Wednesday 22 October 2008, by mond
All the versions of this article:
The Terms „Intellectual Property“ (IP) or „Intellectual Property Right“ (IPR) are used to describe rather different legal constructs. Copyright, Patent Law, Trademark Law, etc, etc..
What they have in common is that they cover rights to exclude others from the use of immaterial goods like knowledge and information. Some authors, among them them most prominently Richard M. Stalmann, argue that the term should not be used at all. On the other hand, there are a lot of points that can be brought up against the concept of IP that applies to most or all of the different legal constructs that are commonly lumped under the term „intellectual property“. So it makes sense to use a term that describes all of the laws that exist for the purpose of excluding people from the access to knowledge and information.
Stallman argues that he does not like the term because it suggests a similarity with property law on physical objects. Where others (most prominently Sabine Nuss in her Book „Copyright & Copyriot“  see this as an advantage: It points out the similarities with physical property rights. Just like with „intellectual property rights“, physical property right is a right to exclude others.
I share this sentiment. Of course there are differences between physical goods and immaterial goods. The fact that today, immaterial goods can usually be reproduced indefinitely without additional cost makes the exclusion seem even more absurd then with physical goods, though this argument neglects that, as Sabine has pointed out, the fact that creating an artificial shortage is rather common for physical goods as well under the capitalist mode of production.
Excluding other people form access to immaterial goods does not create any wealth. What it does is it allows the people who create and those distribute these goods to demand some compensation for it. So the system of IPR is essentially a system for distributing income amongst people.
The global distribution of wealth as we see it today is generally not a fair one. The rich are getting richer, the poor are getting poorer. Capitalism lets some 10 Million people per year starve. Hard working people have to live below 1 or 2$ a day while others who do not work at all live from their capital. But let’s take a closer look at the distribution of income that is caused by IPR. Lets look at the example of music production. From the price of a CD the artists usually gets below EUR 0.50 for a CD that costs EUR 15. The rest is payed as dividends to shareholders of music corporations or used for unproductive work like marketing. This is not a fair distribution of income. Among the artists some stars get really rich while most people producing good music can not make a living from their production of art.
The music industry as a whole does not produce any value for society anymore because the distribution of music could be done more conveniently and almost without costs on the internet. This industry is completely obsolete but IPR allows them to drain resources.
An other example that highlights the unfair distribution of income for immaterial work is the example of patents. Patents usually only benefit large companies where small ones can not afford the legal overhead and do not have the large „patent pools“ that big corporations use to stipple innovative small firms.
Conclusion: While it is often argued that IP provide compensation for creative workers it can be seen that the current system of IPRs does not provide a good service in this field and it should be clear that it should be easy to find means of distributing income to creative workers with less overhead (like over 90% in the music example!).
If art, science, journalism, etc. are created for the sole purpose of being sold on the market, this will have influence on the works that are created in this process. While the artist would prefer to make good art, since he needs to make a living he will be inclined to produce some junk that he thinks will sell well.
The pharmaceutical industry spends twice as much on marketing then on research. And about 40% of the funds that go into research are used for producing cosmetics, while on the other hand research on medicines to cure diseases like malaria which are a burden for large parts of less developed countries do not get much funding at all.
We see: The art, science, technology, journalism, etc.. that is produced under the need of being commercially exploitable will look very different then the art, science, etc.. that could be created otherwise. In many cases we see that the imperative for profit does not benefit society.
Global corporations try to move production into countries with low wages, low labor rights and low environmental standards. Outsourcing and offshoring labor to less developed countries also means a transfer of technology and know-how to these countries. While the corporations want the cheap labor they do not want that the people in this countries get access to the technology as this would breed competition.
The control over „intellectual property“ ensured that this corporations can offshore production to this countries while keeping a strong grip over them and ensure the constant flow of profits. This is why IPR is a tool for neocolonial exploitation. It denies access to knowledge and information to less developed countries but ensures the exploitation of the people in these countries.
With the WTO TRIPS agreement the rich countries have force the IPR-regime onto developing countries. Today most developing countries have woken up to the problem and are reluctant to implement it or to negotiate stronger IPR. Thus the developing countries try to force stronger IPR onto developing countries outside of the WTO process (See: ACTA.)
Today the distribution of knowledge and information is extremely cheap and easy and many people could benefit from works of art or technological knowledge. Yet the system of IPR prevents this. Eben Moglen, professor of law and legal history at columbia university formulated this in the DotCommunsit Manifesto:
„Society confronts the simple fact that when everyone can possess every intellectual work of beauty and utility—reaping all the human value of every increase of knowledge—at the same cost that any one person can possess them, it is no longer moral to exclude. If Rome possessed the power to feed everyone amply at no greater cost than that of Caesar’s own table, the people would sweep Caesar violently away if anyone were left to starve. But the bourgeois system of ownership demands that knowledge and culture be rationed by the ability to pay.“ —Eben Moglen dotCommunist Manifesto
The capitalist system does not maximize efficiency here at all. When access to knowledge and information is cut of through copyright and patents then some people can not make use of these goods. But there is more to it:
Some Information might be useful, but if you need to spend 2 days in a library just to find that piece of information then it is not practical for many circumstances (e.g.: where you would need the information immediately to take an urgent decision). The fact that information is free allows people to build search engines for that information and to give you immediate access to it in many formats and ways. Information that is free has an additional utility over non-free information.
With Free Software (Software were the source code is available and can be modified to build new software) there is the advantage that one can not only use the software build use it as building blocks to create new functionality. Something that is not possible in closed and software which is encumbered by commercial licenses and/or patents.
The success of Free Software, the success of Wikipedia, etc. all show how extremely useful free and open information can be.
Censorship was the godfather of Copyright. When the new printing press was invented those in power soon realized the imminent danger of that technology. To bring cut the free flow of information and to bring it under their control they granted an exclusive „Copy Right“ to selected publishers through which they could control what would be published.
Today Copyright is still used to suppress critical information. (e.g. the Scientology-Sect is notorious for using this practice). The free flow of information on the internet is the general target. Under the guise of preventing piracy we see an increase in surveillance and control on the Internet.
In order to „protect“ their „rights“ the big corporations do not trust the legal system but also use technical means of „protection“. Under the name DRM („Digital Rights Management“ which is more of an „Restriction Managment“) the media corporations want to establish technology that controls every aspect of our information processing. Today this technology is still at its infancy and more or less easy to circumvent, but it is getting more tight every year. If it should work es intended it can only work if we give total control over our information processing to those corporations. That would allow them to spy on us and restrict everything we can see or listen or read. Apple is taking the lead in promoting this fascist technology but Mircosoft and othera are not far behind.
With so called „Trusted Computing“ this technology will be built into the hardware. This is already established in the Microsoft X-Box and in Apples iPhone, etc
Since today the DRM could be circumvented the Corporations bribed our politicans into releasing legal protection for their „Copyprotection“ Technology. This is the so called DMCA (US) or the EUCD (Europe).
See also: DefectiveByDesign.org
The concentration of media that goes along with their corporate dominance is a danger for the freedom of press and thus an danger for democracy. This domination is only possible because copyright law transforms information into a commodity that can be bought and sold.
Where corporations are getting more and more powerful and their lobbyists are controling more and more of our politics this is a huge problem. We need non-commercial media where opinion is not sold to the highest bidder.
In a similar way the trademark law is an area where monopolies are established. Nike does not sell shoes it sells a logo.
IPR creates monopolies. A patent is a temporary monopoly right. So even some of the neoliberal-ideologists like Hayek opposed the idea of such rights.
Most creative work is not produced by one great single mind but a lot of people. We are constantly influenced by many ideas from society and our daily conversation with friends and colleagues . Innovation is built on the free education of our childhood and the songs and mathematics and culture and everything that is free. So why should only those who do the final steps have exclusive rights and benefit from everyone else?
If you get married you might consider going to a professional photo-studio to make some nice pictures. But you should avoid this, since they then own the copyright to this pictures and will charge you every time you need a copy and will refuse to hand out the digital data of the photography. The person who made the wedding-dress and the person who made the bridal bouquet also invested a lot of creativity that went into that picture but they do not get that exclusive right to steal some money from you. This is not fair.
When someone writes an article he or she might use a lot of knowledge from books, from free websites or from Wikipedia but the current form of copyright gives all the exclusive rights to the one person who formulates an article from all those free knowledge. This is not fair.
Financial rewards are often not a good motivation for creativity. Often enough they are even counter-productive:
„The recognition that rewards can have counter-productive effects is based on a variety of studies, which have come up with such findings as these: Young children who are rewarded for drawing are less likely to draw on their own that are children who draw just for the fun of it. Teenagers offered rewards for playing word games enjoy the games less and do not do as well as those who play with no rewards. Employees who are praised for meeting a manager’s expectations suffer a drop in motivation.“
But there is more to this. How much of their creativity, empathy and knowledge people put into their work is not something that can be measured. With the alienation that is imminent in the capitalist mode of production people will not have motivation to put their talents into their work. And unlike with tangible goods capitalism can not measure it and thus can not easily create financial rewards for it. The philosopher André Gorz thus concludes:
„Capitalism, in the development of its productive forces, has reached a frontier: A frontier beyond where it would have to overcome itself in order to realize its own potential“ André Gorz, Die Presse/Spectrum 14.08.2004. (my own translation from the German original)
Communists, for the last 150+ years have opposed the idea of private property in the means of production. Today, in our knowledge and information based economy, knowledge and information is the most important part means of production. And thus we should oppose the idea of „Intellectual Property“ as well.
The argument s behind this opposition towards private property in the means of production mostly reassemble the other 10 arguments that are listed above and vice versa.
But there is something new here. The cooperative way in which e.g. Free Software is produced is an example of how collective property does not just mean putting it in the hands of (authoritarian) state. On the other hand this is not so much new at all but was envisioned by Marx long time ago:
„In place of the bourgeois society, with its classes and class antagonisms, shall we have an association, in which the free development of each is the condition for the free development of all.“ — Karl Marx, Communist Manifesto, 1848
This text is a rough translation of my article from Juni 2006: 11 Argumente gegen so genanntes ’Geistiges Eigentum’.
Franz Schäfer, Oktober 2008
 Sabine Nuss: Copyright & Copyriot, German, Aneignungskonflikte um geistiges Eigentum im informationellen Kapitalismus Westfälisches Dampfboot, 2006, 269 Seiten, ISBN 3-89691-647-5