Copyright, Patents, Enclosures, Commons - and the Trans-Pacific Partnership

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The first half of this commentary was recently podcast on diffusion radio  ( at the time of writing - late January 2014 ). An earlier program ( around mid December 2013 ) included parts of an interview with Dr. Mathew Rimmer originally broadcast on Radio Skid Row, also including Dr. Ian Ellis-Jones in the studio. Here's part 1 and part 2 of that original interview. 

Property, the Commons, Enclosures Old and New

Property in land is something that we're supposed to own and control regardless of others.  The Australian the film "The Castle" captures this idea.  Still, property ownership does come with obligations.  If something leaks out of our property, we're liable for it.

But legally speaking, property ownership does not have a clear and untarnished history.  Private property has been in tension with common property, or the commons, for much of history.  This has been researched in depth by David Bollier, a US activist, author and founder of the Commons Strategies Group.  The UK had its "enclosures" act, which took common land and gave it to individuals.  One comment on this is that it gave individuals the incentives to improve otherwise unproductive land, like swampland, assuming that you're not concerned about the environment of the swamp in the first place.  However, another story is that it meant denying commoners their till then existing rights to sustain themselves on the land, and they were dispossessed.  Bollier talks about how the notions of land ownership conflicted with prior social networks and understandings.  A poem from around 1764, noted in Bollier's book Silent Theft, captures the sentiment :

      They hang the man and flog the woman
      That steal the goose from off the common,
      But let the greater villain loose
      That steals the common from the goose.
      The law demands that we atone
      When we take things we do not own
      But leaves the lords and ladies fine
      Who take things that are yours and mine.
      The poor and wretched don't escape
      If they conspire the law to break;
      This must be so but they endure
      Those who conspire to make the law.
      The law locks up the man or woman
      Who steals the goose from off the common'
      And geese will still a common lack
      Till they go and steal it back.

Bollier sees "enclosures" as not just turning common land into private property, but also taking concepts and ideas which were public and turning them into something private. For example, a set of words may be words that all of us can use; but as a trademark, only those firms that own the words can use them; they have been "enclosed", and taken from the public domain.

Bollier also sees the "commons" in recent technological developments. He sees the Internet, and open source technologies as such Linux as an example of a collaborative common, a pool of information from all can drink freely without restriction, where nobody privately owns what is generated. He also notes how new business models have developed which mean profits can be made by accessing the commons, but never through appropriating as private property what is in the commons.

Justifications for Property Rights

Some will see the notion of property as complete nonsense.  Rather than going this far, I see the legal recognition of many forms of property as being not so much the recognition of some inviolate right to control what you have, but rather a recognition that provides incentives so you apply yourself in a way which benefits the rest of the world.  This vital connection has been lost over time.

The US Copyright Term Extension Act

It's apparent in the Copyright Term Extension Act of 1998, which extended copyright terms in the United States to the life of the author plus 50 years, or 75 years for a work of corporate authorship.

Copyright is justified in it providing creators with an incentive to create works that we will all benefit from, because they have the ability to gain monopoly profits for a period.  However, it is difficult to believe that your estate continuing to benefit for a few extra decades after you pass away would provide an additional incentive for you to currently engage in more creative activity.  This extension was the result of lobbying by corporate interests to maintain the profits, rather than providing incentives which meant a net benefit for everyone.

In fact it was justified through a desire to keep the money in the US rather than let the benefit flow overseas, which overlooked the whole point of copyright, not to mention that corporations would disproportionately benefit.

The Act is known derisively as the Mickey Mouse Protection Act, and it is something the US would like included in the TPP or Trans-Pacific Partnership.  It does seem the TPP has so far focused on trade and the ability of nations to protect their assets and investments, rather than seeing intellectual property as providing incentives for activities that everyone benefits from.  You couldn't be blamed for thinking that the incentive for international trade and investments trumps all other incentives which are also important parts of the story of capitalism.

The First Sale Doctrine

The first sale doctrine is the idea that you can sell, rent or otherwise deal with a book or other item after it has been sold to you.  This is being undermined by Digital Rights Management, also derisively known as Digital Restrictions Management, which makes it impossible to directly copy material.

Of course, it is easier to make a digital copy than it is a book.  And even a photocopy would never have the same bound feel as the original. Still, it was possible to copy part of a book in fair dealing, if you did not profit from it.  That's cut out by DRM.  Further DRM has segmented the global market, much as there are other pushes towards globalisation when it suits other corporate interests.  This means you cannot effectively travel internationally and conveniently play your collection of DVDs or whatever.

However, the DRM itself does not violate the first sale doctrine.  It is sold once to one buyer.  You may only be able to play it once, and you may be unable to sell it on.  However, if it were enforced that a DRM license meant you could read or play a file multiple times and could sell it on, you'd then have a secondary market of DRM's being traded to allow the playing of a file by a succession of individuals, selling the DRMs to each other - something like how a firm issues shares which are then traded amongst share sellers and buyers.  So, DRMs do not by themselves violate the first sale doctrine, but they certainly make it easier.

Of course, this is about direct copying of the file.  You could always video a screen or record audio from a speaker.  Yes, there's noise, but if you repeat the process multiple times you can average it out and reduce the noise.  It is a nuisance, but it can be done.  If you can only play the file once per purchase, this would mean that after you've paid for perhaps 10 plays, you'd be able to average out your own very good copy. Or, if you can get around the differences in speakers and sampling equipment, you could have perhaps 100 people sharing their samples to provide a good quality file. The point is that, whatever the technological barriers, they can only make it harder to make a good copy - they cannot make it impossible. ( I'm aware of these ideas being noted back in 2001 by Bruce Schneier in a short note and also a longer talk )

Civil "Wrongs" vs. Criminal "Acts"

Corporate interests also push for the confusion of civil and criminal wrongs.  Normally, the state only intervenes where someone has committed an act of violence or fraud against an individual.  Disputes between people - like if your sink overflows and water affects the unit below - or indeed copyright infringements - are dealt with as civil torts, as disputes between people mediated by the courts. ( Though of course, you should see if you can negotiate with your neighbour first before bringing the courts in. )

The push is to make civil wrongs into criminal offences.  It is something like getting the police to do a security patrol at your property and lock up people walking down the street outside you don't like the look of.  It is a fundamental violation of what I think the state should be about, and how we relate to it.

It is this sort of approach - of locking people up for copyright infringement - which is another thing the US is pushing for through the TPP.  To be sure, I do have some sympathy for corporate concerns about others who try to evade their control and benefit financially - such as people who research their own high-tech cable decoders for sale in a clearly organised way.  There seems to be a faint echo of fraud.  The problem is, however, that the ambit claims of the US have no restraint at all - which ruins the credibility of their whole position.  It is the US who have locked up hackers just for copying material - or even linking to it.

Stealing vs. Copying

Film makers advertise that copying a DVD is the same as stealing a car. However, if you steal a car, you're denying the owner the use of that car; when you copy a DVD, you're denying a corporate entity profit, profit which is the result of a highly contestable collection of legal abstractions.  That's in comparison where you're defrauding say an artist or some individual.

The "Individualist" Justification for Intellectual Property

In fact, much of intellectual property is justified through an appeal to the individual as a creator, while in fact most of the time the individual creator has become lost in the wash somewhere or has otherwise become irrelevant.

Patents make you think of the individual inventor working in the back shed being protected.  In reality, however, Patents are the playingthings of large international firms, with the sound principles they may have once been based on being twisted out of all recognition in legal battles long since; pharmaceutical firms, for instance, evergreen Patents obtain more coverage.  Firms battle each other with Patents, firing missiles at each other; even when we're not talking about Trolls, we can still suffer collateral damage.

Similarly, while you might think that copyright protects small bands, in fact bands are for the most part are chewed up and spat out by the large record labels. Copyright protects the prerogatives of large businesses, not that of the bands struggling to make a name for themselves. In the 80's there's the story of Frank Zappa creating his own mail-order record label, Barking Pumpkins, bypassing the distribution networks and pushing back against the record labels - but his story is a notable exception.

Hollywood Accounting

Hollywood is known for ...  well, Hollywood, or creative, accounting. While you might think this was to do with the numbers creatively not adding up, in fact it was a contrast between the creativity of the directors, producers and actors in Hollywood as compared to the creativity of the accountants, who created businesses which charge higher than market rates to the business making a movie so that it does not make a profit, while more broadly, the film did make money.  There's still a distributed profit, so it doesn't really evade tax - but it does mean that creative partners - include perhaps actors and writers - are denied their fair share.  You see it in John D.  MacDonald's novel "Free Fall in Crimson" :

   Darling!  This is the Industry!  The really creative people are the
   accountants.  A big studio got over half the profit, after setting
   breakeven at about three times the cost, taking twenty-five percent
   of income as an overhead charge, and taking thirty percent of income
   as a distribution charge, plus rental fees, and prime interest on
   what they advanced.

This happened in the film Forrest Gump, with the author Winston Groom originally receiving no royalties because the film made no money.  It's said he refused to sell the screenplay rights to the novel's sequel, stating that he "cannot in good conscience allow money to be wasted on a failure".  Since then, with the help of a skilled lawyer, he has started to say much more positive things about the production company - but it is interesting things got to that stage.  There was also a conflict involving Stan Lee and the 2002 movie "Spider-Man".

The amazing thing about all this is that the motion picture industry, which has no hesitation about denying creative partners their fair share, has the gaul to shake its fist at people who deny them their 'fair share' by copying their films.

In contrast to these stories, while a few authors do try to go it alone, it does seem that book authors have a better relationship with their publishers.  Perhaps this is because there's a lot more players meaning closer to an effective market, and also because publishing a book is a lot less financially onerous as compared to making a film or making an album and promoting a band.

... And Today ...

In times long past, intellectual property was something that only big firms worried about.  In the modern age, however, a lot more of us are creators and the abuse of intellectual property by those big firms is something which is becoming ever more apparent to us.  And then there's international treaties like the TPP which could dramatically change the intellectual property landscape.  Intellectual property is no longer an abstraction - it affects you and me - directly.