A Critical Guide to Intellectual Property

Mat Callahan,Jim Rogers

• Éditeur: Zed Books
• Année: 2017
• ISBN:
  9781786991164
• Édition: 1
• Sujet: Économie
• Sous-sujet: Économie politique

Ours is an era when human genes can be copied and patented. From genetically modified foods to digital piracy, the concept of intellectual property (IP) and the laws upholding it play a foundational role in our society, but its political and ideological dimensions have rarely been understood outside of specialist circles. This collection cuts through the legal jargon that so often surrounds IP, to provide both a comprehensive history and analysis that explores the corporate interests that shape its conception and the movements that are developing alternatives. As the nature of industry changes, we might ask: what are the wider implications of the concept of IP, be it for agribusiness and pharmaceutical companies or the film and music industries? Has IP law has been used to safeguard and assert the ownership of ideas and creativity, or is it an essential foundation of our culture? Today, with mounting challenges from the growth of free software and open source movements, this collection provides an accessible and alternative guide to IP, exploring its significance within the wider struggle between capital and the commons.

1 | WHY INTELLECTUAL PROPERTY? WHY NOW?

Mat Callahan and Jim Rogers

Introduction

Considering the grave dangers facing humanity today, it might appear that intellectual property (IP), though loudly controversial, is at best a tempest in a teapot, at worst a diversionary tactic designed to focus attention away from more serious issues. Compared to environmental disaster, deepening social inequality, rampant state surveillance and war without end, dispute over copyright, patent and trademark seems trivial. Though, in recent years, media attention has increasingly focused on digital piracy, genetically modified foods, the patenting of the human genome, and other IP-related matters of obvious importance, IP remains an enigma. That capitalism is in a crisis of epic proportions is beyond doubt. What role IP plays in this crisis, however, is anything but clear.

It must first be acknowledged that a great deal of legal obfuscation has to be cut through even to begin exploring the matter. IP has been above all shrouded in a fog of mystification precisely to keep out the rabble and protect the authority of lawyers. Yet laws are made and laws can be unmade, the underlying principle is justice, and justice is determined through political struggle, which is never confined to a courtroom. Indeed, the legal aspects of IP, while certainly worthy of informed debate, are by no means the most important in figuring out IP’s place in current affairs. Far more relevant are the forces deployed on battlefields throughout the world.

First among these forces are of course the major industries dependent on IP for their profits. The most important are the pharmaceutical and agricultural industries in terms of patent and trademark, the film, music and publishing industries in terms of copyright. Most of the attention paid to IP has, until recently, been a result of these industries’ propaganda efforts. Only in the last two decades has such propaganda been met and superseded by opposition from two other, sometimes separate, sometimes overlapping, areas, that is, social movements and “piracy.”

Regarding social movements, these have formed in two distinct sectors which are, nevertheless, inseparable due to their emergence in response to the legal and political regimes organized by IP law and international treaty. These movements, furthermore, are responsible for making IP a radically different matter than was the intention of the holders of most intellectual property and their propagandists. Instead of an unimpeded privatization of knowledge and genetic resources, IP is now a focus of struggle demanding the attention of anyone concerned with changing the world.

Social movements

In the Global South, farmers and indigenous peoples, along with some governments, are waging an ongoing battle against the biggest food and pharmaceutical corporations in the world. A primary focus is the protection of “traditional knowledge and genetic resources,” including cereal grains such as potatoes, corn and rice. What were in many cases the results of thousands of years of human ingenuity are now patented and turned into the private property of corporations in the Global North. This applies equally to medicinal plants, many of which have already appeared as trademarked and patented drugs in pharmacies everywhere. Another focus is on educational materials whose exorbitant costs are solely attributable to the extortionate royalties extracted by large publishing houses in the United States or Europe. What students in Rio de Janeiro must pay for the privilege of reading a chapter from a book is often prohibitive and has led to widespread disobedience followed by the inevitable police crackdowns made in the name of fighting piracy. These movements have exposed the fact that countries which only recently threw off the yoke of imperialism have been effectively recolonized by means of IP regimes. Membership in the World Trade Organization (WTO) depends on acceptance of treaties enshrining copyright, patent and trademark as they are applied in the United States or EU. In fact, the World Intellectual Property Organization (WIPO), an agency of the UN, administers 26 treaties to which all members of the UN are bound. That these treaties are based on IP laws designed in the first place to protect the merchants, manufacturers and financiers of Europe and the United States as they conquered the world seems to have been overlooked by the independence movements that at least nominally freed most of Asia, Africa and Latin American in the wake of World War II. Only socialist Cuba abolished IP (and has recently re-instituted it) but this is nowhere seriously considered. Now, popular resistance has forced both the practical application of and the philosophical justifications for IP regimes back onto the agenda.

In the Global North, what is known as the open access movement has sprung up, involving a large number and broad spectrum of people. Software programmers, journalists, scientists, artists, academics and civil libertarians have rallied to resist attempts by government and business to surveil and privately appropriate all exchanges of information taking place anywhere. Here the battle is joined along the lines of free speech, access to knowledge, sharing as a principle in education and creativity and against the intrusions of either government or business in the free association of people. It’s latest manifestations have been, as is well known, the leaking of government secrets and the violently repressive measures undertaken by the US and European governments against Chelsea Manning, Julian Assange, Edward Snowden and many others. But the roots of this movement lie in the systematic effort to criminalize file-sharing which began in the San Francisco Bay Area where the enabling technology was first developed, escalating through the arrest of the founders of the Pirate Bay file-sharing website in Sweden, which led to the founding of the first Pirate Party and eventually the massive – and successful – resistance to various legislative attempts to codify sharing as piracy (SOPA, PIPA and ACTA). The death of Aaron Swartz was thus a signal and a turning point – a signal that open access is a matter of life and death and a turning point in that Swartz’s Guerilla Open Access Manifesto has now explicitly linked the two sectors outlined above. Millions worldwide heard Swartz’s call to make common cause between the movements in the Global North with those in the Global South.

Lest this brief overview be viewed as hyperbole or the exaggerations of an enthusiast, it must immediately be stressed that these social movements are characterized less by sustained organizational effort, than by episodic outbursts. With a few notable exceptions, they are not organizational at all, manifesting themselves instead in particular campaigns around particular issues as they arise. Sometimes these are legislative, for example, when particular laws or treaties are proposed, some are court cases involving law suits or criminal charges. Nowhere in any of these social movements is there, at present, a single, dominant discourse other than the most general calls for “fairness,” “independence,” “freedom” or recognition of the UN Charter of Human Rights as that document applies to indigenous communities and whistleblowers alike. While a healthy skepticism of “prevailing wisdom” about copyright or patent can be safely assumed, there is by no means a general critique of IP as such, let alone a call for its abolition. In the enormous and growing literature concerned with IP there is only a small, obscure section devoted to how the Soviet Union, China and Cuba legislated in regard to IP. Not only is this experience forgotten, it is not even known to have existed, even by many otherwise familiar with revolutionary struggle! Beyond these disclaimers is yet another: broadly speaking these movements are only potentially revolutionary. This is somewhat ironic since the subject of IP immediately exposes the foundation of bourgeois thought regarding the self, property and the state. The entire edifice of what philosopher C.B. MacPherson called “possessive individualism” is laid bare, its origins, made abundantly clear, not only in Hobbes and Locke but in the slave trade and conquest of territory.

Property is an outmoded concept

Property is an outmoded concept. It can no longer account for the most basic components of human being, genetically or intellectually. When information encoded in genes or digital files can be transmitted almost instantly to anyone anywhere in the known universe, it is beyond the capability of laws or police to prevent its dissemination. Indeed, the only inhibition that might prove effective is one that is self-imposed, by the consciousness of people acting in what they consider to be society’s best interest. As radical as this assertion might at first appear to be, it is no more than the recognition of conditions as they presently exist. From recent Supreme Court rulings about the “natural” nature of the human genome to the suicide of Aaron Swartz, it is abundantly clear that limits have been reached, at which point private property as an idea, as an organizing principle or as a measurement of human freedom simply breaks down. What was the Supreme Court to do? Say that a corporation could own the human genome? What’s next, the alphabet? The periodic table? This is not a matter of argument by reductio ad absurdum, either. What we are seeing is the incoherence of the reasoning by which bourgeois law justified property in the first place. That is, as a “product of nature.” So it is “nature” that makes private property, and “nature” that takes it away. Meanwhile, there has been a low intensity civil war going on for the last 15 years. It involves millions of people – especially the young and educated – flagrantly disobeying the law and declaring those authorities charged with enforcing it illegitimate. Simultaneously, farmers and indigenous people throughout the world have risen in defiance not only of governments and corporations but against privatization as a way of thinking. From these two sites of conflict it is readily apparent that the greatest threat to IP regimes is the intellect interrogating property and finding the latter logically inconsistent and practically inoperable.

Politics and technology

It is worth recalling that much of what we are talking about when we say copyright, patent or trademark only became headline-grabbing news since the collapse of the Soviet Union. It may also be obvious that prior to the internet most discussion was confined to the business pages of the newspaper and scientific or business journals. But taken together, political upheaval and technological development has made IP a central focus, at least of those governmental and industry departments most concerned with information. Leaving aside the important questions surrounding WikiLeaks, Chelsea Manning, Edward Snowden and whistle blowing in general, the free flow of information, in whatever form, has undoubtedly been greatly facilitated by digital, fiber-optic and satellite technologies. At the same time the reactionary wave that began sweeping the world in the aftermath of the 1960s, especially since the major capitalist crisis of 1973, led to victories for neoliberalism which in turn led to the Great Crash of 2008. Under these conditions it is not merely the case that capitalists seek profit anywhere they can find it, hence their interest in IP. It is more fundamentally a question of how a global regime is constructed, especially the trade treaties and international agreements that dictate the flow of all goods and services, be they material or intellectual. Indeed, the threat many movements pose – be they indigenous people or young internet activists – is not primarily one of piracy or “theft” of the intellectual property of one corporation or another, rather, the threat is to the foundation of private property and the ownership of ideas as a conceptual framework for law or governance of any kind. In other words, within any and every conflict revolving around IP are the core principles of capitalism: possessive individualism, private appropriation of public wealth – especially natural resources – and the despoiling or destruction of the commons. Thus, what makes IP a vital battlefront for our time is that the stakes are capitalist enslavement or human liberation.

Outline of the book to follow

In Chapter 2, Mat Callahan advances his own “personal” intro- duction to intellectual property. Drawing initially upon years of experience as a musician, and his own accumulated knowledge of how the music industry works, he puts forward a variety of evidence which ultimately points to the conclusion that the copyright system is not only inherently unjust but cannot be reformed if the aim is delivering fair and equitable reward for musical creativity. After discussing and critiquing a range of reform initiatives from the mid-1990s onwards, the author argues that the copyright system must be abandoned in favor of an alternative approach to providing appropriate credit and compensation to musicians. Challenging the conventional notion of the composer and that music can actually be owned by any given individual, the chapter ultimately puts forward four fundamental principles around which to build a new model which would ensure that authors, composers and inventors receive fitting recompense and acknowledgment for their creative and artistic endeavors and contributions to culture and knowledge.

Beyond this, the bulk of the remainder of this book is divided into three broad thematic strands:

Section 1 comprises three chapters that combine to consider the historical context, and theoretical and conceptual origins of intellectual property rights, crucial to understanding and interpreting their form and nature in the contemporary environment, and fundamental to addressing more orthodox conceptualizations of IPRs in earlier scholarly works.

Section 2 contains four chapters in which the focus shifts to specific terrains of conflict where tensions between the “possessive individualism” that underpins and characterizes the approach of the IPR regime and the social/common good are playing out. Here, the domains of music, education, food production and technology are each in turn brought under a critical lens.

Section 3 offers three chapters that work to unpack and examine what intellectual property law actually is. Here, we consider commonalities and points of distinction between different national and international IP regimes, including treaties and policies of various bodies and jurisdictions...

Table des matières

• Cover
• Title
• Copyright
• Contents
• Acknowledgments
• List of abbreviations
• 1. Why intellectual property? Why now?
• 2. Running through the jungle
• Section One: Historical context and conceptual frameworks
• 3. Intellectual property rights and their diffusion around the world
• 4. The political economy of intellectual property
• 5. I am because I own vs. I am because we are
• Section Two: Terrains of conflict and terms of engagement
• 6. Owning up to owning traditional knowledge of medicinal plants
• 7. Using human rights to move beyond reformism to radicalism
• 8. Meet the new boss, same as the old boss
• 9. Free software and open source movements from digital rebellion to Aaron Swartz
• Coda: What’s radical about free/open source software?
• Section Three: Law, policy and jurisdiction
• 10. Rethinking the World Intellectual Property Organization
• 11. What is intellectual property?
• 12. Piracy, states and the legitimation of authority
• 13. Summary and concluding remarks
• About the editors and contributors
• Index