4. The historical shift from real to intellectual property
We still think of private property as belonging to living persons, and oppose private and public spheres on that basis. But property is private in holding exclusive rights against the world, and impersonal entities like nation-states and corporations, as well as billionaires, can hold private property in very large amounts. We are understandably confused by this. The rise to public power of the corporation rests on collapsing the difference between real and artificial persons in economic law; but they have retained limited liability for bad debts and freedom from other legal hindrances that mere people still suffer from. This is a major obstacle both to democracy in practice and to thinking about it. It is hard to see ourselves as equal and free citizens when power is exercised remotely and anonymously in this way. If we accept that Apple deserves the same legal protection as individual citizens, we are lost. Many academics too have obscured the distinction between living persons and abstractions along with that between people, things and ideas, thereby indirectly providing intellectual support for corporate hegemony.
Private property’s main point of reference has also shifted from real to “intellectual property” (IP), that is from material objects to ideas. This is because the digital revolution has boosted information services whose reproduction and transmission have little or no cost. Copyright, patents, and trademarks have gained great significance in the transnational corporate economy today. This is a sleight of hand like the claim to corporate personality. If I steal your cow, its loss is material, since only one of us can drink its milk. But if I copy a CD or DVD, I am denying no-one access. Yet corporate lobbyists propose a misleading analogy to influence courts and legislators to treat duplication of their property as “theft” or even “piracy.” The United States, born in resistance to corporate monopoly, now foists onto smaller countries an intellectual property treaty—known ironically perhaps as “TRIPs”—shoring up the monopoly profits of transnational corporations with the threat of denying defaulting countries access to the US market.
Large corporations, evoking the human creativity of individual authors, campaign to assert exclusive ownership of what until recently was considered shared culture to which all members of a society or community had free and equal access. Copying popular music—originally through a pioneer of peer-to-peer exchange between individual computers called Napster—was one battle pitting the feudal barons of the music business against our common right to transmit songs. People who never knew they shared a common culture are now forced to acknowledge it by aggressive corporate privatization. These policies are being promoted globally by the same US government whose armed forces establish many bases throughout the world.
In protecting their IP, corporations impose antiquated command and control methods on world markets whose governments are thereby cowed into passive compliance. The largest demonstrations against the present world order are mobilized by opposing this global private property. September 11th and the subsequent “War on Terror” set back this movement for a time, while adding to the coercive powers of governments everywhere. The movement for democratic freedom and equality has been in retreat ever since; yet this “culture war” has truly just begun. If classical political economy’s slogan of “free trade” sought to dislodge traditional feudalism, free markets and liberal democracy are now the rhetorical disguise of neo-feudal monopolists.
5. A note on IP and me
Any writer is caught up in the IP war. Most academics are so intimidated by the publishing monopolies’ legal threats that they keep a very low profile, and sign every form demanded of them. Readers will not be surprised that this is not my attitude. I launched a website when my book The Memory Bank (now out-of-print) was published, mainly to promote sales. A text written before publication was never challenged. When I write an article for print publication, I post the first full draft on my website or Academia. It feels wonderful to have that freedom. I also recycle published articles there, changing the title and initial contents. I have been caught out only once. A journal took an age to publish my accepted article, and I posted it on my website without the usual modifications. It was eventually published, and the editors complained that an exact duplicate was on my website. I asked what they wanted. Could I please take it down? This was overdue and I complied readily, the only time in a life of publishing crime that anyone paid attention to me.
My strategy is of the “mice in the basement” variety—play in the cellar out of sight, but whenever you show yourself upstairs, you get zapped. If there is real money involved, the risks escalate. I have developed a set of questions when assessing whether or not to toe the line. 1. Will anyone notice? 2. Will they do anything about it? 3. Will they take me to court? Only if the money involved makes it profitable to pay lawyers. 4. Should I take my chances at the end of a long queue of unheard copyright infringement cases? 5. If I am found guilty, I become- a hero of democratic resistance to IP. This sequence has never happened. When I am asked for permission to use my writings, I say “I am an open access intellectual; do what you like with it, but please acknowledge the source.” Most of what I write grows out of my practical engagement with the problem, and draws on my history of life and reading. I first developed this response to risk-taking when devising my own system of betting as a student.
6. A history of IP
Lysander Spooner invented the phrase “intellectual property.” He was an old-fashioned liberal philosopher of the mid-nineteenth century—an individualist, anarchist, abolitionist, a sort of American Proudhon, who was often broke. In 1855, he published The Law of Intellectual Property: Or an essay on the right of authors and inventors to a perpetual property in their ideas. Spooner wanted to guarantee a living for mental workers, claiming that copyright and patent laws were inadequate because they failed to protect an author’s or inventor’s rights in common law and unconstitutional because they deprived citizens of their property. “Knowledge is property,” he wrote, “and property is an inalienable and self-evident natural right.” Existing laws confiscate the thinker’s production and without their consent give it to others. With their property rights secured, men of intellect could then be sure of a living for their work.
“It is poor economy on the part of the common people to attempt, by stealing knowledge instead of buying it, to defraud intellect of its wages. If unpaid, men of thought will serve those who will pay—oppressive governments, monopolists, armies, and other established powers; intellectuals themselves will then become agents of oppression. Thinkers who serve the status quo—legislators, judges, lawyers, editors, teachers, doctors, soldiers—are richly rewarded, but those who serve humanity are impoverished, or worse.” If the establishment frauds were replaced by a system of reward for genuine originality, the intellect could “enlighten, enrich, and liberate all mankind.”
If you haven’t heard of Lysander Spooner, it is because he wanted to restrict use of his words without permission or payment. More likely, the American Civil War buried that libertarian moment of individual creativity, and launched a new phase of corporate capitalism that has come to maturity today. Whatever its origins in fifteenth century Venetian glass patents and eighteenth-century author's copyright, we are now witnessing a second enclosure of the commons. Its main beneficiaries are American, European and Asian monopolists of digital commodities. “Culture” is taken here to mean informally shared alternatives to ideas owned as private property, as in a cultural or creative commons. Private property and common property are in principle opposites. One consists of exclusive rights against the world; the other allows everyone free and equal access to a resource. This latter-day enclosure movement relies on the corporations that drive it bombarding individual citizens with intimidating ads.
7. The United States is a latecomer to enforcing IP
The rise of IP as the most contested issue in global capitalism is some four decades old. It origin was in the late nineteenth century, when the western powers sought to consolidate their control of a world market carved up between their various empires. The 1886 Bern Convention for the Protection of Literary and Artistic Works first established recognition of copyright between sovereign nations; Victor Hugo was its most vigorous proponent. Over a century later in 1994, the World Trade Organization introduced the international agreement on Trade-Related Aspects of Intellectual Property Rights. This covers copyright, patents, trademarks, trade secrets, industrial designs, geographical indicators, and integrated circuit layers. The last reminds us that this agreement’s birth coincided with the internet and the Worldwide Web going public. The establishment of “TRIPs” as an obligatory feature of global trade is an unprecedented attempt to make US-style IP law mandatory for all countries.
American publishers routinely ignored British copyright from the beginning, and the US was slow to sign any international agreement. It only joined the Bern Convention in 1989. The original signatories were Britain, France, Germany, Spain and many developing countries who became members as colonies. When the Southeast Asian “tiger” economies began their postwar drive for modern growth, they did not respect international copyright, tacitly sanctioning the cheap reproduction of American textbooks that their people could not afford. With educational expansion achieved, these “pirates” joined the Bern Convention. The issue had now shifted from books to music, movies, and software; TRIPs envisaged an altogether more comprehensive set of rules for IP everywhere.
The US tried out its new recipe for globalization of IP law with the Caribbean Basin Economic Recovery Act of 1983. The Caribbean was then a hotbed of “pirating” copyright owned mainly by its corporations. The act offered countries privileged access to the American market if they observed the copyright of US firms. Countries such as the Dominican Republic and Jamaica found that they must introduce IP laws in a hurry if they did not want to be excluded from preferential tariffs. This established the principle of linking trade rules to IP; the USA entered bilateral treaties with many countries where acceptance of the new terms was enforced by the threat of exclusion from the US market. Some fifty countries also signed a bilateral treaty exempting American citizens from future prosecution for war crimes, thereby bringing together the conditions for a new American empire after 2000—military force, mercantilism, the world currency, and intellectual property. The European Union has followed the US lead in policing IP aggressively, without similar global influence. The smaller countries who vote on international regulatory bodies seem to be content to go along with this. Only the larger non-western countries, such as Brazil, Russia, India, China and South Africa (the BRICS), have resisted; and they are not immune to trade pressure, as when an Indian patents law restricted the production of cheap generic drugs for the benefit of Big Pharma.
The first information goods to feel the full impact of the digital revolution were recorded music. Feudal barons, led by the Recording Industry Association of America, are now losing the war against free peer-to-peer exchange of music files to rents from streaming. Record sales have slumped dramatically, and hauling a random assortment of offenders into court has not stemmed the tide. The movie industry is at a more critical stage. Here the age of cheap reproduction has generated huge revenues to the main studios from sales of video, DVD and streaming copies, in addition to cinema seats; the Moving Pictures Association has led the drive to fight “piracy”, which is out of control in the Middle East, South and Southeast Asia, the former Soviet bloc, Africa, and Central and South America. This campaign is technical as well as legal, with machines modified to prevent use of patented standards across national borders, while hackers circumvent these restrictions as they arise. My daughter, Louise Hart, played a leading role for Sony in the establishment of Blu-ray as a DVD standard.
The contrast with a century ago is instructive. The early movie-makers went to Hollywood from New Jersey to escape the restrictions of Edison’s East Coast patents. Walt Disney exemplified the frontier mentality then, lifting much of his first Mickey Mouse cartoon from a Buster Keaton movie without attribution. Now the Disney Corporation litigates around the world to protect its ownership of images and slogans that would not have been covered by copyright without recent legislation.
Highly interesting! You know the mises.org people? Super libertarian, super pro what they think is capitalism. Yet they are against IP, simply because information, unlike physical property, is not scarce, and scarcity is the only excuse for private property. So it seems one could form a coalition against IP...