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"Intellectual Property": The Lie

[This essay was originally one of three contest entries for the Wipout Contest of 15 MAR 2002. The purpose of the contest was to give people a chance to express views not allowed by the WIPO in its own essay contest. The Wipout Contest organizers put it best:
What is [the Wipout Contest]?

In March 2001, the World Intellectual Property Organisation (WIPO) launched an international student essay competition. Students were asked to submit essays with the title 'What does intellectual Property mean to you in your daily life?'. It is obvious that WIPO are expecting a number of self-congratulatory essays detailing the plentiful benefits of intellectual property (IP). Anyone who writes an essay which says that IP means:
“I can't purchase anti-HIV drugs because of patent law
“as a farmer, I can't get access to patent-protected seeds for planting
“as a teacher, I can't distribute materials to my students due to copyright restrictions
is unlikely to win a prize from WIPO, no matter how well argued or valid their essay was.

If there are enough people who want to write such essays, there should be a place where they can submit them. And so we at Wipout have organised a counter-essay contest. We are using the same title as the WIPO contest, but we encourage slightly more critical responses to the question of how intellectual property affects us all in our daily lives.

What this contest is not.

The organisers of Wipout are not campaigning for the abolition of intellectual property. We appreciate that there would be much less worthwhile IP created without some form of incentive for individuals and corporations. Many of the organising committee are authors and artists themselves and so have some interest in there being some level of IP protection. We are NOT against IP in itself. This essay contest is about the current over-protection of IP. We are strongly opposed to the excessive protection of IP and how it is accorded trumping power over other values and social priorities such as access to medicines, to education, and to the sharing of ideas and information.
This copy of the text may vary slightly from the version submitted for the contest. The original website has been offline since sometime in 2004.]

This essay is supposed to answer the question of what "intellectual property" means to me in my daily life. I did a little bit of thinking about this, and I came to a rather simple conclusion: The term "intellectual property" is one big lie that has been told to me and everyone I know in order to obscure the true nature of the subject under discussion. This subject, ingeniously lumped into the false category of "intellectual property," is actually three distinct but related concepts: patent, copyright, and trademark (hereafter these will be referred to as Creative Incentive Rights).

My argument, therefore, is that everyone I know (and, indeed, everyone who is reading this essay) and I have been told a lie. This lie has been told to make things appear as they are not. This lie has been told to create the illusion that ideas are property as a car or house and as such can be possessed. This is, in fact, not true as many people throughout history including Thomas Jefferson have noted. Ideas are not limited resources that can be used up. Ideas used by one person are not unavailable to other people. The same idea can be "possessed" by an infinite number of people simultaneously without inhibition of use by any of them. These properties of ideas make them completely different from physical entities like cars which, when used by their owners, cannot be used by anyone else. The term "intellectual property" has been created toward an end: to make it appear that ideas are the same as physical property.

"Intellectual property" is therefore a political scheme to justify control over use of ideas for financial gain. As I will soon argue, this subjugates the primary purpose of Creative Incentive Rights, which is the generation of new ideas and inventions for the continuing advancement of arts and sciences, to the secondary, which is financial gain. In other words, the term "intellectual property" creates the appearance that financial gain is the primary reason for the existence of Creative Incentive Rights. The term "intellectual property" creates the appearance that scientific and artistic advancements are not the purpose of Creative Incentive Rights. According to the Constitution of the United States of America, financial gain is not the primary purpose of Creative Incentive Rights. Therefore, in the United States, at the very least, the term "intellectual property" is a deliberate misrepresentation and thus a lie (by just about anyone's definition).

I will be confining the majority of my arguments to the situation of "intellectual property" in the United States of America because the said country's constitution provides a solid philosophical base on which to build my arguments. In addition, as I will soon argue, most modern "intellectual property" law is unconstitutional and therefore a direct violation of my rights as a citizen of the USA.

A Little Philosophy

The concepts of Creative Incentive Rights all stem from one legal act. This act was the Statute of Anne enacted in England in 1710. A very brief summary of this statute was to enact laws for the protection of authors from large publishers. Many publishers had been printing copies books whose authors could not afford to publish on a large scale without the permission of those authors. At that time, publishers could easily take a look at a manuscript copy it and send it back to the author as if it were rejected. The publisher could then turn around and print it with almost no legal recourse available to the author (remember also that writers of that time could not afford to obtain their own legal counsel). Obviously, the author would then make little or no profit from his labor. Because of technology at that time, it was easier for publishers to copy than authors, and understandably, authors needed to be protected from publishers. This then became the first "copyright," stating that only the original author had the right to copy or authorize copies of his work.

This philosophy ended up being written into the Constitution of the USA, although it was stated more broadly:

And Congress shall have Power... To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries; (US Constitution Article 1, Section 8 Item 8)
When reading this Item, it is obvious that the authors of the Constitution intended authors and inventors (who I will hereafter refer to as "creators") to be the beneficiaries of any rights granted by Congress. There is no statement even similar to "by securing for limited times to Representatives of Content Dissemination Industries the exclusive right to claim the profits of Authors and Inventors..." However, various content industry representatives argue as if this were the case. In fact, they seem to believe that it is their right to claim the majority of the profits for the creators of their content. The recording industry is famous for this. They are known for giving recording artists 6% of the profits for their work. Should not artists receive at least 50% of the profits for anything they create?

The second important point about this Item in the Constitution is the phrase "for limited Times." Until the Sonny Bonno Copyright Term Extension Act of 1998, copyright terms were 100 years from publication or 75 years from the death of the creator. Since the Act, they are longer, but how much longer is irrelevant. How is this limited? With respect to the lifespan of the author, it is unlimited. Therefore, all copyright law since 1976 is unconstitutional, and I suppose Sonny Bonno should be charged with treason for his conduct with respect to his employers, the people of the US.

However, there is a bigger issue here. What do dead people need money for? The only reason I can think of is Chinese Folk Religion where the dead need money to get along in the world of the dead. This is certainly not the case for Muslims, Christians, Hindus, Jews, etc. So, I ask again: Why would dead creators need money? Would an increase in the money that dead authors received cause them to resurrect themselves and create more for society? If the dead do not need money, and resurrection is impossible, why do we pay benefits to dead people?

This also leads to another problem. If the children of great creators receive their parents' benefits, what incentive do they have to create? Is this a waist since these same individuals may have inherited their progenitor's creative genes or just learned to create in the same way. Ether way, it appears that society is throwing away potential geniuses for the sake of the middle man (i.e. the Content Industries).

Also, there is a question of purpose. As I stated before, the Statute of Anne was enacted to protect the creator from the content industry, in this case the publishing industry. However, according to Jessica Litman, 20th century copyright law has been essentially written by various special interest groups consisting mostly of Content Industry representatives. It has been used to allow the content industry to defend their monopolies in the name of the creators and claim the rights and profits long after the creator's death. These content providers (who are by the way the same people you get your news and virtually all other information from) have had a long history of propagandizing the rightiousness of their position. They talk about changes in Creative Incentive Rights law as if they would bring about an end to civilization. However, the only real end in sight is an end on their monopolies, an end for the middle man and increased benefits for the creator.

A final point is that the statement "the exclusive Right to [the Creator's] respective Writings and Discoveries" does not mention property. In fact, property is not mentioned in the entire item. As the Constitution of the USA, the very definition for all law in the USA, mind you, does not consider ideas to be property, why is the term "intellectual property" so prevalent in modern speech?

Therefore, there can be no question that the concept of "intellectual property" should be foreign to law in the USA. Copyright terms that exceed the lifespan of the creator are certainly unconstitutional. The concept that ideas can be property is certianly alien to the language of the Constitution, as well. It seems that the content industry has done an excellent job of evangelizing their cause. They have violated the Constitution in the very face of the people of the USA and influenced opinions so that most people willingly defend what they do not understand (it should be pointed out that even copyright lawyers do not fully understand the intricacies of Copyright law in the USA. As an example, my father regularly repeats the propaganda the recording industry representatives used to convince him to sign their contracts. When informed of illegalities that are generally known to be results of the DMCA, he replied, "I don't believe that.").

However, that content was created for the people of the USA. It is currently being held for ransom by the Content Industry. They are trying to bend reality to make people believe that ideas are "property", when they are not. They have made vast fortunes from other people's creations (other people who were underpaid). Now they are using their attorneys as a legal gun to the head of the people of the USA to demand more. Is this going to be allowed to continue?

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