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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]?
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.]
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”
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 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
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.
in fact, not true as many people throughout
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
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
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
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
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
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?