The following started out a preliminary draft of an essay I'm
writing in response to wipout's response to
the WIPO student essay contest
. I don't think I ever submitted it,
though; and it now serves as an essay on the topic in hand.
Every employer I've ever had (aside from some cafés for whom I cooked and waited when skint) has employed me to write software. Orthodoxy says that such employers make money by the exercise of intellectual property rights. At least six of those past employers have obliged me to sign contracts which grant them total control over any intellectual property generable from anything I do while in their employ, even when I'm at home outside working hours.
In fact, only three of my nine software employers (1982–2001) made
money out of my work by the exercise of intellectual property
rights
. One of those is in competition with a major open-source project,
which might make it harder to make money without IP. All three had in-house
teams with highly specialised skills in their product areas which would have
enabled my employers to make money out of consultancy work for folk using their
products, even if those had been open-source. Those teams would, in such a
case, still have benefitted from having an in-house team developing and
maintaining the software – i.e. from employing me and my peers –
both for our contribution to their expertise and from effects on customer
perception of our business.
Six of my past software employers made no practical use of IP law in exploiting my labour. Two of the others involved me in work which they didn't sell to other folk – had they allowed me to release this work to other folk, they would have suffered no loss thereby and might have benefited by contributions from other users, as the open source movement has repeatedly shown.
Only four of my nine past employers have allowed me any scope to release any work to other folk: the other five have so bound me, contractually, that I could not let anyone else use any software I produced, even if their use thereof was no loss to my employers. One of the four who would have allowed me to release work to the open source community never had me work on any relevant project, and bound me by a contract with particularly oppressive restraints in intellectual property areas.
My past employers have been so oppressive about intellectual property
because their corporate lawyers had drafted standardised contracts of employment
which protected
my employers' intellectual property rights
. Any
loss, no matter how hypothetical or small, to my employer which could be
prevented by the contract was – no matter how great the imposition on my
liberty, without even a moment's concern for any public good which might
possibly be sacrificed thereby. How does this promote progress in (the public's
practical access to) science and the useful arts ?
In many ways, the mere existence of intellectual property
has obliged my employers to be so oppressive, for fear of litigation by
shareholders claiming a failure of due diligence
. Fortunately, in
practice, my bosses have exercised their discretion more wisely than the lawyers
and granted me permission to do reasonable things, when I have asked. Yet IP
has created an economic context in which I can hope for no employment but such
as will deprive me of the liberty to exercise the fruits of my creativity
– which I would have been inalienably able to exercise were it not for
these rights
. Thus a privilege created overtly to reward me for my
creativity actually deprives me of all reward for my creativity, even its
natural fruits.
Intellectual property rights
have obliged me to engage in paranoid
analyses of how my work could be applied. At one point, I was obliged
to read a patent which granted exclusive rights to someone for having noticed
that neural network
software (widely used in image processing before the
patent was filed) could be applied to medical image processing
(my emphasis). I was supposed, thereby, to learn that I should be looking for
ways my work could be patented, or ways my future work might be impaired by
possible future patents. Given that I was being treated for clinical depression
at the time, this request that I render myself clinically paranoid was neither
welcome nor wise.
It is no longer feasible for a practitioner of any craft to keep abreast of
the unending flood of patents being granted world-wide: yet their holders may
bring suit against me (and against my employer) if ever I happen to have an idea
similar to one on which some patent claims priority. Patent examiners, at least
in the U.S.A., leave determination of novel
and non-obvious
to
courts, in which I (and my employers) cannot afford to spend our time (let alone
the cost of hiring lawyers) arguing when we have more than enough work on our
hands earning our livings. How, then, does the law protect my right to enjoy
the fruits of my honest labours ?
Modern intellectual property law is so beset with sophisticated precedents
that it is unrealistic to expect anyone but a trained lawyer, specialising in
intellectual property, to have such an understanding of it as to justify the
law's necessary presumption that those bound by the law understand the law
– a presumption entrenched in ignorance of the law is no defence in
law
. In such a context, whoever can afford the better lawyer enjoys an
immense advantage; whoever has limited capital assets can expect to be bankrupt
before the case they should justly have won reaches its conclusion; so that a
wealthy litigant can reliably intimidate whomsoever they please. Given this,
intellectual property law has degenerated into a contest less just than a
mediaeval trial by combat
.
When it ceases being possible to enforce a law impartially, it shall be enforced only partially (a word with two meanings: I mean both). Partial enforcement of any category of civil tort invariably favours the powerful at the expense of the week, thereby entrenching the power of the former and undermining the liberty of the latter. When law injures justice or liberty (as here it injures both) it should be repealed – it is better to leave a vacuum, while folk seek a just replacement for what has been removed, than to leave in place the means of systematic oppression.
The prospect of intellectual property rights being expanded has led
to my writing, in the past, letters to both the
European patent office and Britain's patent
office. I have taken the trouble to look at why Britain's
government was prepared to limit free speech and competition to the extent
implied by introducing copyright law – so as to enable publishers and
authors to do an economically viable deal in an era when preparing a work for
publication was significantly more expensive than it is now and there were
significant further capital overheads involved in publication – and find
that the reasoning which was compelling then is no longer even tenuously
viable. The cost of publication has plummeted (the typeset, trial print,
proof-read
cycle's efficiency being improved spectacularly with the aid of
computers), the benefits of being first to market with a product have expanded
(distribution and propagation of reviews is fast and efficient) and there are
now plenty of options for publication by authors at negligible cost (e.g. the
way I publish my works – on the web) or at such modest cost
(e.g. musicians I know who publish their work on CDs) as many can afford without
corporate aid. This last the corporate publishers dread most of all.
Intellectual property is a sophisticated family of economic privileges which now-developed nations granted to their citizens in order to hasten the process of economic development in the absence of global free markets. These privileges were granted as a matter of expediency: if ever we find that they are no longer expedient, we should repeal them or replace them. If ever they conflict seriously with our fundamental rights, we must do so. Our right to reap the just rewards of lawful labour, and to know whether our labour is lawful (to speak of but two), are now not merely endangered but actively annulled unless intellectual property law is significantly curtailed. For it to be any further extended would undermine justice.
What does intellectual property law mean to the world at large ? It is the
last bastion of mediæval protectionism: it prevents developing countries
from competing in open markets; it enables corporations in developed countries
to foreclose on interlopers in their markets – whose presence is required
by free market theories as the agents who, by competition, impose rational
prices on those markets. The corporate-friendly powers which are pushing
for unfettered competition
on a level playing field
in a global
free market
are, at the same time, insisting on the retention
of intellectual property
laws which fetter that competition by
entrenching barriers against entry into markets dominated by corporations which
enjoy an intimate relationship with these powers. Meanwhile, these same
collaborators have the wealth, power and – above all – lawyers with
which to intimidate into silence anyone rash enough to make so defamatory a
suggestion as that there might be anything corrupt in their intimacy.
We shall not be thanked, by later generations in either the developed nations or the rest, if we opt to so restrict trade that development is so retarded in much of the world that its citizens' only means of obtaining justice is to destroy the power-structures of the developed world by brute force. If we impose a global legal regime which entrenches the present injustices, that shall be the only recourse open to the vast majority of humanity, who shall out-number the tiny minority who actually benefit from such laws. We shall all lose in order to protect some privileges we granted for reasons of expediency, which we have since allowed to supersede our rights, despite massive diminution in the need for the expedient, coupled to an immense increase in those privileges' impact on our rights.
What does intellectual property mean to me in my daily life ? (In my daily life, I write things on computers.) It means that
Third world countries lose out; academic texts (books needed by each
student, journals needed by each department) are predominantly published in the
U.S.A. (for reasons tied to the monopolistic tendencies of capitalism –
control gravitates towards the biggest pile of money); the U.S.A.'s market for
these things is dominated by wealthy and institutional purchasers, so what
the market will bear
is a high price; now inflate that by exchange rates
(one day's living costs at a given standard of living: in 3rd world < in 1st
world); the U.S.A. derives profits from limiting education in the 3rd world to
the very rich.
Brett Watson covered the contractual over-restraint angle very well.
Written by Eddy.