It is in many ways difficult to debate the merits of intellectual property. Intellectual property is a topic of some vastness incorporating copyright, patents and trademarks along with specific legislative schemes for things like circuit designs and common law actions like passing off. We can ignore these latter schemes as being extremely complex and not covering the sorts of creative outputs relevant to this magazine. Further there is little controversial about trademarks (except for trademarks on common words like Harry Potter) so we will leave it to one side as well. Patents are so irremediably broken as a way of dealing with inventions -- most particularly pharmaceuticals -- that it hardly seems like an argument worth making. I direct you to every human rights article written on access to medications in the developing world to deal with that topic. Only someone who supports having children die of preventable causes supports patent protection as it currently exists in the world.
Which leaves us with copyright protection. Though intellectual property commenced life in 1624 in England with the Statute of Monopolies, that statute only covered patents and not copyright. The first copyright statute was the Statute of Ann in 1709 which prohibited the unauthorized copying of books. Before this time governments in Europe would provide monopoly rights to print a book to a particular printer but this was part of a regime of censorship whereby individual book printers and booksellers were licensed by the city and that license would be revoked if they were found to publish work critical of the government. The Statute of Ann granted copyright privileges for 14 years for new book and 21 years for books already in print.
Which is all a nice history lesson but let's get to the point. What are the aims of intellectual property protection and does the current regime effectively achieve those aims? The aims of copyright protection from the first legislation through to today can be summarized under two headings:
1. To compensate the creators of creative works for their investment in the creation
2. To incentivize the creation of creative works
Now, if intellectual property protection does not achieve these aims, we can safely conclude that the existing regime is a failure. I follow the critical theorist Raymond Geuss in rejecting the need to provide an alternative scheme -- the claim that one cannot criticize the status quo without an alternative is the means by which those who benefit from the status quo put off criticism.
On to the aims.
1. Does intellectual property compensate creators of creative works for their investment in the creation?
The first thing we need to consider under this heading is the way in which copyright provides financial compensation. When one creates a creative work one is granted a monopoly right over the reproduction of that creative work. Copyright does not protect the characters created (hence fan fiction) but only the specific expression of the work. This does extend cross-media so that a person cannot make a film which is substantially similar to someone's book, or a song from a painting and so on. This monopoly right is granted for the life of the author of the work PLUS an additional fifty years; conceivably, this can amount to well over one hundred years of protection (a good deal longer than the Statute of Ann -- which incidentally was the law in force when writers like Wordsworth, Keats and Jane Austen were writing).
Now nothing in the provision of this level of protection examines the actual investment of the authors in their creation of the work. A piece of awful self-indulgent Plath-esque poetry written by a depressed teenager in English class is granted exactly the same level of protection as a multi-volume history of the Roman Empire. If the aim were really to compensate for investment and effort we might expect any consideration at all of the actual effort expended in the awarding of protection.
2. Does the provision of intellectual property protection incentivize the creation of creative works?
The most enduring argument for intellectual property protection is that if authors/inventors are not provided with a monopoly right over their creation then they will not create and the world will be a worse place for the lack of arts and inventions. This argument is patently absurd (if you'll pardon the pun).
Every single day people write amazing works of admirable sophistication and post them to the internet for people to read freely. None expect to receive financial compensation for their work; they write to express themselves, to tell stories to be involved with groups of like-minded individuals. More fan fiction is written than original fiction: clearly, there are other incentives at play here.
My favorite example of the stupidity of the incentive argument is that almost all of the people who actually create medical breakthroughs receive no money for them. Almost all medical research work is performed by researchers in universities and drug companies who do not get to own the intellectual property of their own creations (that going to their employers instead). Professors in university search for a cure for cancer not because they will be rich (because they won't) but so they can be the person who cured cancer. So they achieve professional recognition. And, no offence, but the work to cure cancer is considerably more important than works of popular fiction: if these people will provide medical breakthroughs without intellectual property incentives surely we can expect Joss Whedon to get over me downloading an episode or two of Buffy.
To go back to fan fiction: though you might concede that people write without financial incentive you might also suggest they would be mortified if their work was copied and passed off as being someone else's. This surely is proof that people care about copyright. Maybe, but not quite. Passing somebody's work off as your own is rightly the target of moral censure and the reason we have the pejorative term 'plagiarism'. We don't need 100 years of copyright protection to defend against plagiarism -- and anyway, what possible harm can plagiarism cause after we are dead? In a school if a student plagiarizes they usually fail or are required to resubmit. If they were pursued for breach of copyright, the original author would be entitled to damages for lost revenue. Ummm. That seems to be kind of a problem since in most of these cases the work being plagiarized wasn't going to make any money. Plus, who on earth would want to launch expensive legal proceedings because somebody copied their essay about the unseen vampire in “The Fall of the House of Usher”? And it holds true in fan fiction as well. When somebody copies another person's work the original author wants 'justice' in the form of an apology, a retraction, and recognition of themselves as the true author of the work -- preferably as quickly as possible. The legal protection of intellectual property rights simply does not provide that.
So where are we at? The two rationales normally put forward to justify intellectual property just do not fly. It does not compensate people based on effort and people clearly do not need copyright or the promise of riches to inspire creative works.
There are a couple more arguments to deal with before we can finish though. One is the issue of stealing from artists; the second is the problems associated with intellectual property rights. Let's look at the latter first.
Anne Rice's LA home.
The other thing about the legality of intellectual property is that the rights granted are, by their very nature, assignable. What that means is that some bunch of douchebags running a record company make all the money while the artists receive somewhere between twenty cents and a dollar for each album sold. This is not some contingent corollary of the existing system -- it is necessitated by the status of intellectual property as rights. Just look at every other type of property in the world.
Which brings us nicely to the issue of stealing from artists. The single group of people most responsible for stealing from artists are publishers, be they book publishers, record companies or whoever. When I found out about the two zombie books written by my adversary, the first thing I did was go to a torrent site and download them. Then, of course, our illustrious Editor in Chief sent me an Amazon voucher and told me to buy them all legit like. Which, incidentally, I did. But I would love to know how much of the twenty dollars I spent on Amazon actually went to the author. And then I would much prefer to send that money directly to the author (though I'm not sure you can Western Union amounts under a dollar) and not subsidize some fuckwit editor's coke habit.
In summary. For the first time in history the internet is making it possible for the creators of works to connect directly with their public. And some are starting to do so. When Radiohead released their album In Rainbows online with a 'pay what you think it's worth' price they sold considerably fewer copies than they had of earlier albums and yet made considerably more money. Artists and writers who hang onto copyright as their way of doing business are just as anachronistic as the MPAA going after every person who downloads a song illegally. Why stay beholden to publishers who see artists as product to be sold? Especially if you are offering online versions anyway?
Intellectual property is obsolete when it comes to copyright (and patents are downright murderous).
-- Brad Crammond