Against intellectual property

Chapter three of Information Liberation, Brian Martin
<[email protected]>, Freedom Press 1998.


There is a strong case for opposing intellectual property. Among
other things, it often retards innovation and exploits Third World
peoples. Most of the usual arguments for intellectual property do not
hold up under scrutiny. In particular, the metaphor of the marketplace of
ideas provides no justification for ownership of ideas. The alternative
to intellectual property is that intellectual products not be owned,
as in the case of everyday language. Strategies against intellectual
property include civil disobedience, promotion of non-owned information,
and fostering of a more cooperative society.


The original rationale for copyrights and patents was to foster artistic
and practical creative work by giving a short-term monopoly over
certain uses of the work. This monopoly was granted to an individual or
corporation by government. The government's power to grant a monopoly
is corrupting. The biggest owners of intellectual property have sought
to expand it well beyond any sensible rationale.

There are several types of intellectual property or, in other words,
ownership of information, including copyright, patents, trademarks, trade
secrets, design rights and plant breeders' rights. Copyright covers the
expression of ideas such as in writing, music and pictures.  Patents
cover inventions, such as new substances or articles and industrial
processes. Trademarks are symbols associated with a good, service or
company. Trade secrets cover confidential business information. Design
rights cover different ways of presenting the outward appearance of
things. Plant breeders' rights grant ownership of novel, distinct and
stable plant varieties that are "invented."

The type of property that is familiar to most people is physical
objects. People own clothes, cars, houses and land. But there has always
been a big problem with owning ideas. Exclusive use or control of ideas
or the way they are expressed doesn't make nearly as much sense as the
ownership of physical objects.

Many physical objects can only be used by one person at a time. If one
person wears a pair of shoes, no one else can wear them at the same
time. (The person who wears them often owns them, but not always.) This
is not true of intellectual property. Ideas can be copied over and over,
but the person who had the original copy still has full use of it. Suppose
you write a poem. Even if a million other people have copies and read the
poem, you can still read the poem yourself. In other words, more than
one person can use an idea - a poem, a mathematical formula, a tune,
a letter - without reducing other people's use of the idea. Shoes and
poems are fundamentally different in this respect.

Technological developments have made it cheaper and easier to make copies
of information. Printing was a great advance: it eliminated the need
for hand copying of documents. Photocopying and computers have made it
even easier to make copies of written documents.  Photography and sound
recordings have done the same for visual and audio material. The ability
to protect intellectual property is being undermined by technology. Yet
there is a strong push to expand the scope of ownership of information.

This chapter outlines the case against intellectual property. I
begin by mentioning some of the problems arising from ownership
of information. Then I turn to weaknesses in its standard
justifications. Next is an overview of problems with the so-called
"marketplace of ideas," which has important links with intellectual
property. Finally, I outline some alternatives to intellectual property
and some possible strategies for moving towards them.

Problems with intellectual property

Governments generate large quantities of information. They produce
statistics on population, figures on economic production and health, texts
of laws and regulations, and vast numbers of reports. The generation of
this information is paid for through taxation and, therefore, it might
seem that it should be available to any member of the public. But in some
countries, such as Britain and Australia, governments claim copyright
in their own legislation and sometimes court decisions. Technically,
citizens would 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 to whomever can pay. Publicly
funded information is "privatised" and thus not freely available. [1]

The idea behind patents is that the fundamentals of an invention are
made public while the inventor for a limited time has the exclusive
right to make, use or sell the invention. But there are quite a few
cases in which patents have been used to suppress innovation. [2]
Companies may take out a patent, or buy someone else's patent, in order
to inhibit others from applying the ideas. From its beginning in 1875,
the US company AT&T collected patents in order to ensure its monopoly
on telephones. It slowed down the introduction of radio for some 20
years. In a similar fashion, General Electric used control of patents
to retard the introduction of fluorescent lights, which were a threat
to its sales of incandescent lights. Trade secrets are another way to
suppress technological development. Trade secrets are protected by law
but, unlike patents, do not have to be published openly. They can be
overcome legitimately by independent development or reverse engineering.

Biological information can now be claimed as intellectual property. US
courts have ruled that genetic sequences can be patented, even when
the sequences are found "in nature," so long as some artificial means
are involved in isolating them. This has led companies to race to
take out patents on numerous genetic codes. In some cases, patents
have been granted covering all transgenic forms of an entire species,
such as soybeans or cotton, causing enormous controversy and sometimes
reversals on appeal. One consequence is a severe inhibition on research by
non-patent holders. Another consequence is that transnational corporations
are patenting genetic materials found in Third World plants and animals,
so that some Third World peoples actually have to pay to use seeds
and other genetic materials that have been freely available to them
for centuries.

More generally, intellectual property is one more way for rich countries
to extract wealth from poor countries. Given the enormous exploitation
of poor peoples built into the world trade system, it would only
seem fair for ideas produced in rich countries to be provided at no
cost to poor countries. Yet in the GATT negotiations, representatives
of rich countries, especially the US, have insisted on strengthening
intellectual property rights. [3] Surely there is no better indication
that intellectual property is primarily of value to those who are already
powerful and wealthy.

The potential financial returns from intellectual property are said to
provide an incentive for individuals to create. In practice, though,
most creators do not actually gain much benefit from intellectual
property. Independent inventors are frequently ignored or exploited.
When employees of corporations and governments have an idea worth
protecting, it is usually copyrighted or patented by the organisation, not
the employee. Since intellectual property can be sold, it is usually the
rich and powerful who benefit. The rich and powerful, it should be noted,
seldom contribute much intellectual labour to the creation of new ideas.

These problems - privatisation of government information, suppression of
patents, ownership of genetic information and information not owned by
the true creator - are symptoms of a deeper problem with the whole idea
of intellectual property. Unlike goods, there are no physical obstacles
to providing an abundance of ideas. (Indeed, the bigger problem may be
an oversupply of ideas.) Intellectual property is an attempt to create
an artificial scarcity in order to give rewards to a few at the expense
of the many. Intellectual property aggravates inequality. It fosters
competitiveness over information and ideas, whereas cooperation makes
much more sense. In the words of Peter Drahos, researcher on intellectual
property, "Intellectual property is a form of private sovereignty over
a primary good - information." [4]

Here are some examples of the abuse of power that has resulted from the
power to grant sovereignty over information.

   The neem tree is used in India in the areas of medicine, toiletries,
   contraception, timber, fuel and agriculture. Its uses have been
   developed over many centuries but never patented. Since the mid 1980s,
   US and Japanese corporations have taken out over a dozen patents
   on neem-based materials. In this way, collective local knowledge
   developed by Indian researchers and villagers has been expropriated
   by outsiders who have added very little to the process. [5]

   Charles M. Gentile is a US photographer who for a decade had made and
   sold artistic posters of scenes in Cleveland, Ohio. In 1995 he made a
   poster of the I. M. Pei building, which housed the new Rock and Roll
   Hall of Fame and Museum. This time he got into trouble. The museum
   sued him for infringing the trademark that it had taken out on its
   own image. If buildings can be registered as trademarks, then every
   painter, photographer and film-maker might have to seek permission
   and pay fees before using the images in their art work. This is
   obviously contrary to the original justification for intellectual
   property, which is to encourage the production of artistic works.

   Prominent designer Victor Papanek writes: "...there is something
   basically wrong with the whole concept of patents and copyrights. If
   I design a toy that provides therapeutic exercise for handicapped
   children, then I think it is unjust to delay the release of the design
   by a year and a half, going through a patent application. I feel
   that ideas are plentiful and cheap, and it is wrong to make money
   from the needs of others. I have been very lucky in persuading many
   of my students to accept this view.  Much of what you will find as
   design examples throughout this book has never been patented. In fact,
   quite the opposite strategy prevails: in many cases students and I
   have made measured drawings of, say, a play environment for blind
   children, written a description of how to build it simply, and then
   mimeographed drawings and all. If any agency, anywhere, will write in,
   my students will send them all the instructions free of charge." [6]

   In 1980, a book entitled Documents on Australian Defence and
   Foreign Policy 1968-1975 was published by George Munster and Richard
   Walsh. It reproduced many secret government memos, briefings and
   other documents concerning Australian involvement in the Vietnam
   war, events leading up to the Indonesian invasion of East Timor,
   and other issues. Exposure of this material deeply embarrassed the
   Australian government. In an unprecedented move, the government issued
   an interim injunction, citing both the Crimes Act and the Copyright
   Act. The books, just put on sale, were impounded. Print runs of two
   major newspapers with extracts from the book were also seized.

   The Australian High Court ruled that the Crimes Act did not apply,
   but that the material was protected by copyright held by the
   government. Thus copyright, set up to encourage artistic creation,
   was used to suppress dissemination of documents for whose production
   copyright was surely no incentive. Later, Munster and Walsh produced
   a book using summaries and short quotes in order to present the
   information. [7]

   Scientology is a religion in which only certain members at advanced
   stages of enlightenment have access to special information, which
   is secret to others. Scientology has long been controversial,
   with critics maintaining that it exploits members. Some critics,
   including former Scientologists, have put secret documents from
   advanced stages on the Internet. In response, church officials invoked
   copyright. Police have raided homes of critics, seizing computers,
   disks and other equipment. This is all rather curious, since the
   stated purpose of copyright is not to hide information but rather
   to stimulate production of new ideas. [8]

The following examples show that the uncertainty of intellectual property
law encourages ambit claims that seem to be somewhat plausible. Some
targets of such claims give in for economic reasons.

   Ashleigh Brilliant is a "professional epigrammatist." He creates
   and copyrights thousands of short sayings, such as "Fundamentally,
   there may be no basis for anything." When he finds someone who has
   "used" one of his epigrams, he contacts them demanding a payment
   for breach of copyright. Television journalist David Brinkley wrote
   a book, Everyone is Entitled to My Opinion, the title of which he
   attributed to a friend of his daughter. Brilliant contacted Brinkley
   about copyright violation. Random House, Brinkley's publisher,
   paid Brilliant $1000 without contesting the issue, perhaps because
   it would have cost more than this to contest it. [9]

   Lawyer Robert Kunstadt has proposed that athletes could patent
   their sporting innovations, such as the "Fosbury flop" invented
   by high jumper Dick Fosbury. This might make a lot of money for
   a few stars. It would also cause enormous disputes. Athletes
   already have a tremendous incentive to innovate if it helps their
   performance. Patenting of basketball moves or choreography steps
   would serve mainly to limit the uptake of innovations and would
   mainly penalise those with fewer resources to pay royalties.

   The US National Basketball Association has sued in court for the
   exclusive right to transmit the scores of games as they are in
   progress. It had one success but lost on appeal. [10]

   A Scottish newspaper, The Shetland Times, went to court to stop
   an online news service from making a hypertext link to its web
   site. If hypertext links made without permission were made illegal,
   this would undermine the World Wide Web. [11]

These examples show that intellectual property has become a means for
exerting power in ways quite divorced from its original aim - promoting
the creation and use of new ideas.

Critique of standard justifications

Edwin C. Hettinger has provided an insightful critique of the main
arguments used to justify intellectual property, so it is worthwhile
summarising his analysis. [12] He begins by noting the obvious argument
against intellectual property, namely that sharing intellectual objects
still allows the original possessor to use them. Therefore, the burden
of proof should lie on those who argue for intellectual property.

The first argument for intellectual property is that people are entitled
to the results of their labour. Hettinger's response is that not all
the value of intellectual products is due to labour. Nor is the value
of intellectual products due to the work of a single labourer, or any
small group. Intellectual products are social products.

Suppose you have written an essay or made an invention. Your intellectual
work does not exist in a social vacuum. It would not have been possible
without lots of earlier work - both intellectual and nonintellectual - by
many other people. This includes your teachers and parents. It includes
the earlier authors and inventors who provided the foundation for your
contribution. It also includes the many people who discussed and used
ideas and techniques, at both theoretical and practical levels, and
provided a cultural foundation for your contribution. It includes the
people who built printing presses, laid telephone cables, built roads
and buildings and in many other ways contributed to the "construction"
of society. Many other people could be mentioned. The point is that
any piece of intellectual work is always built on and is inconceivable
without the prior work of numerous people.

Hettinger points out that the earlier contributors to the development
of ideas are not present. Today's contributor therefore cannot validly
claim full credit.

Is the market value of a piece of an intellectual product a reasonable
indicator of a person's contribution? Certainly not. As noted by Hettinger
and as will be discussed in the next section, markets only work once
property rights have been established, so it is circular to argue that
the market can be used to measure intellectual contributions. Hettinger
summarises this point in this fashion: "The notion that a laborer is
naturally entitled as a matter of right to receive the market value
of her product is a myth. To what extent individual laborers should be
allowed to receive the market value of their products is a question of
social policy."

A related argument is that people have a right to possess and personally
use what they develop. Hettinger's response is that this doesn't show
that they deserve market values, nor that they should have a right to
prevent others from using the invention.

A second major argument for intellectual property is that people
deserve property rights because of their labour. This brings up the
general issue of what people deserve, a topic that has been analysed
by philosophers. Their usual conclusions go against what many people
think is "common sense." Hettinger says that a fitting reward for labour
should be proportionate to the person's effort, the risk taken and moral
considerations. This sounds all right - but it is not proportionate to
the value of the results of the labour, whether assessed through markets
or by other criteria. This is because the value of intellectual work
is affected by things not controlled by the worker, including luck and
natural talent. Hettinger says "A person who is born with extraordinary
natural talents, or who is extremely lucky, deserves nothing on the
basis of these characteristics."

A musical genius like Mozart may make enormous contributions to
society. But being born with enormous musical talents does not
provide a justification for owning rights to musical compositions or
performances. Likewise, the labour of developing a toy like Teenage
Mutant Ninja Turtles that becomes incredibly popular does not provide
a justification for owning rights to all possible uses of turtle symbols.

What about a situation where one person works hard at a task and a second
person with equal talent works less hard? Doesn't the first worker deserve
more reward? Perhaps so, but property rights do not provide a suitable
mechanism for allocating rewards. The market can give great rewards
to the person who successfully claims property rights for a discovery,
with little or nothing for the person who just missed out.

A third argument for intellectual property is that private property is a
means for promoting privacy and a means for personal autonomy.  Hettinger
responds that privacy is protected by not revealing information, not by
owning it. Trade secrets cannot be defended on the grounds of privacy,
because corporations are not individuals. As for personal autonomy,
copyrights and patents aren't required for this.

A fourth argument is that rights in intellectual property are needed
to promote the creation of more ideas. The idea is that intellectual
property gives financial incentives to produce ideas. Hettinger thinks
that this is the only decent argument for intellectual property. He
is still somewhat sceptical, though. He notes that the whole argument
is built on a contradiction, namely that in order to promote the
development of ideas, it is necessary to reduce people's freedom to use
them. Copyrights and patents may encourage new ideas and innovations,
but they also restrict others from using them freely.

This argument for intellectual property cannot be resolved without further
investigation. Hettinger says that there needs to be an investigation
of how long patents and copyrights should be granted, to determine an
optimum period for promoting intellectual work.

For the purposes of technological innovation, information becomes more
valuable when augmented by new information: innovation is a collective
process. If firms in an industry share information by tacit cooperation or
open collaboration, this speeds innovation and reduces costs. Patents,
which put information into the market and raise information costs,
actually slow the innovative process. [13]

It should be noted that although the scale and pace of intellectual work
has increased over the past few centuries, the duration of protection
of intellectual property has not been reduced, as might be expected,
but greatly increased. The US government did not recognise foreign
copyrights for much of the 1800s. Where once copyrights were only for
a period of a few decades, they now may be for the life of the author
plus 70 years. In many countries, chemicals and pharmaceuticals were
not patentable until recently. This suggests that even if intellectual
property can be justified on the basis of fostering new ideas, this
is not the driving force behind the present system of copyrights and
patents. After all, few writers feel a greater incentive to write and
publish just because their works are copyrighted for 70 years after they
die, rather than just until they die.

Of various types of intellectual property, copyright is especially
open for exploitation. Unlike patents, copyright is granted without
an application and lasts far longer. Originally designed to encourage
literary and artistic work, it now applies to every memo and doodle and
is more relevant to business than art. There is no need to encourage
production of business correspondence, so why is copyright applied to
it? [14]

Intellectual property is built around a fundamental tension: ideas are
public but creators want private returns. To overcome this tension,
a distinction developed between ideas and their expression. Ideas could
not be copyrighted but their expression could. This peculiar distinction
was tied to the romantic notion of the autonomous creator who somehow
contributes to the common pool of ideas without drawing from it. This
package of concepts apparently justified authors in claiming residual
rights - namely copyright - in their ideas after leaving their hands,
while not giving manual workers any rationale for claiming residual
rights in their creations.[15] In practice, though, the idea-expression
distinction is dubious and few of the major owners of intellectual
property have the faintest resemblance to romantic creators.

The marketplace of ideas

The idea of intellectual property has a number of connections with the
concept of the marketplace of ideas, a metaphor that is widely used in
discussions of free speech. To delve a bit more deeply into the claim
that intellectual property promotes development of new ideas, it is
therefore helpful to scrutinise the concept of the marketplace of ideas.

The image conveyed by the marketplace of ideas is that ideas compete for
acceptance in a market. As long as the competition is fair - which means
that all ideas and contributors are permitted access to the marketplace
- then good ideas will win out over bad ones.  Why? Because people will
recognise the truth and value of good ideas. On the other hand, if the
market is constrained, for example by some groups being excluded, then
certain ideas cannot be tested and examined and successful ideas may
not be the best ideas.

Logically, there is no reason why a marketplace of ideas has to be a
marketplace of owned ideas: intellectual property cannot be strictly
justified by the marketplace of ideas. But because the marketplace
metaphor is an economic one, there is a strong tendency to link
intellectual property with the marketplace of ideas. As discussed later,
there is a link between these two concepts, but not in the way their
defenders usually imagine.

There are plenty of practical examples of the failure of the marketplace
of ideas. Groups that are stigmatised or that lack power seldom have
their viewpoints presented. This includes ethnic minorities, prisoners,
the unemployed, manual workers and radical critics of the status quo,
among many others. Even when such groups organise themselves to promote
their ideas, their views are often ignored while the media focus on
their protests, as in the case of peace movement rallies and marches.

Demonstrably, good ideas do not always win out in the marketplace of
ideas. To take one example, the point of view of workers is frequently
just as worthy as that of employers. Yet there is an enormous imbalance in
the presentation of their respective viewpoints in the media. One result
is that quite a few ideas that happen to serve the interests of employers
at the expense of workers - such as that the reason people don't have
jobs is because they aren't trying hard enough to find them - are widely
accepted although they are rejected by virtually all informed analysts.

There is a simple and fundamental reason for the failure of the
marketplace of ideas: inequality, especially economic inequality. [16]
Perhaps in a group of people sitting in a room discussing an issue,
there is some prospect of a measured assessment of different ideas. But
if these same people are isolated in front of their television sets,
and one of them owns the television station, it is obvious that there
is little basis for testing of ideas. The reality is that powerful and
rich groups can promote their ideas with little chance of rebuttal from
those with different perspectives. As described in chapter 2, the mass
media are powerful enterprises that promote their own interests as well
as those of governments and corporations.

In circumstances where participants are approximate equals, such as
intellectual discussion among peers in an academic discipline, then the
metaphor of competition of ideas has some value. But ownership of media or
ideas is hardly a prerequisite for such discussion.  It is the equality
of power that is essential. To take one of many possible examples,
when employees in corporations lack the freedom to speak openly without
penalty they cannot be equal participants in discussions (see chapter 5).

Some ideas are good - in the sense of being valuable to society - but are
unwelcome. Some are unwelcome to powerful groups, such as that governments
and corporations commit horrific crimes or that there is a massive trade
in technologies of torture and repression that needs to be stopped. Others
are challenging to much of the population, such as that imprisonment does
not reduce the crime rate or that financial rewards for good work on the
job or grades for good schoolwork are counterproductive. [17] (Needless
to say, individuals might disagree with the examples used here. The
case does not rest on the examples themselves, but on the existence of
some socially valuable ideas that are unwelcome and marginalised.) The
marketplace of ideas simply does not work to treat such unwelcome ideas
with the seriousness they deserve. The mass media try to gain audiences
by pleasing them, not by confronting them with challenging ideas. [18]

The marketplace of ideas is often used to justify free speech. The
argument is that free speech is necessary in order for the marketplace of
ideas to operate: if some types of speech are curtailed, certain ideas
will not be available on the marketplace and thus the best ideas will
not succeed. This sounds plausible. But it is possible to reject the
marketplace of ideas while still defending free speech on the grounds
that it is essential to human liberty.

If the marketplace of ideas doesn't work, what is the solution? The
usual view is that governments should intervene to ensure that all
groups have fair access to the media. But this approach, based on
promoting equality of opportunity, ignores the fundamental problem of
economic inequality. Even if minority groups have some limited chance
to present their views in the mass media, this can hardly compensate
for the massive power of governments and corporations to promote their
views. In addition, it retains the role of the mass media as the central
mechanism for disseminating ideas. So-called reform proposals either
retain the status quo or introduce government censorship.

Underlying the market model is the idea of self-regulation: the "free
market" is supposed to operate without outside intervention and, indeed,
to operate best when outside intervention is minimised. In practice, even
markets in goods do not operate autonomously: the state is intimately
involved in even the freest of markets. In the case of the marketplace
of ideas, the state is involved both in shaping the market and in making
it possible, for example by promoting and regulating the mass media. The
world's most powerful state, the US, has been the driving force behind the
establishment of a highly protectionist system of intellectual property,
using power politics at GATT, the General Agreement on Tariffs and Trade.

Courts may use the rhetoric of the marketplace of ideas but actually
interpret the law to support the status quo. For example, speech is
treated as free until it might actually have some consequences. Then it
is curtailed when it allegedly presents a "clear and present danger,"
such as when peace activists expose information supposedly threatening to
"national security". But speech without action is pointless. True liberty
requires freedom to promote one's views in practice. [19] Powerful groups
have the ability to do this. Courts only intervene when others try to
do the same.

As in the case of trade generally, a property-based "free market" serves
the interests of powerful producers. In the case of ideas, this includes
governments and corporations plus intellectuals and professionals linked
with universities, entertainment, journalism and the arts. Against such
an array of intellectual opinion, it is very difficult for other groups,
such as manual workers, to compete. [20] The marketplace of ideas is a
biased and artificial market that mostly serves to fine-tune relations
between elites and provide them with legitimacy. [21]

The implication of this analysis is that intellectual property cannot
be justified on the basis of the marketplace of ideas. The utilitarian
argument for intellectual property is that ownership is necessary to
stimulate production of new ideas, because of the financial incentive.
This financial incentive is supposed to come from the market, whose
justification is the marketplace of ideas. If, as critics argue, the
marketplace of ideas is flawed by the presence of economic inequality
and, more fundamentally, is an artificial creation that serves powerful
producers of ideas and legitimates the role of elites, then the case
for intellectual property is unfounded. Intellectual property can only
serve to aggravate the inequality on which it is built.

The alternative

The alternative to intellectual property is straightforward: intellectual
products should not be owned. That means not owned by individuals,
corporations, governments, or the community as common property. It means
that ideas are available to be used by anyone who wants to.

One example of how this might operate is language, including the words,
sounds and meaning systems with which we communicate every day. Spoken
language is free for everyone to use. (Actually, corporations do control
bits of language through trademarks and slogans.)

Another example is scientific knowledge. Scientists do research and then
publish their results. A large proportion of scientific knowledge is
public knowledge. There are some areas of science that are not public,
such as classified military research. It is usually argued that the most
dynamic parts of science are those with the least secrecy. Open ideas
can be examined, challenged, modified and improved. To turn scientific
knowledge into a commodity on the market, as is happening with genetic
engineering, arguably inhibits science.

Few scientists complain that they do not own the knowledge they
produce. Indeed, they are much more likely to complain when corporations
or governments try to control dissemination of ideas. Most scientists
receive a salary from a government, corporation or university. Their
livelihoods do not depend on royalties from published work.

University scientists have the greatest freedom. The main reasons they
do research are for the intrinsic satisfaction of investigation and
discovery - a key motivation for many of the world's great scientists -
and for recognition by their peers. To turn scientific knowledge into
intellectual property would dampen the enthusiasm of many scientists for
their work. However, as governments reduce their funding of universities,
scientists and university administrations increasingly turn to patents
as a source of income.

Language and scientific knowledge are not ideal; indeed, they are
often used for harmful purposes. It is difficult to imagine, though,
how turning them into property could make them better.

The case of science shows that vigorous intellectual activity is quite
possible without intellectual property, and in fact that it may be
vigorous precisely because information is not owned. But there are lots
of areas that, unlike science, have long operated with intellectual
property as a fact of life. What would happen without ownership of
information? Many objections spring to mind.

Plagiarism

Many intellectual workers fear being plagiarised and many of them think
that intellectual property provides protection against this. After all,
without copyright, why couldn't someone put their name on your essay and
publish it? Actually, copyright provides very little protection against
plagiarism. [22] So-called "moral rights" of authors to be credited are
backed by law in many countries but are an extremely cumbersome way of
dealing with plagiarism.

Plagiarism means using the ideas of others without adequate
acknowledgment. There are several types of plagiarism. One is plagiarism
of ideas: someone takes your original idea and, using different
expression, presents it as their own. Copyright provides no protection
at all against this form of plagiarism. Another type of plagiarism is
word-for-word plagiarism, where someone takes the words you've written
- a book, an essay, a few paragraphs or even just a sentence - and,
with or without minor modifications, presents them as their own. This
sort of plagiarism is covered by copyright - assuming that you hold
the copyright. In many cases, copyright is held by the publisher, not
the author.

In practice, plagiarism goes on all the time, in various ways and degrees,
[23] and copyright law is hardly ever used against it. The most effective
challenge to plagiarism is not legal action but publicity. At least among
authors, plagiarism is widely condemned. For this reason, and because
they seek to give credit where it's due, most writers do take care to
avoid plagiarising.

There is an even more fundamental reason why copyright provides no
protection against plagiarism: the most common sort of plagiarism is built
into social hierarchies. Government and corporate reports are released
under the names of top bureaucrats who did not write them; politicians
and corporate executives give speeches written by underlings. These are
examples of a pervasive misrepresentation of authorship in which powerful
figures gain credit for the work of subordinates. [24] Copyright, if it
has any effect at all, reinforces rather than challenges this sort of
institutionalised plagiarism.

Royalties

What about all the writers, inventors and others who depend for their
livelihood on royalties? First, it should be mentioned that only a
very few individuals make enough money from royalties to live on. For
example, there are probably only a few hundred self-employed writers
in the US. [25] Most of the rewards from intellectual property go to
a few big companies. But the question is still a serious one for those
intellectual workers who depend on royalties and other payments related
to intellectual property.

The alternative in this case is some reorganisation of the economic
system. Those few currently dependent on royalties could instead receive
a salary, grant or bursary, just as most scientists do.

Getting rid of intellectual property would reduce the incomes of a few
highly successful creative individuals, such as author Agatha Christie,
composer Andrew Lloyd Webber and filmmaker Steven Spielberg. Publishers
could reprint Christie's novels without permission, theatre companies
could put on Webber's operas whenever they wished and Spielberg's
films could be copied and screened anywhere. Jurassic Park and Lost
World T-shirts, toys and trinkets could be produced at will. This
would reduce the income of and, to some extent, the opportunities for
artistic expression by these individuals. But there would be economic
resources released: there would be more money available for other
creators. Christie, Webber and Spielberg might be just as popular
without intellectual property to channel money to them and their family
enterprises.

The typical creative intellectual is actually worse off due to
intellectual property. Consider an author who brings in a few hundred
or even a few thousand dollars of royalty income per year. This is a
tangible income, which creators value for its monetary and symbolic
value. But this should be weighed against payments of royalties and
monopoly profits when buying books, magazines, CDs and computer software.

Many of these costs are invisible. How many consumers, for example,
realise how much they are paying for intellectual property when buying
prescription medicines, paying for schools (through fees or taxes),
buying groceries or listening to a piece of music on the radio?  Yet in
these and many other situations, costs are substantially increased due
to intellectual property. Most of the extra costs go not to creators but
to corporations and to bureaucratic overheads - such as patent offices
and law firms - that are necessary to keep the system of intellectual
property going.

Stimulating creativity

What about the incentive to create? Without the possibility of wealth
and fame, what would stimulate creative individuals to produce works
of genius? Actually, most creators and innovators are motivated by
their own intrinsic interest, not by rewards. There is a large body of
evidence showing, contrary to popular opinion, that rewards actually
reduce the quality of work. [26] If the goal is better and more creative
work, paying creators on a piecework basis, such as through royalties,
is counterproductive.

In a society without intellectual property, creativity is likely to
thrive. Most of the problems that are imagined to occur if there is no
intellectual property - such as the exploitation of a small publisher
that renounces copyright - are due to economic arrangements that maintain
inequality. The soundest foundation for a society without intellectual
property is greater economic and political equality. This means not just
equality of opportunity, but equality of outcomes. This does not mean
uniformity and does not mean levelling imposed from the top: it means
freedom and diversity and a situation where people can get what they
need but are not able to gain great power or wealth by exploiting the
work of others. This is a big issue. Suffice it to say here that there
are strong social and psychological arguments in favour of equality. [27]

Strategies for change

Intellectual property is supported by many powerful groups: the most
powerful governments and the largest corporations. The mass media seem
fully behind intellectual property, partly because media monopolies
would be undercut if information were more freely copied and partly
because the most influential journalists depend on syndication rights
for their stories.

Perhaps just as important is the support for intellectual property from
many small intellectual producers, including academics and freelance
writers. Although the monetary returns to these intellectuals are seldom
significant, they have been persuaded that they both need and deserve
their small royalties. This is similar to the way that small owners
of goods and land, such as homeowners, strongly defend the system of
private property, whose main beneficiaries are the very wealthy who own
vast enterprises based on many other people's labour. Intellectuals are
enormous consumers as well as producers of intellectual work. A majority
would probably be better off financially without intellectual property,
since they wouldn't have to pay as much for other people's work.

Another problem in developing strategies is that it makes little sense
to challenge intellectual property in isolation. If we simply imagine
intellectual property being abolished but the rest of the economic system
unchanged, then many objections can be made. Challenging intellectual
property must involve the development of methods to support creative
individuals.

Change thinking

Talking about "intellectual property" implies an association with
physical property. Instead, it is better to talk about monopolies
granted by governments, for example "monopoly privilege." This gives
a better idea of what's going on and so helps undermine the legitimacy
of the process. Associated with this could be an appeal to free market
principles, challenging the barriers to trade in ideas imposed by
monopolies granted to copyright and patent holders.

As well, a connection should be forged with ideals of free speech. Rather
than talk of intellectual property in terms of property and trade, it
should be talked about in terms of speech and its impediments. Controls
over genetic information should be talked about in terms of public health
and social welfare rather than property.

The way that an issue is framed makes an enormous difference to
the legitimacy of different positions. Once intellectual property is
undermined in the minds of many citizens, it will become far easier to
topple its institutional supports.

Expose the costs

It can cost a lot to set up and operate a system of intellectual
property. This includes patent offices, legislation, court cases,
agencies to collect fees and much else. There is a need for research
to calculate and expose these costs as well as the transfers of money
between different groups and countries. A middle-ranking country from the
First World, such as Australia, pays far more for intellectual property
- mostly to the US - than it receives. Once the figures are available
and understood, this will aid in reducing the legitimacy of the world
intellectual property system. [28]

Reproduce protected works

From the point of view of intellectual property, this is called
"piracy." (This is a revealing term, considering that such language is
seldom used when, for example, a boss takes credit for a subordinate's
work or when a Third World intellectual is recruited to a First World
position. In each case, investments in intellectual work made by
an individual or society are exploited by a different individual or
society with more power.) This happens every day when people photocopy
copyrighted articles, tape copyrighted music, or duplicate copyrighted
software. It is precisely because illegal copying is so easy and so
common that big governments and corporations have mounted offensives to
promote intellectual property rights.

Unfortunately, illegal copying is not a very good strategy against
intellectual property, any more than stealing goods is a way to challenge
ownership of physical property. Theft of any sort implicitly accepts the
existing system of ownership. By trying to hide the copying and avoiding
penalties, the copiers appear to accept the legitimacy of the system.

Openly refuse to cooperate with intellectual property

This is far more powerful than illicit copying. The methods of nonviolent
action can be used here, including noncooperation, boycotts and setting
up alternative institutions. By being open about the challenge, there
is a much greater chance of focussing attention on the issues at stake
and creating a dialogue. By being principled in opposition, and being
willing to accept penalties for civil disobedience to laws on intellectual
property, there is a much greater chance of winning over third parties. If
harsh penalties are applied to those who challenge intellectual property,
this could produce a backlash of sympathy. Once mass civil disobedience
to intellectual property laws occurs, it will be impossible to stop.

Something like that is already occurring. Because photocopying of
copyrighted works is so common, there is seldom any attempt to enforce
the law against small violators - to do so would alienate too many
people. Copyright authorities therefore seek other means of collecting
revenues from intellectual property, such as payments by institutions
based on library copies.

Already there is mass discontent in India over the impact of the world
intellectual property regime and patenting of genetic materials, with
rallies of hundreds of thousands of farmers. [29] If this scale of protest
could be combined with other actions that undermine the legitimacy of
intellectual property, the entire system could be challenged.

Promote non-owned information

A good example is public domain software, which is computer software
that is made available free to anyone who wants it. The developers of
"freeware" gain satisfaction out of their intellectual work and out
of providing a service to others. The Free Software Foundation has
spearheaded the development and promotion of freeware. It "is dedicated
to eliminating restrictions on people's right to use, copy, modify and
redistribute computer programs" by encouraging people to develop and
use free software.

A suitable alternative to copyright is shareright. A piece of freeware
might be accompanied by the notice, "You may reproduce this material
if your recipients may also reproduce it." This encourages copiers but
refuses any of them copyright.

The Free Software Foundation has come up with another approach,
called "copyleft." The Foundation states, "The simplest way to make a
program free is to put it in the public domain, uncopyrighted. But this
permits proprietary modified versions, which deny others the freedom
to redistribute and modify; such versions undermine the goal of giving
freedom to all users. To prevent this, `copyleft' uses copyright in a
novel manner. Typically copyrights take away freedoms; copyleft preserves
them. It is a legal instrument that requires those who pass on a program
to include the rights to use, modify, and redistribute the code; the
code and the freedoms become legally inseparable." [30] Until copyright
is eliminated or obsolete, innovations such as copyleft are necessary
to avoid exploitation of those who want to make their work available
to others.

Develop principles to deal with credit for intellectual work

This is important even if credit is not rewarded financially. This
would include guidelines for not misrepresenting another person's
work.  Intellectual property gives the appearance of stopping unfair
appropriation of ideas although the reality is quite different. If
intellectual property is to be challenged, people need to be reassured
that misappropriation of ideas will not become a big problem.

More fundamentally, it needs to be recognised that intellectual work
is inevitably a collective process. No one has totally original ideas:
ideas are always built on the earlier contributions of others. (That's
especially true of this chapter!) Furthermore, culture - which makes ideas
possible - is built not just on intellectual contributions but also on
practical and material contributions, including the rearing of families
and construction of buildings. Intellectual property is theft, sometimes
in part from an individual creator but always from society as a whole.

In a more cooperative society, credit for ideas would not be such a
contentious matter. Today, there are vicious disputes between scientists
over who should gain credit for a discovery. This is because scientists'
careers and, more importantly, their reputations, depend on credit
for ideas. In a society with less hierarchy and greater equality,
intrinsic motivation and satisfaction would be the main returns from
contributing to intellectual developments. This is quite compatible
with everything that is known about human nature. [31] The system of
ownership encourages groups to put special interests above general
interests. Sharing information is undoubtedly the most efficient way
to allocate productive resources. The less there is to gain from credit
for ideas, the more likely people are to share ideas rather than worry
about who deserves credit for them.

                                     # # #

For most book publishers, publishing an argument against intellectual
property raises a dilemma. If the work is copyrighted as usual, this
clashes with the argument against copyright. On the other hand, if
the work is not copyrighted, then unrestrained copying might undermine
sales. It's worth reflecting on this dilemma as it applies to this book.

It is important to keep in mind the wider goal of challenging the
corruptions of information power. Governments and large corporations
are particularly susceptible to these corruptions. They should be the
first targets in developing a strategy against intellectual property.

Freedom Press is not a typical publisher. It has been publishing
anarchist writings since 1886, including books, magazines, pamphlets and
leaflets. Remarkably, neither authors nor editors have ever been paid
for their work. Freedom Press is concerned with social issues and social
change, not with material returns to anyone involved in the enterprise.

Because it is a small publisher, Freedom Press would be hard pressed to
enforce its claims to copyright even if it wanted to. Those who sympathise
with the aims of Freedom Press and who would like to reproduce some of
its publications therefore should consider practical rather than legal
issues. Would the copying be on such a scale as to undermine Freedom
Press's limited sales? Does the copying give sufficient credit to Freedom
Press so as to encourage further sales? Is the copying for commercial
or noncommercial purposes?

In answering such questions, it makes sense to ask Freedom Press. This
applies whether the work is copyright or not. If asking is not feasible,
or the copying is of limited scale, then good judgement should be
used. In my opinion, using one chapter - especially this chapter! -
for nonprofit purposes should normally be okay.

So in the case of Freedom Press, the approach should be to negotiate in
good faith and to use good judgement in minor or urgent cases. Negotiation
and good judgement of this sort will be necessary in any society that
moves beyond intellectual property.

1. Dorothy Nelkin, Science as Intellectual Property: Who Controls
Research? (New York: Macmillan, 1984).

2. Richard Dunford, "The suppression of technology as a strategy for
controlling resource dependence," Administrative Science Quarterly ,
Vol. 32, 1987, pp. 512-525.

3. Peter Drahos, "Global property rights in information: the story of
TRIPS at the GATT," Prometheus, Vol. 13, No. 1, June 1995, pp.  6-19;
Surendra J. Patel, "Intellectual property rights in the Uruguay Round:
a disaster for the South?" Economic and Political Weekly, Vol. 24,
No. 18, 6 May 1989, pp. 978-993; Darrell A. Posey and Graham Dutfield,
Beyond Intellectual Property: Toward Traditional Rights for Indigenous
Peoples and Local Communities (Ottawa: International Development Research
Centre, 1996).

4. Peter Drahos, "Decentring communication: the dark side of intellectual
property," in Tom Campbell and Wojciech Sadurski (eds.), Freedom of
Communication (Aldershot: Dartmouth, 1994), pp. 249-279, at p. 274.

5. Vandana Shiva and Radha Holla-Bhar, "Intellectual piracy and the neem
tree," Ecologist, Vol. 23, No. 6, 1993, pp. 223-227.

6. Victor Papanek, Design for the Real World: Human Ecology and Social
Change (London: Thames and Hudson, 1985, 2nd edition), p.  xi.

7. George Munster, Secrets of State: A Detailed Assessment of the Book
They Banned (Australia: Walsh & Munster, 1982).

8. Wendy M. Grossman, "alt.scientology.war," Wired, Vol. 3, No. 12,
December 1995, pp. 172-177, 248-252.

9. David D. Kirkpatrick, "Brilliant minds may think alike, but Brilliant
lines can cost you," Wall Street Journal, 27 January 1997, p. B1.

10. Lance Rose, "Technical foul: the NBA double dribbles on intellectual
property," Wired, Vol. 5, No. 1, January 1997, p. 96.

11. Rob Edwards, "Scottish court case could unravel the Web," New
Scientist, 16 November 1996, p. 5.

12. Edwin C. Hettinger, "Justifying intellectual property," Philosophy and
Public Affairs, Vol. 18, No. 1, Winter 1989, pp. 31-52, quotes at pp. 39
and 42. See also David Vaver, "Intellectual property today: of myths and
paradoxes," Canadian Bar Review, Vol. 69, No. 1, March 1990, pp. 98-128.

13. Thomas Mandeville, Understanding Novelty: Information, Technological
Change, and the Patent System (Norwood, NJ: Ablex, 1996).

14. David Vaver, "Rejuvenating copyright," Canadian Bar Review, Vol. 75,
March 1996, pp. 69-80.

15. James Boyle, Shamans, Software, and Spleens: Law and the Social
Construction of the Information Economy (Cambridge, MA: Harvard University
Press, 1996).

16. C. Edwin Baker, Human Liberty and Freedom of Speech (New York:
Oxford University Press, 1989).

17. On these points, see respectively Jeffrey Ian Ross (ed.),
Controlling State Crime: An Introduction (New York: Garland, 1995);
Steve Wright, "The new technologies of political repression: a case
for arms control?" Philosophy and Social Action, Vol. 17, Nos. 3-4,
July-December 1991, pp. 31-62; Nils Christie, Crime Control as Industry:
Towards Gulags, Western Style (London: Routledge, 1994, 2nd edition);
Alfie Kohn, Punished by Rewards: The Trouble with Gold Stars, Incentive
Plans, A's, Praise, and other Bribes (Boston: Houghton Mifflin, 1993).

18. Robert M. Entman, Democracy without Citizens: Media and the Decay
of American Politics (New York: Oxford University Press, 1989).

19. Baker (see note 16).

20. Benjamin Ginsberg, The Captive Public: How Mass Media Promotes State
Power (New York: Basic Books, 1986).

21. Stanley Ingber, "The marketplace of ideas: a legitimizing myth,"
Duke Law Journal, Vol. 1984, No. 1, February 1984, pp. 1-91.

22. Laurie Stearns, "Copy wrong: plagiarism, process, property, and the
law," California Law Review, Vol. 80, No. 2, March 1992, pp.  513-553.

23. Thomas Mallon, Stolen Words: Forays into the Origins and Ravages
of Plagiarism (New York: Ticknor and Fields, 1989); Ari Posner, "The
culture of plagiarism," The New Republic, 18 April 1988, pp. 19-24.

24. Brian Martin, "Plagiarism: a misplaced emphasis," Journal of
Information Ethics, Vol. 3, No. 2, Fall 1994, pp. 36-47.

24. Vaver, 1990 (see note 12).

24. Kohn (see note 17).

27. John Baker, Arguing for Equality (London: Verso, 1987); Morton
Deutsch, Distributive Justice: A Social-psychological Perspective (New
Haven: Yale University Press, 1985); William Ryan, Equality (New York:
Pantheon, 1981).

28. These two strategies are proposed by Peter Drahos, "Thinking
strategically about intellectual property rights," paper prepared for
the Forum of Parliamentarians on Intellectual Property and the National
Working Group on Patent Laws, 1996.

29. The magazine Third World Resurgence has regular reports on this
issue. See for example Martin Khor, "A worldwide fight against biopiracy
and patents on life," Third World Resurgence, No. 63, November 1995,
pp. 9-11, and the special issues on patenting of life: No. 57, May 1995
and No. 84, August 1997.

30. GNU's Bulletin, January 1995 (Free Software Foundation, 59 Temple
Place, Suite 330, Boston MA 02111-1307, USA; [email protected]). See
http://www.gnu.org/ for the latest description.

31. Alfie Kohn, The Brighter Side of Human Nature: Altruism and Empathy
in Everyday Life (New York: Basic Books, 1990).

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