If You Want to Change Intellectual Property Laws

I haven't entered into the debates on copyright and other forms of intellectual property. I understand the copyright laws as they apply to me and the other creative people I know, but I don't feel strongly enough about the issue to argue for or against it. I'm saving my energy for other matters.

However, in reading comments from various anti-IP folks (some people more credible than others: snarky anonymous posts don't elevate the discourse), I've found some of their points less compelling than others. Why, I think to myself, should lawmakers change current laws if a strong case hasn't been made to do so? After all, there are all sorts of other issues requiring national and international action.

With that in mind, I decided to make a list of comments I've read on why IP protection is bad, ranking them in ascending order of persuasiveness. For the most part they go from arguments that focus on individual benefit to arguments that focus on societal benefit (without sacrificing the individual in the process).

1. I want it (e.g., content, music, ideas, images) for free, and they won't give it to me.
This comes off as self-centered.

2. I want to use it, and they won't let me.
This is a little stronger than the above statement because it implies you're going to do something proactive with the idea rather than just consume it, but it also implies that you can't come up with something on your own.

3. Culture was built by taking other people's ideas.
Again, not really a strong reason to dump IP protection, especially copyrights. Society has functioned pretty well so far within copyright restrictions. Creative people usually can find legal ways translate inspiration from multiple sources into something they can call their own.

4. I have already used it and now they want to sue me.
This has to do less with the rightness or wrongness of the laws and more with to do with how they are administered and whether or not any person/company has the money/time/wherewithal to sue. In other words, we can have laws that are fairly enforced. We can have laws that are unfairly enforced (e.g., suing people for minor infractions). And we can have laws that are no longer enforced. Perhaps we should decide which needs to be addressed first: the laws or the enforcement of them. Sometimes it is a matter of reasonable laws badly executed rather than the laws being inherently unreasonable. And sometimes the problem takes care of itself when we simply ignore old laws.

5. I want to use it because I have a business, but my plan will only work if I can get some or all IP for free or minimal cost.
Average people and most legislators don't care about your business per se. If you can't show voters and lawmakers how your business will help them, then they aren't likely to listen to you. And since you may come into conflict with other businesses that don't want you to have their IP for free or minimal cost, you need to show how these IP holders will benefit from your plan. If you've got a great idea that depends on cooperation from them, you've got to sell it to them. Telling IP holders and legislators that they are stupid for charging you is not the way to win friends and influence people.

6. I want to use all or parts of it, but I don't want to go to the trouble of getting permission.
The way to deal with this is to create easier ways to obtain licensing, so that both IP holders and potential users benefit.

7. I want to use parts of it to include in a critique or to pay homage.
Fair use allows for this already. So if certain uses are currently being prevented but should fall under fair use, then perhaps the fair use concept should be expanded or better defined. However some people argue that they are afraid to test fair use and therefore they self-censor rather than include other people's works within their own. I think this is often more of an education problem than a legal problem. If this can't be settled outside of court, then academic and creative groups may want to set up a fair use fund to cover legal challenges to their members.

8. I want to use it because I know how to make more money from it than they do.
This anti-IP argument is a crowdsourcing construct. People are saying, in essence, "Let the concepts be out in the marketplace and the rewards will flow to those who best execute." But the results may favor those companies and individuals with the most investment resources. On the upside, throwing concepts out into the marketplace may make the concepts most widely available. On the downside, the financial rewards may not be evenly distributed. So citing this as a reason to drop IP protection may be a tough sell to creative individuals and small companies unless there is a way for them to directly benefit from creating the concepts without holding any rights to them. Altruism is nice, but doesn't necessarily pay the bills.

9. I want to use parts or all of it to improve it.
Some people have suggested that IP locks up certain concepts with people/companies who do nothing with those concepts or utilize them badly. Most patents expire in 20 years, so there is already that. However, there is an on-going debate as to whether having to wait 20 years makes sense in these fast moving times. And copyrighted items are tied up even longer.

If it is true we're all being disadvantaged because people can't tweak other people's concepts when they wish, there are at least three possible solutions:

change the IP laws;

have people/companies/organizations decide it isn't worth their resources to enforce IP laws;

or develop new ways to share concepts.

I'm guessing that of the three scenarios, changing the laws will be the last to happen. And if one or both of the other two scenarios happen first, it won't really matter much if the laws aren't changed.

10. I want to use it because society as a whole will benefit.
Some concepts are already freely available to everyone. They are in the public domain. Chances are that if they are currently in the public domain, they will remain so. So let's assume that's not an issue.

That leaves concepts that aren't currently in the public domain or concepts yet to be created that might not be placed in the public domain in the foreseeable future.

I can't see legislators altering protection for concepts currently protected. Telling someone who has complied with the laws that his concepts are now going to become freely available years before he had planned won't go over well. Therefore, let's assume currently protected concepts won't enter into the public domain before their patents or copyrights expire.

But perhaps legislators can be persuaded that IP protection is currently too long and is hurting society. A logical response from them would be to let currently protected concepts live out their days under IP protection, but to shorten or eliminate protection for concepts yet to be released. But I don't think there's enough evidence yet to persuade legislators to go this route. Right now we don't have any side-by-side comparisons to show that countries without IP protection laws have a better quality of life than countries that do have IP protection.

What we are likely to see in the interim are experiments by certain groups of people choosing to make their concepts freely available as they publish them. If there are then demonstrable economic and societal benefits, we may see widespread support for downsizing IP protections. In other words, show the positive results first; then lobby for change of the laws.

Here's a good outline of the potential benefits of having concepts placed in the public domain:

In attempting to map the public domain Pamela Samuelson has identified eight “values” that can arise from information and works in the public domain, though not every idea or work that is in the public domain necessarily has a value. Possible values include:

Building blocks for the creation of new knowledge, examples include data, facts, ideas, theories and scientific principle.

Access to cultural heritage through information resources such as ancient Greek texts and Mozart’s symphonies.

Promoting education, through the spread of information, ideas and scientific principles.

Enabling follow-on innovation, through for example expired patents and copyright.

Enabling low cost access to information without the need to locate the owner or negotiate rights clearance and pay royalties, through for example expired copyrighted works or patents, and non-original data compilation.

Promoting public health and safety, through information and scientific principles.

Promoting the democratic process and values, through news, laws, regulation and judicial opinion.

Enabling competitive imitation, through for example expired patents and copyright, or publicly disclosed technologies that do not qualify for patient protection. "Public domain," Wikipedia.

11. Some concepts are so important to society that they shouldn't be patented.
Rather than trying to eliminate or reduce IP protection for all categories of concepts, perhaps we should focus on those that are too fundamental to be owned by one person/company, or are so important to the future of mankind that they should immediately be made available to everyone (e.g., basic scientific discoveries, new sources of energy, biomedical research). To accomplish this, it may be up to world organizations to set the parameters. However, there are issues which will still need to be addressed:

If certain companies or organizations have invested considerable resources in creating these concepts, will there be ways to compensate them?

Will secret societies be formed to give certain groups knowledge not available to everyone?

Will wars be fought to keep these life-changing concepts within certain groups?

If there is a cost to execute these concepts, who will pay for that? A concept that is publicly available, but can only be utilized at great cost may be less beneficial than a protected concept that can widely reproduced and distributed inexpensively. How do we guarantee equitable use of these freely shared concepts?

So, that's my reaction to some of the IP debate. I'm not for or against, but I do note when justifications one way or the other are poorly presented.

Overall I think IP protection has functioned well in some cases and has been abused in others. On the one hand, I believe a lot of the paperwork and legal maneuvering related to IP could be better spent elsewhere.* But on the other hand, I'm not sure doing away with copyrights and patents will necessarily transform the world anytime soon. For example, poor nutrition and inadequate health care in Africa are not IP issues. The solutions are already in the public domain; they just aren't being distributed.

* For the same reasons -- less paperwork and more efficiencies -- I like the idea of universal health care.

Suzanne Lainson
@slainson on Twitter

UPDATE 10/24/10
Rarely has the case for lessening IP protection been made so that it is relevant to the average person. When we go to vote, IP issues tend not to be a priority.If anything, the emphasis on copyright and music lessens the perceived relevance because most voters don't see that as a major issue in their lives. Here's is an good discussion about how environmentalists were able to transform their concerns into a national issue and what might be learned by those in the IP debates.
"Chapter 10: An Environmentalism for Information." The Public Domain: Enclosing the Commons of the Mind. James Boyle.