it's not much, at least having a nod to fair use and the importance of creativity inspired by building on the works of others is a small step in the right direction. It's not often you see any such admission in government discussions on copyright law.
There are numerous challenges to meeting these goals of predictability and enforceability. Our effort must be coordinated, efficient and comprehensive. Solutions will require strong and decisive government action, transparency and cooperation from rightholders, importers, exporters and entities that currently benefit from infringement.
Again, perhaps it's subtle, but the admission that there should be transparency, and that any discussion should include stakeholders, who also "benefit from infringement," at least recognizes that this isn't as one-sided as the entertainment industry makes it out to be. While the industry goes on and on about "losses" from infringement, it never admits that other parts of the industry actually benefit quite a lot. Still, notice who is missing from that list? Consumers. You know, the public, whom copyright law is supposed to serve. What about them?
The Administration supports improved transparency in intellectual property enforcement policy-making and international negotiations. As such, the U.S. Government will enhance public engagement through online outreach, stakeholder outreach, congressional consultations and soliciting feedback through advisory committees, official comment mechanisms such as Federal Register notices (FRN), notices of proposed rulemaking (NPRM) and notices of inquiry (NOI), as appropriate for the relevant process. In the context of trade negotiations, the Administration will pursue these objectives consistently with the approaches and considerations set out in the President's 2010 Trade Policy Agenda, including consideration
of the need for confidentiality in international trade negotiations to facilitate the negotiation process.
This is a clear statement on the concerns that many commenters raised about ACTA. While this report and Espinel's role are not directly related to ACTA (yet), ACTA is definitely on a lot of people's minds and they made that clear in their filings. It's good to see Espinel point out that these negotiations need to be a lot more transparent and be willing to bring in stakeholders.
The next part is the part that I'm most happy about. It actually admits that the data on infringement is bunk and that the government should make policy based on actual data:
There is no known comprehensive study that attempts to measure the economic contributions of intellectual
property-intensive industries across all U.S. business sectors. Improved measures of intellectual property linked with measures of economic performance would help the U.S. Government understand the role and breadth of intellectual property in the American economy and would inform policy and resource decisions related to intellectual property enforcement.
To assess the feasibility of improving measures of intellectual property and linking those measures to economic performance, the Economic and Statistics Administration (ESA) within DOC, in coordination with the IPEC, will convene an inter-agency meeting with relevant agencies to establish a framework for conducting this work. Once that framework is established, ESA will test the feasibility of developing improved intellectual property measures and, if those measures can be developed, they will be linked to measures of economic performance. The resulting analysis and datasets will then be made public.
I do have some fear as to how this will be conducted, but it's nice to see the government admit that it needs real data, even if elsewhere in the report it relies on faith-based processes currently in place.
Of course, there's still a ton in the report that is troubling. It regularly refers to infringement as "theft." Even the name of the report claims that infringement is theft, despite that not being accurate at all. On the more questionable side, we've got things like the following:
Strong intellectual property enforcement supports American jobs, protects American ideas and invigorates our economy. Intellectual property laws provide not only legal protection for creators and consumers, but incentives to encourage investment in innovation.
Where is the actual evidence for this? There is none. The actual evidence has suggested otherwise. It has shown that weaker IP enforcement has actually resulted in greater creative output and greater opportunities for creators, consumers and investors.
Included in USTR's annual Special 301 report is the Notorious Markets list, a compilation of examples of Internet and physical markets that have been the subject of enforcement action or that may merit further investigation for possible intellectual property infringements. While the list does not represent a finding of violation of law, but rather is a summary of information USTR reviewed during the Special 301 process, it serves as a useful tool to highlight certain marketplaces that deal in infringing goods and help sustain global piracy and counterfeiting.
USTR will continue to publish the Notorious Markets list as part of its annual Special 301 process. Additionally, USTR, in coordination with the IPEC, will initiate an interagency process to assess opportunities
to further publicize and potentially expand on the list in an effort to increase public awareness and guide related trade enforcement actions.
This is too bad. The USTR Special 301 report is a joke. It is not evidence-based at all. It's entirely based on what the industry claims is a problem. It's too bad that the IPEC would suggest that this plan makes sense and should be continued. We were hoping the IPEC would move to a more evidence-based process, but this is not that.
It is critical that we station overseas personnel in countries of concern to ensure intellectual property is made a priority.
This is another problem. The US has been pushing its own IP laws on other countries for far too long. And the real problem here is that it's actively locking in other countries to rules that have not been shown to help promote progress or creativity, but really are to prop up a few specific companies with big lobbying budgets. We should not be continuing that practice.
The use of foreign-based and foreign-controlled websites and web services to infringe American intellectual
property rights is a growing problem that undermines our national security, particularly our national economic security. Despite the scope and increasing prevalence of such sites, enforcement is complicated because of the limits of the U.S. Government's jurisdiction and resources in foreign countries.
To help better address these enforcement issues, Federal agencies, in coordination with the IPEC, will expeditiously assess current efforts to combat such sites and will develop a coordinated and comprehensive
plan to address them that includes: (1) U.S. law enforcement agencies vigorously enforcing intellectual property laws; (2) U.S. diplomatic and economic agencies working with foreign governments and international organizations; and (3) the U.S. Government working with the private sector.
Yes, this is the "we must shut down The Pirate Bay" part of the plan.
All in all the report isn't nearly as bad as we expected, but it's also pretty vague. What may be interesting is what comes out of the review of regulatory needs (to be completed in 120 days) or seeing how other aspects of this plan are actually implemented.
Recently, we noted that India and some other countries were gearing up to oppose ACTA, as it presents a huge problem for a variety of developing countries. India should know. It's still getting over the troubles created by TRIPS, which forced it to make some massive changes to its IP laws, which multiple studies have shown to have caused trouble for India. So it doesn't seem to keen to sign up for yet another, even more draconian, set of IP rules. Michael Geist points us to some notes from the recent WTO meeting where India (along with China, and some other developing nations) expressed their serious concerns with ACTA, including that it appears to violate the TRIPS agreement that they've already signed onto:
Briefly, China's and India's lengthy statements argued that ACTA and other
agreements could:
Conflict with TRIPS Agreement (a reference to
TRIPS Art.1.1)
and other WTO agreements, and cause legal uncertainty
Undermine the balance of rights, obligations and flexibilities that were
carefully negotiated in the various WTO agreements
Distort trade or create trade barriers, and disrupt goods in transit or
transhipment
Undermine flexibilities built into TRIPS (such as for public health, and trade
in generic medicines)
Undermine governments' freedom to allocate resources on intellectual property
by forcing them to focus on enforcement
Set a precedent that would require regional and other agreements to follow
suit. (One example cited was negotiations involving CARIFORUM, the group of
Caribbean states. However, a delegation representing CARIFORUM said it
understood the concerns but denied that CARIFORUM would have to apply ACTA's
provisions.)
They also argued that the focus on enforcement did not take into account a
country's level of development.
A number of developing countries broadly supported the concern.
Not too surprisingly, ACTA supporters hit back, but note how they avoid some of the bigger issues here:
ACTA participants voiced their concerns about what they saw as a steadily increasing level of counterfeiting and piracy. They countered that the draft ACTA agreement will not conflict with TRIPS and other WTO provisions. They denied it would upset the negotiated balance, distort legitimate trade or undermine TRIPS flexibilities. One said generic medicines would not be affected since ACTA does not deal with patents.
They said that ACTA was necessary because counterfeiting is no longer a question of products such as fake luxury watches, but involves commercial scale production of fake medicines, car and aircraft parts and other products, which are dangerous to health and safety, and that developing countries are particularly vulnerable.
Some of them also said they had to get together outside the WTO because countries had opposed discussing enforcement substantively in the TRIPS Council.
That claim about ACTA not dealing with patents is news to us. Both the leaked and the released draft still had language suggesting that at least some negotiators used language such that ACTA applied broadly to all intellectual property. If they're really dropping patents from ACTA, that would certainly be news. Jamie Love noted at a recent meeting that Steve Metalitz, who is a lawyer representing the entertainment industry, has said that patents are being dropped from ACTA. Hopefully it's true, but until we actually see that, who knows whether it's really happening.
As for the claims that ACTA is "necessary," that's clearly bogus. Also, it's amusing to note that the "necessary" part focuses on the typical fear mongering points of fake medicines. If they want to stop fake medicines and fake aircraft parts, fine. Then create a document that does that. The problem is that ACTA supporters hide under those claims to lump in a ton of unrelated stuff, which is where many of the concerns come from.
Separately, Love also notes that Metalitz claims that it's "not appropriate" for trading partners to discuss fair use in ACTA. Huh? This is an argument we've seen before, and it makes absolutely no sense. ACTA's copyright provisions include all sorts of aggressive enforcement requirements, and without clear fair use exceptions, those enforcement rules strip copyright of most of its key balancing points. The whole ACTA process continues to be a sham.
For many years I've argued that the economics of abundance is not a moral issue. This is in response to the typical moral and ethical arguments in favor of things like excessive copyright or patent law, with normative claims about how we must protect artists' or inventors' creations for moral reasons, in that it would somehow be "unfair" to have others make use of their creations or inventions. My argument, in response, has always been that the role of morality is in determining a different level of fairness, it's determining the allocation of harm. In other words, moral questions come up when there is a choice over who gets harmed. If you're in a situation where no one gets harmed, then there should be no moral question. So, in approaching an issue like intellectual property, my argument is that if you can create a solution in which the economics allow a greatly increased opportunity for everyone, then you preempt the moral question. Since everyone has a chance to be better off, if you understand the economics and apply it properly, then the only issue is one of economics -- how to best achieve that goal -- rather than morality.
However, if it's true that by doing away with the idea of intellectual property, you create greater opportunities for everyone, could you make the argument that intellectual property laws themselves are immoral or unethical in that they are actually what makes everyone worse off? Could you make the argument that by restricting the use of certain resources and restricting freedom of expression, those laws lead to unethical limitations? Put another way, if intellectual property is causing actual harm, then you could make the claim that there is a moral issue in discussing them -- in that the laws of intellectual property, by themselves, are immoral. That is, if taking away IP causes no direct harm, then there's no moral issue to discuss. But, if leaving them in place does cause harm, then that is a moral issue worth considering.
It's really not something that I had thought about, but Stephan Kinsella points us to a recent talk given by David Koepsell, who not so long ago wrote a book, Who Owns You?, all about the serious problems in patenting genes. I've actually had a few email conversations with Koepsell over the past few months, and it's worth paying attention to what he has to say. He's very deliberate and careful in his work, supporting his positions with deep levels of analysis and evidence. This talk appears to be a new area that he's taking on, trying to make the case that all intellectual property is, by its very nature, unethical:
Now, I will be the first to admit that the talk itself is a bit dry at parts and rough around the edges, and at times seems to go off on tangents. But it certainly has some potential. The argument uses different language than we use here to describe some points, but they map back to the points we discuss on a regular basis pretty easily. He talks about the difference between real property and intellectual property, in that real property concepts predate the law -- predate "institutions" -- because of the brute facts of the situation. If you possess a physical good, there need not be any law saying that you are excluding others from using it. You have it. But if it's an idea or an expression, you need an institution or a law to try to exclude it from others. Effectively, he's distinguishing between what we refer to as scarce goods and infinite goods. Scarce goods, by their nature, are rivalrous and excludable. Infinite goods are not.
He also discusses that the concept of "the commons" is too simplistic, and that there are different kinds of commons. Again, there are the commons that are created through legal or institutional necessity -- such as national parks or the highway system. Without the institutions, then others would likely claim that land via possession. Keeping them as a commons is the legal attempt to avoid a "tragedy of the commons," where that property is allocated inefficiently. But, he argues, there's another type of commons as well: a commons that itself is normal that cannot be enclosed and possessed outside of the law. And that includes things like your genes, or any expression. He refers to the former as a "commons by choice," and the latter as a "commons by necessity," which is an interesting concept.
Thus, the key argument he makes is that intellectual property is an attempt to lock up the "commons by necessity," in the false belief that it is the same thing as the "commons by choice." And while he doesn't directly make this final point, what's clearly implied is this: the purpose of a commons-by-choice is to avoid the tragedy of the commons and to better allocate a scarce resource by letting everyone share it. But when we try to take a commons-by-necessity and pretend there's a tragedy of the commons when it might not exist, we actually make the allocation of resources significantly less efficient. And making a choice to limit the efficiency of a space -- such as by limiting your rights to expression or your rights to innovate or, perhaps worst of all, the rights to your own genes, you are creating harm -- and that harm is immoral.
With India in the middle of its process of revamping its copyright laws due to pressure from Western nations (just a few years after it revamped its patent laws, also due to pressure from Western nations), Quentin Hartman points us to an interesting writeup by Venkatesh Hariharan taking a look at the status of intellectual property in India today and how it seems to conflict with the traditional view of knowledge and sharing knowledge in traditional Indian society. He notes a wonderful hymn that he learned as a child:
Wonderful is your gift of knowledge
the more we share, the more it grows
the more we hoard it, the more it diminishes
But, unfortunately, due to intense pressure from the US and other countries, India has been pushed into implementing US-style intellectual property regimes, in many cases leading to ridiculous results. The article reminds us of the story we've covered previously about the guy who claims IP rights over popular yoga techniques.
The article makes an amusing aside that I hadn't considered before, but should serve as an interesting rejoinder to those who constantly show up with the refrain of "don't like how our IP system stops you from copying? then make your own music/movies/software/novels, etc.." It points out that India's own IP system appears to be quite derivative from the American system. So for all of those "make your own!" folks out there, why isn't India allowed to "make its own" IP regime in the way that fit with its own goals? And why is the US pressuring other countries, such as Canada to make a "derivative" IP system, rather than allowing it to "make its own"?
You may recall that, at the end of March, the White House's "IP Czar" (technical "Intellectual Property Enforcement Coordinator"), Victoria Espinel, had asked for public comments on how best to enforce intellectual property issues. While we were quite concerned that the tone of the request for comments presupposed a lot of questionable things (i.e., more enforcement is automatically "better"), we encouraged people to send in their thoughts. I shared my letter and also pointed people to the fantastic letter sent by the NetCoalition and CCIA -- as well as the ridiculous letter sent by the RIAA, MPAA and the Screen Actors guild.
JJ sends over the news that the White House has now made all of the public comments available. There are a lot. I went through the list and opened a bunch at random (as well as picking out some names of people or companies I recognized to see what they had to say). It seems like plenty of people on both sides of the equation weighed in -- often in response to calls from organizations. On the "enforce copyright more!" side, there were a bunch of photographers and independent musicians, who showed up via the Copyright Alliance or the Association of Independent Musicians. On the "be careful" side, there were a bunch of people who clearly used Public Knowledge's example letter (though, many added to it, or explained why they wanted to reinforce what PK said).
I'm not really sure how helpful those letters really were on either side, as they didn't add too much to the conversation. The folks responding to the call from the Copyright Alliance didn't really answer any of the questions from Espinel. They often just said "my business is in trouble, you must help me!" which isn't very convincing. At times, they went to extreme lengths, like this guy, who tried to convince Espinel that having his photographs copied was the same thing as if he had stolen her car. Very convincing. On the flip side, while I like the folks at Public Knowledge, and perhaps there's value in numbers of people saying the same thing, I think it would have been nicer if more people wrote their own thoughts out.
Anyway, here were a few that caught my eye, good or bad (all links to filings are pdf files):
The filing from the Center for Democracy and Technology was really fantastic. Almost on the level of the NetCoalition filing. I like how it goes through the long list of technologies that were targeted by the entertainment industry as being potential destroyers of their industry which had to be stopped -- including the VCR, the mp3 player, the DVR, search engines and more.
The filing from the American Library Association is also quite good. It points out that there's a big difference between "costs to private companies" and "costs to the public good." And, as for the entertainment industry's studies on "losses":
The fundamental flaw of these studies is that they beg the question of whether a particular private business interest is entitled to government protection for perpetual, stable profits regardless of changing business conditions. The mere fact of declining profits in one business model does not constitute a cognizable harm that government must step in to remedy. Government intervention in any area has costs for taxpayers, and in this area there are added costs to the public when IP policy becomes further slanted in favor of rightsholders and against public access and use.
I was really disappointed in the filing from Beggars Group, the UK-based record label. While I fully expected most record labels who filed to support stronger enforcement, Beggars has actually shown itself to be more reasonable than others in embracing modern technology -- and it's filing is strange in that it totally attacks the DMCA's safe harbors as being totally unfair even as it admits that those safe harbors have created huge new businesses that have created massive consumer value. So, I'm at a loss. Is Beggars really suggesting that because others figured out smart businesses, the government should now punish them in favor of Beggars?
The Mississippi Attorney General, Jim Hood's filing is so filled with fear mongering as to be laughable. It's opening sentence -- and I am not kidding -- compares copyright infringement to the death of a child. It goes on to cite the widely debunked studies that claim copyright infringement supports terrorists and organized crime. This isn't so much a response to Espinel's questions as it is a (fictional) horror story to scare little children.
There's an awful lot in Intel's filing -- some good and some bad -- but I was pretty shocked to see the statement that Intel believes "another threat to the appropriate protection of famous marks in the U.S. is the expansion of parody as a defense...." Really? I recognize that Intel is a pretty big trademark bully, but it's really claiming that parody as a defense is going too far?
Google's filing is pretty good, though I felt it could have been stronger on a few points. Still, it reinforces the point that business models are adapting to the changing technology marketplace, and that we should be quite careful that any enforcement program does not harm freedom of speech or expression.
Perhaps the input from Ray Charles' estate isn't too surprising -- in that it talks up the importance of all the royalties they keep collecting for Charles' music -- but given the fact that Charles himself clearly infringed widely on others copyrights to create the very origins of soul music, and talked up the value of "copying" other musicians, it's pretty disappointing and seems to go against his legacy.
I have to admit, I was a bit confused as to why the Military Order of Foreign Wars is such a big supporter of stronger IP enforcement.
Of course, not everyone in the military thinks that way. I thought Steve Cupp's filing (from a Navy email address) showed that there is quite a lot of concern that copyright law has gone way too far, and is now solely being pushed by lobbyists designed to prop up certain businesses.
There were some odd ones, like the filing from Om Records that basically says "we don't know how to compete, please make ISPs pay us."
It was nice to see Oxfam America's filing focus on why the US should stop trying to force every other country to copy US intellectual property laws, noting that (contrary to what you'll hear some lobbyists say) the TRIPs agreement says that members should be "free to determine the appropriate method" of implementing the agreement.
I thought Bill Waggoner's filing was nice in that he called out that not all infringement is equal, and lumping safety issues of counterfeit medicines in with people file sharing video games is pretty ridiculous and unhelpful in crafting reasonable policy.
Anyway, there were a lot more obviously, and beyond some of the organization names, I was basically picking at random. But it might be fun to "crowdsource" reviewing some of the filings. If you have a chance take a look at the list and see if you find any interesting filings, and let us know about them in the comments.
The US Chamber of Commerce (which many people mistakenly think is a government organization -- it's not) has a long history of getting the facts wrong about intellectual property. The folks at the Chamber of Commerce have one basic mission, which is to protect the big businesses that fund it. And what better way to do that then to have the government help give them monopoly rights and then enforce those rights. The latest is that it has released a report which it falsely claims proves that stricter IP enforcement would boost the economy. But that's not what the report actually says. The Chamber of Commerce hired NPD Group to write this report, and you can read the results yourself (pdf). It's significantly weaker than even the most ridiculous studies we've seen in the past.
Basically, what the report does is talk about "IP-intensive industries," noting that they have created a lot of jobs. Then it picks twelve random "non-IP-intensive industries" and notes that they spend less on R&D and have lost jobs. That's it. But the conclusions it comes to are not supported by the facts. It takes several logical leaps as follows:
Because an industry is considered "IP-intensive" it is only successful because of intellectual property laws. That's simply not true. In fact, a study by CCIA showed that exceptions to intellectual property lawcontribute more to the economy in those industries than the IP law itself. The problem here is falsely assuming that any kind of "IP-intensive industry" is only possible or only successful because of intellectual property. And yet, the actual research suggests that the vast majority of that economic activity, while perhaps in "IP-intensive" industries has little, if anything, to do with intellectual property law or its enforcement.
Second, it assumes, but does nothing to support, the idea that stronger enforcement increases output in "IP-intensive" industries. In fact, actual research has shown the opposite to be true -- and that in cases where weaker enforcement occurs, output and economic activity increase.
It assumes that because the industries it picked contributed more jobs to the economy, that's because of intellectual property law. Yet, there's little evidence to support this basic claim. In fact, history has shown that increasing IP strictness often decreases jobs by limiting competition.
Finally, the report also assumes that IP-intensive industries are on the rise because of intellectual property law, not other massive shifts in the global market. Of course knowledge industries are growing in the US as agricultural and manufacturing jobs move elsewhere. But that's not because of intellectual property law. It's because of the natural progression of the economy. That the "non-IP intensive industries" it randomly chose to include (things like wood, textile, and paper) are on the decline is not due to intellectual property law at all. Claiming it does, as the report implies, is incredibly intellectually dishonest.
The report is a joke, based on a series of faulty assumptions. Tragically, the US Chamber of Commerce still gets attention, despite the fact that its claims pushing for stronger IP laws would do a lot more harm than good for most US business and innovation.
Today may be World Intellectual Property Day, but this past Friday was also apparently World Book and Copyright Day (quite a bookended weekend for government monopolies on knowledge!). Bas Grasmayer points out that UNESCO, the United Nations Educational, Scientific and Cultural Organization, which is supposed to be focused on "promoting international collaboration through education, science, and culture" oddly chose Friday's "World Book and Copyright Day" to launch an "anti-piracy observatory."
This is bizarre for all sorts of reasons. An organization focused on encouraging education and international collaboration seems like the last place that would be supporting locking up information through government-granted monopolies. This "observatory" appears to have little interest in determining whether or not stronger copyright actually promotes international collaboration through education, science and culture -- and simply assumes it must. Given that the actual evidence on this particular topic -- especially in developing nations where you would think UNESCO would be most concerned -- suggests exactly the opposite, it's quite troubling that UNESCO would take this particular position. It's a position that harms developing nations solely to benefit a few corporations. That doesn't seem like a position UNESCO would support.
We already have systems that work like this. The X Prize is a bounty for achieving a desired technological goal. That can provide a one-time payment. But often the value of a new discovery is not realized until some time later. So we might make a slight change to the intellectual property laws.
Instead of the government granting the person that discovers an idea a temporary monopoly, the people as a whole through the government own the right and license it to everyone. Of course the government collects taxes so good ideas would increase tax revenue. The government would pay the inventor a small percentage, maybe 5 - 10% of the taxes collected on income from the idea.
This would eliminate wasteful intellectual property disputes. If you use the idea, you owe the tax and the government has the ability to collect it. And the tax is only collected if the idea is being vigorously promoted. The business and government share the same goal of promoting the idea. Society benefits because new ideas are discovered and brought to market. The inventor benefits because the government is collecting the royalties for them.
This system would drastically reduce the cost of medicine because every medical discovery would be generic from the first day. Companies would compete based on their ability to provide the highest quality products and service at the best price. Researchers could operate independently from manufacturers. This could become a great revenue source for universities.
There's more to the idea than that, but that's the basic summary of the concept. I've seen similar suggestions in the past as well, but I'm not convinced that it makes much sense. Would it be better than the existing system? Perhaps, but even that would require a lot more analysis and modeling. The problem with it, in general, is that you're adding a tax where one probably isn't needed, and the tax is too early in the system -- taxing the use, rather than the income. We already have an income tax and taxing on top of that just seems problematic, taking away the incentive to actually innovate. On top of this, such a tax sounds like a bureaucratic nightmare. How would it be tracked? Who would know when to pay the tax and how it would be distributed? The traditional tax system doesn't involve the government figuring out who to pay as well, and this would add a lot of overhead that makes this whole thing quite inefficient. I guess I just don't see the need for such a system at all, if we can let competition in the marketplace itself focus on rewarding innovators.
While there was a recent argument being made (weakly) that all property is intellectual property, reader Kerry Kaye recently pointed out a discussion of the opposite point of view, saying that intellectual property is actually a violation of the concept of real property. I have to admit that, while I had hoped to find the article compelling, I actually found it to be lacking in substance. At points it seems to go around in circles without clearly making a point. You could, potentially, make a case that intellectual property tries to limit what you can do directly with the output of your own mind, and that is antithetical to the concept that you have the right to make use of the output of your own brain -- which could violated basic property rights, depending on your definition of property rights. In fact, this is the part that I find most troubling about intellectual property laws (especially patents): that it effectively tells you that even if you come up with something entirely on your own, others can stop you from making use of those ideas.
Perhaps a much more compelling (though, I'm sure not to strong believers in intellectual property) discussion on a similar topic is a recent piece by Vedad Krehic, (pointed out by Michael Scott) that discusses how intellectual property laws turn IP holders against their own customers. In it, he makes a similar, but much clearer argument like the one above:
If a friend, however, lends me a music CD and if I then make a copy, so that I can listen to the music without having to borrow the disc again in the future, nobody is harmed. It is possible that I could, for example, have made an agreement or contract with him when I borrowed the disc stating that I cannot copy it. If I were to do it anyway, I'd be in violation of a private agreement. If not, who is harmed by my act of duplication? I used my own tangible property (CD drive, computer, and hard drive or blank CD) to fashion a duplicate of the data on the CD. The original CD is still my friend's property. I return it to him, and while he is no better or worse off than he was before, I am now better off. The imprint of the music on my tangible property makes that property marginally worth more to me, as I can enjoy its use to a greater extent than previously.
Was anyone harmed at any point here?
Yes -- if you choose to believe the consumer entertainment industry. They claim there was a third party here that was being harmed. Can you see the third party? There was me, and there was my friend. There was my property and that of my friend. I don't see the third party anywhere in that process. I suppose my friend could have been in a contract with the person or organization he purchased the CD from not to copy it, but I wouldn't have been bound by that contract. Either way, I did nothing wrong.
And this is where the trouble comes in for intellectual property versus real property:
Can anyone please explain to me how someone can be a just owner of something, yet not be allowed to exercise his or her ownership rights over it? He can throw rancid tomatoes at the painting, but not duplicate the pattern that makes the painting a painting, rather than just canvas and paint? Or, to use a different type of copyrightable pattern, how can someone own their own brain yet not own the part of it containing a song they memorized?
The logical conclusion is that the natural right of property and the idea of copyright, and of intellectual property in general, are fundamentally incompatible and conflict sharply. You cannot own something and have someone else dictate to you what you can and cannot do with it, without that being an element voluntarily arrived at through contract. In absence of a contract, the dictating party is initiating aggression against the just owner of an item. Intellectual property is an assault on tangible property.
And that's the problem that we keep pointing out around here that troubles us so much. There are many -- especially in copyright debates -- who insist that those who don't agree with copyright law should just avoid supporting those who do. But they ignore how copyright law is used, regularly, to limit what should be fundamental property rights of individuals to do as they please to products they legally purchased.
In fact, Krehic then takes this further, and notes that much of the entertainment industry's troubles today may be traced back to the fact that it has aggressively tried to use copyright law to stop people from doing what they want with their own property, and it's that mistake (which they keep compounding) that has resulted in customers defecting, rather than any issue of "piracy." Again, it's easy to predict that intellectual property supporters will scoff at this and dismiss it as ridiculous, but there is growing evidence to support this position. As we've seen over and over again, content creators who learn to embrace file sharing and the power of new technologies, while connecting with fans, and providing a smarter business model, have been thriving. It's not piracy that's causing harm, it's bad business model choices, and many of those bad business model choices are driven by an over-reliance on the "crutch" that intellectual property provides, which gives firms the ability to take away property rights from individuals.
