Intellectual Property and the public domain.

The earliest recorded use of the phrase “intellectual property” was in 1845 in a Massachusetts Circuit Court ruling. In the patent case Davoll et al. v. Brown, Justice Charles L. Woodbury wrote that “only in this way can we protect intellectual property, the efforts of the mind, productions and interests are as much a man’s own...as the wheat he cultivates, or the flocks he rears.” That wasn’t the idea’s origin, though. The general idea existed earlier: the statement that “discoveries are...property” is in Section 1 of the French law of 1791, “All new discoveries are the property of the author; to assure the inventor the property and temporary enjoyment of his discovery, there shall be delivered to him a patent for five, ten or fifteen years.” Also, Thomas Jefferson and James Madison, drafters of a “Copyright Clause”, were both quite doubtful about monopolies of copyright or patents, and argued extensively on the subject.
The World Intellectual Property Organization (WIPO) was established in 1967, as an agency of the United Nations; the idea increased in popularity after the enactment of the Bayh-Dole Act in 1980, at which time the term entered into common usage. Ideas that property is crime, theft or imposition were, and are, seen primarily as anarchistic. To enforce and extend the domain of private property at the expense of public good has come to be regarded as rational. As usual with our important ideas and social constructs, this is but a house of cards based on presumption, sleight-of-hand and moral dishonesty. To regard the “intellectual” as actual is central to the sleight-of-hand. The presumption and moral dishonesty involve allocation of rights without responsibilities to a tiny privileged class.
The ownership of ideas as an intellectual absurdity: the British and Australian governments claim copyright over their own legislation and sometimes court decisions, despite that “ignorance of the law is no excuse”! Technically, citizens need permission to copy their own laws! On the other hand, some government-generated information, especially in the US, is turned over to corporations that then sell it on; publicly funded information is “privatized” and thus not freely available.
Pretense is that “piracy” costs X amount – while the reality is that MicroSoft and many another company, and even author (think JRR Tolkien) have actually benefited from “knock-offs” which helped to vastly increase sales and profitability. Driven by music sharing producing new interest, the overall music industry has expanded while CD sales have fallen. But concert and other revenues more than offset the loss; artists do not suffer from achieving the popularity they seek (except perhaps in terms of loss of privacy). When ownership does not mean individual consumption, and a creation increases in value through greater sharing of it, the idea of the public domain comes more into focus.
There are many other misguided mis-conceptualizations about this perverse legal concept. Like “Free Trade”, it has often produced the diametric opposite of what gets repeatedly claimed in its favor. From its beginning in 1875, AT&T collected patents in order to ensure its monopoly on telephones, and thus slowed down the introduction of radio for some 20 years. Similarly, General Electric used control of patents to retard the introduction of fluorescent lights. Trade secrets are often used to suppress technological development. Trade secrets are sometimes defended on the grounds of privacy, but that too is bogus, as corporations are not individuals, regardless of any Supreme Court ruling. To grant “privacy” to a profit-motivated company is simply begging for trouble.
That the song “Happy Birthday”, the cartoon character Mickey Mouse, and drugs which can lessen the threat of epidemic disease, “enjoy” copyrights and patents is no better than blindness to reality – beyond blinders, and into total blindness. Extensions for the benefit of heirs, as have been made, are almost as bad - the protections of intellectual property to expand, both in duration and in scope. That some patents get suppressed is even worse.
The real point of origin of any idea cannot be definitively determined – standing on shoulders etc; nor is even most of the value of intellectual products due to labor. Intellectual products are social products; any piece of intellectual work is always built on, and is inconceivable without, the prior work of numerous people. Worse (again) is the totally absurd idea of patenting nature.
Intellectual property retards innovation and exploits Third World peoples; the expropriation by the advanced capitalist societies of the ecological spaces of less developed or more marginalized societies may just be part of a larger tragedy, but is certainly disdainfully cruel, and shortsighted, too. The relentless erosion of traditional practices of seed saving and herbal medicine, accompanied by the appropriation of “rights” over genetic material, to say nothing of laying claim to the knowledge of indigenous peoples, isn’t just exploitative. Some Third World peoples actually have to pay to use seeds and other genetic materials that have been freely available to them for centuries, if not millennia. Patenting nature may well be an ultimate in hubris.
Intellectual property is primarily of value only to those who are already powerful and wealthy. Intellectual property aggravates inequality, and fosters competitiveness over information and ideas, instead of cooperation. Most of the rewards from intellectual property go to big corporations, and not to creative innovators, who supposedly wouldn’t work without profit motivation (a questionable concept, indeed, that one). Once established, the whole concept ballooned; we barely have rights to our air anymore, and certainly can’t keep it clean!
Once copyrights were only for a period of a few decades, but now they may be for the life of the author plus 70 years. But do any writers feel a greater incentive to write and publish just because their works are copyrighted for 70 years after they die? Copyrights and patents to foster artistic and practical creative work by giving a short-term monopoly over certain uses of the work must always be short-term, and should not apply to those with no ability to purchase. We must not allow it to become so that a book can no longer be lent, or re-sold!
When I asked another “Westerner” resident in ChiangRai if I could utilize a snapshot of his posted on the internet, he explained how expensive photography is. Now, I’ll admit that the photography of Diane Arbus was something no-one else could do, and that she deserved reward for it, but most photography is simply snapshots. It should not be honored with legal protections: egotism over efficiency like that can only leave the lawyers taking all.
The traditional ideas of community, a “commons”, the common good and public domain remain viable, and necessary. Village greens, market squares and other public spaces are socially and politically vital spaces for communities. Unfortunately, corporately-owned property and space is now considered just as much private as your domicile, and more and more is corporately owned. Meanwhile, we act as if government were the problem, not the global megacorps pulling government’s strings…
How many of us are truly content to live kleptocratically, caring only for things and what we can impose on others?