IP: Friend, Foe, or Nonpartisan?

I literally don’t think I can pick whether I agree or disagree with the idea of intellectual property and the laws that currently govern it. Talk about a sticky wicket! I agree with bits and pieces from all sides. Reading Cory Doctorow’s “Information Doesn’t Want to Be Free” has me feeling like I should really disagree with the idea of IP laws, and then add in the readings that are pretty much against it, but I just can’t see that living in a world without IP. If I create something, I want to know that no one can just go and copy it and profit without me getting my due.

I love that we looked at the Wikipedia article on intellectual property, which is the outcome of shared knowledge, shared word choice, shared phrasing, shared ‘intellectual property,’ which has NOT been claimed as such and is instead something others can build on to further knowledge. This is entirely what Wikipedia is all about – sharing, collaborating, innovating, which is something that wouldn’t necessarily thrive if more people claimed or were concerned with intellectual property. I really used to hate Wikipedia, but it would be a travesty for things like it to be forced out by people choosing to get individual gains as opposed to benefitting the collective. Regardless, the Wikipedia article informed me that IP refers to “creations of intellect for which a monopoly is assigned to designate owners by law.” Types of IP include: copyright, patents, ID rights and rights that protect trademarks, trade dress, and some trade secrets. The stated objective of IP is to ultimately promote progress; the thought was that creators wouldn’t have enough of an incentive to create unless they knew they would be able to get something out of their invention (not much looking out for the public good here). Intellectual property rights are ‘intangible property,’ which seems to be one of the real sticking points for discussing IP as the rhetoric used is that used when discussing actual tangible property. The term IP didn’t develop until the 19th century, whereas copyright and patent laws have been established since the 17th/18th centuries.

In the “Case Against IP” video we learned from Adam (of Adam v. The Man) about the twisted logic that is Article 1, Section 8, Clause 8, also known as the Copyright Clause of our US Constitution, also known as the concept of intellectual property. This video hit on the common argument that by an individual securing exclusive rights, it doesn’t promote shared collaboration and innovation and building off one another to constantly improve. The focus shifts from innovation to stopping that innovation. One takeaway I could get behind with this argument was that the internet is a workaround for everything else that is a controlled monopoly today (government, radio, Hollywood). Really, is anyone actually creating any NEW ideas out on the Web? Not so much – we’re building off old ideas. All ideas are the product of those that came before us. I think you would really have to dig deep to actually prove this, but I can believe it speaking pretty generically. I really loved the phrase:

“[We’re building on the] collective shoulders of the giants of human history.”

I think Adam got it right there – but does that really mean there is no room for intellectual property laws to exist in some sense while we continue to build on those collective shoulders? How come IP has to mean the end of that collaboration and progress? Adam goes so far as to say that claiming IP is immoral (which is a little much for me) because it prevents others from improving on your ideas, but here I started to think about Stephan Kinsella’s article “Against Intellectual Property” and his questioning of what really makes ideas our own. Is it because they’re a product of our body, which we think of as our own property? More on this later, but Adam certainly got me thinking about what it means to have our own ideas and if we really are free human beings when we actively participate in our capitalistic democracy (at least here in the USA).

I didn’t realize just how much libertarians specifically took issue with IP until reading Kinsella’s article, where he looked at the various libertarian views on IP rights, with focus on the legitimacy of patent and copyright. Libertarian arguments that are PRO-IP are divided into natural-rights and utilitarian. Natural-rights refers to the belief that creations of the mind are equal to tangible property because they both are the product of one’s labor and one’s mind (17). The utilitarian argument is grounded in the belief that we should have laws that maximize “wealth” or “utility” (18). More innovation = more wealth. On the opposite end of the spectrum, Kinsella says IP laws aren’t really worth it because it’s not clear they lead to any actual change in wealth. Is the patent system a waste of money? Could that money be used to promote innovation in other ways? Not only that, but regarding natural rights, Kinsella points out that IP wouldn’t protect all types of creation – only certain types. How do you draw the line between creation and discovery? It’s ambiguous – which was a problem we saw when trying to define digital literacies. While Adam said no one really creates anything because we build off one another’s ideas and always have, Kinsella says that:

“No one creates matter; they just manipulate and grapple with it according to physical laws. In this sense, no one really creates anything.”

(24)

This is a very literal definition, yet I believe it just as I believed Adam’s statement. We’re always building off each other. But does that mean that NO ONE should receive any kind of incentive or reward for his or her creations? How come Kinsella’s inventor receives a reward for his creative mental effort to produce new and useful ideas, but his theoretical scientist does not (25)? It’s all too arbitrary given our current IP laws. But I hesitate to think that removing ANY rewards is the correct way to go. How can we end up rewarding the theoretical scientist too? Kinsella brings up the idea that everything could be protectable by IP, but I can’t believe this would actually work. How would that not completely stifle innovation if everything is protected? Won’t be end up right back where we were before with zero collaboration and actual innovation? That and we wouldn’t actually be able to function as a society if every single thing you ever did was bound to infringe on someone else’s IP rights.

I like the thought of maybe having more limited IP – like you can gain and be rewarded for your work while you’re still alive, but none of this estate nonsense, 70 years after your death, etc. One really interesting idea I came across that supports rewarding individual creation and intellectual property, yet also contributes to the common wealth and later innovation was the idea that one could become an intellectual property donor. You could slap this sticker on your license and inform everyone that when you die, all of your intellectual property can go to the public domain. I think it’s a very interesting idea – one not quite regulated by any law, but thought-provoking nonetheless. It doesn’t seem to have taken off though, since it was mentioned in 2011 and this was the first time I’ve come across it.

Intellectual property donor sticker So how does one really define IP rights? They can’t include everything, yet they can’t really be so ambiguous. Libertarians are all for tangible goods as subjects for property rights and one reason why is the idea of scarcity. This seemed to be a popular buzzword when trying to really define IP. In Mike Masnick’s rambling “If Intellectual Property is Neither Intellectual, Nor Propoerty, What is it?” he explores why the phrase is so problematic. Yes, it implies that IP is the same as regular, tangible property, but more problematic is the rhetoric that accompanies that. Property rights were created to manage scarce resources, but how can that logic apply to intellectual output? Is there not an infinite abundance of intellectual output? Kinsella says “property rights are not applicable to things of infinite abundance, because there cannot be conflict over such things,” which he goes on to explain with regards to the homesteading rule (which cannot apply to IP). But back to Masnick, he talked about some of the suggested replacement names for IP that include intellectual monopoly (monopolies in tension with our First Amendment rights, anyone?),, intellectual privilege, and imaginary property, but found faults with them all. What we need is a context-specific term, which seems to be the case for everything dealing with the Internet and technology; we need context-specific elements of literacy, context-specific definitions of language, etc. All the Internet is doing is forcing ambiguity to take over! Masnick basically says IP should be used as some kind of umbrella term and we should use the specific terms like patents, copyrights, and trademarks depending on what we’re actually talking about.

Okay, so I’ve come to the conclusion that there are a ton of issues both ways with the concept of intellectual property as it currently stands. As a librarian, I care more about the debate going on than about advocating for one side or the other because neither side is right. It’s more important how these laws are changing and adapting in the digital age. ALA (American Library Association) has some strong opinions on aspects of intellectual property: from their relationship to WIPO to their advocacy section on IP. Copyright is one of the major concern of libraries when it comes to IP, so I’ll save my soapboxing for the blog specifically on copyright. But what I will say is this: IP needs to be adaptable. I don’t believe that IP should be treated as tangible property rights, but do we have the vocabulary to define it otherwise? How do we come up with a new vocabulary? Kinsella said “creation, therefore, is neither necessary nor sufficient to establish ownership,” which is absolutely true. Just because you ‘created’ your idea (whatever that means anyways), doesn’t mean you should own it. But owning something is using that vocabulary for tangible, physical property rights. How can we move away from that? And how can we change something so engrained in our society? As a librarian, I want the creator to get his or her due rights (we support the individuals by purchasing their content), but we want to also support the consumers of that content (the library users). With traditional physical books, the rights have been pretty clear-cut, but this move towards digital is really complicating those rules. I promise I’ll get into this much more in later discussions, but I think I’ve babbled on long enough. I’ll end with this:

“He who receives an idea from me, receives instruction himself without lessening mine; as he who lights his taper at mine, receives light without darkening me.” – Thomas Jefferson

We need some kind of IP – it’s not fair to the creators to sacrifice their time and efforts for the sake of ‘innovation’ or the common wealth. I get paid to do my job, why shouldn’t a composer or writer get paid for the work they did when it’s used outside of their original publication? What we don’t need is a world where individual gains prevent societal gains in the forms of collaboration, innovation, and progress. This has been a sticky issue and I believe the digital age and the Internet are only making it stickier. Let’s find a way to take TJ’s quote to heart and create an accessible, context-specific, practical definition of IP.

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