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The Competitiveness of Nations in a Global Knowledge-Based Economy
The Political Economics of the Public Domain Harry Hillman Chartrand Presented to the Political Studies Student Association |
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Epithet … intellectual property is, after all, the only absolute possession in the world... The man who brings out of nothingness some child of his thought has rights therein which cannot belong to any other sort
of property Zechariah Chaffe
“Reflections on the Law of Copyright” ,
Abstract The Communist Revolution failed; the previous Republican Revolution triumphed. The revolution of the individual that overturned an ancient regime of subordination by birth buried a revolution of class consciousness. The Communist Revolution was a 75 year detour off a 500 year Republican freeway towards increasing individuation of the individual. The American and French Revolutions, however, were betrayed. The first restricted the Person to ‘pale penis people’. The second practiced self-righteous revolutionary terror. There were others including that a body corporate or ‘legal person’ enjoys the same rights as a natural Person and ‘the myth of the creator’. These threaten ‘freedom of the press’, ‘freedom of expression’ and ‘freedom of information’. Ideological evolution must proceed from the root not betrayal of the Revolution. I examine the nature of knowledge; narrate ‘the myth of the creator’; examine the private domain of intellectual property rights; consider the public domain, the intended beneficiary of IPRs; assess the political economics of the public domain; and, consider the counter-revolution or “second enclosure movement” offering suggestions how to defend, extend and expand our information democracy.
1.01 In his
1.02 The Communist Revolution, in practice,
failed. The previous revolution, the Republican Revolution,
survives. A world divided and threatened with thermonuclear winter for
almost half a century now rallies around the last ideology standing – market
economics with its political and legal corollaries: popular democracy and private
property. This is not, however, the end
of ideology ( 1.03 In a way, the Republican Revolution sought political freedom for the individual spawning the self-regulating market as its economic corollary. The Communist Revolution, on the other hand, sought economic freedom for the individual (each according to one’s need) through a centrally controlled Marxist command economy spawning the one-party Leninist state as its political corollary. Arguably both forms of freedom – political and economic - are needed to realize full human potential.
1.04 Nonetheless, today, with the exception
of 1.05 The word ‘ideology’ has many meanings today (Gerring 1997) but was coined simply enough by Condillac, a contemporary of Adam Smith (1776), to mean ‘the science of ideas’ (OED, ideology, 1a). Separation of Church and State was critical to both American and French Republican Revolutions. Creation of a secular ‘science of ideas’, to counter the awe and mystery of religious and metaphysical thought and ritual, was part of a revolutionary agenda designed to overthrow an Ancient Regime of subordination by birth. 1.06 In the simplest terms, the Republican Revolution was about the individual, the natural Person, as foundation of society, not bloodline. It found political expression as ‘We, the People’. It found economic expression as laissez faire (let them make what they want) and laissez passer (let them work where they want) (Rothschild 2001). In this light, the Communist Revolution, based on class rather than the individual, was a seventy-five year detour off what is a five hundred year Republican freeway towards the increasing ‘individuation’ of the individual.
1.07 Adam Smith published his Wealth of Nations just as the Republican
revolution in
1.08 This view of the individual as
foundation stone of political life was shared by Adam Smith and is consonant
with his view of the individual as the basis of economic life. In his
day, however, there was only one life. Politics and economics were incestuously
entangled - political power converted to economic profit and profit to
political power. A regime of privilege in the form of feudal corporations
including the Church, guilds, towns and trading corporations was, to Smith, a
fundamental impediment to the wealth of nations because it inhibited the
individual’s vigorous pursuit of self-interest rather than submissively serving
the interests of a lord, lady or other superior born above stairs. Today, this is called the ‘problem of
agency’. 1.09 The individuation of the Person is also mirrored in the Standard Model of economics, alternatively known as the Marshallian, Neoclassical or Perfect Competition model. In production, it is called ‘the division and specialization of labour’, i.e., of the individual as worker. In consumption, it is called ‘consumer sovereignty’, i.e., of the individual as consumer of whom it is said “De Gustibus Non Est Disputandum”, i.e., taste is not disputable (Stigler & Becker 1977). Among economists, this is sometimes called ‘dollar democracy’, voting with dollars in the marketplace rather than ballots at the polls. Put another way, popular democracy and the self-regulating market are the right and left hands of a Republican Revolution that changed the world. 1.10 The natural Person is, however, also the fountainhead of new knowledge and the matrix in which, ultimately, all knowledge resides (Polanyi 1962a). This connexion between the Person and knowledge is the root of the emerging knowledge-based economy. It is also the source of fundamental Republican freedoms like freedom of expression, of the press and of information that, collectively, constitute our ‘information democracy’. It is the evolving relationship between the Person, knowledge and democracy as well as the growing disconnect between a knowledge-based economy invoking monetarization of information and the public domain of our information democracy that is the subject of this paper. 1.11 First, I will summarize the nature of knowledge – biological, technological, ideological and formal. Second, I will trace the ascent of the individual natural Person in a narrative called: ‘The Myth of the Creator’. Third, I will examine the private domain of knowledge, enframed and enabled by intellectual property rights (IPRs). Fourth, I will consider growth of the public domain of knowledge which is the objective of IPRs. Fifth, I will assess the political economics of the public domain where, once again, political power is being converted into profit and profit into political power. Finally, I will conclude with thoughts about a de facto counter-revolution called “the second enclosure movement” by Boyle (2003) and how we might defend and extend the public domain and expand information democracy.
2.01 In theoretical biology there are three
spheres of knowledge: the geosphere, biosphere and noösphere. The geosphere is that part of the world
inhabited by inanimate matter and energy.
Since the initial Scientific Revolution of the 17th century, knowledge
about the geosphere has been effectively acquired through physics and inorganic
chemistry using material and efficient cause, the ‘when-then’ (Grene & Depew 2000) or ‘billiard ball’ causality of
experimental instrumental science. Since the time of Immanuel Kant, a
contemporary of Adam Smith, knowledge about the biosphere – that part of the
world inhabited by living things - has less effectively been acquired through a
biology based upon formal and final cause, or what Kant called the ‘natural
purpose’ of living things. Since
2.02 The noösphere, on the other hand, is that part of the world inhabited by human thought, law and ideology. Knowledge about it has been acquired using varying combinations of all four causes - material, efficient, formal and final – arguably with limited success reflecting that the object of investigation, humanity, is also its subject. What links the spheres and causes together into one world is homo sapiens (literally the ‘wise earth’). This is a species, like all others, struggling to earn a living in a changing, hostile environment. Unlike other species, however, it knows that it does so.
2.03 Following Grene
& Depew (2004), every organism lives in an active environment enframed by
invariants and filled with affordances. All
knowledge is orientation relative to environmental constants a.k.a. invariants, and to opportunities
and threats, a.k.a. affordances. Following Polanyi
(Oct. 1962), knowledge is acquired by an organism through the tacit conjunction
of subsidiary knowledge of invariants and focal knowledge of affordances. Following Heidegger (1955), adaptation of an
organism includes not just adaptation to,
but also adaptation of the
environment creating ‘artificial’ invariants to enframe and enable
it as a standing reserve, ready at hand to serve an organism’s purpose, e.g., an anthill, beaver lodge or
beehive. Adaptation of the environment by homo sapiens is called
‘technology’. 2.04 In the noösphere itself, ideology acts like technology but on a higher, more abstract plane. It enframes and enables us but instead of matter and energy it enframes human thought – scientific, religious, economic, legal, political, et al. It makes ready at hand pathways of communication between minds. And in that part of the noösphere concerned with the production and consumption of goods and services, what Kauffman (2000) calls the ‘econosphere’ or the economy, knowledge takes three interrelated forms: personal & tacit, codified and tooled knowledge. 2.05 Personal & tacit knowledge is fixed in the neuronal bundles of the human brain as memories and in human muscle & nerve as reflexes. Codified knowledge is fixed in a non-utilitarian extra-somatic matrix carrying semiotic meaning to another human mind distant in time and/or space. Tooled knowledge is knowledge as function fixed in a utilitarian extra-somatic matrix. 2.06 These three forms, in turn, become economic inputs in the production process. Codified & tooled capital is knowledge fixed or frozen in an extra-somatic matrix, e.g., an operating manual and its associated power tool. Such knowledge is fixed into matter at a specific time displaying its vintage. Personal & tacit labour is knowledge embodied in the natural Person who ultimately must decode and activate codified and tooled knowledge fixed or frozen in the operating manual and power tool. Toolable natural resources are parts of the environment – geosphere and biosphere– that can be tooled to serve some human purpose, i.e., become subject to technology and enframed and enable to serve human propose. 2.07 Personal & tacit, codified and tooled knowledge become final outputs of the economic process as the Person, Code and/or Tool. Ultimately, however, all knowledge is personal & tacit with codified knowledge acquiring meaning and tooled knowledge acquiring function only through the mediation of a natural Person. This is why Michael Polanyi entitled his masterwork: Personal Knowledge: Towards a Post-Critical Philosophy (1962a) 3.01 In pre-literate societies, knowledge was transmitted orally through the mnemonics of ritual and chant reinforced by religious practice and taboo. Some knowledge was shared by all; some was shared in secret only with initiates (Eliade 1954). The association of rhythmic or repetitively patterned utterances with supernatural knowledge endures well into historical times. For example, among the early Arabic peoples, the word for poet was sha’ir, “the knower”, a person endowed with knowledge by the spirits (Jaynes 1978). Innovation, i.e., application of new knowledge, depended upon the initial insight or invention of a creator plus the ability to maintain mnemonic integrity through time, e.g., as incantation or epic poem. Cause and effect were indistinguishable. It was through unchanging re-enactment of ritual that desired results were achieved. Science and art were one. How to make something and the thing made were mystically married. Process and product were identical. To name a thing was to magically control a thing.
3.02 In such societies, awe and mystery
surround the created object into which the creator projects his or her spirit
and soul. In
3.03 In the ancient West and Islamic world (Habib 1998), knowledge was kept
secret or, when made public, its paternity was protected by moral rather than
legal rights (Chartrand April 2000).
Ownership, in an economic sense, did not exist per se. Punishment for
falsely claiming paternity, or what today would be copyright or patent
infringement, invoked defamation of the infringer and shame on family and tribe.
3.04 After the fall of 3.05 With the arrival of the ‘Renaissance Man’ in the 15th century, i.e., the artist/engineer/humanist/scientist, there began a distinct Western ‘Cult of the Genius’ (Zilsel 1918; Kristeller 1952, 510; Woodmansee 1984). Genius demonstrates the god-like power of creating ex nihilo, ‘out of nothing’ (Nahm 1947). These Renaissance giants, however, were also of humble birth (born below stairs) yet achieved noble ends – new knowledge, new creations – and, unlike their medieval predecessors, they signed their names to their works. This marked the first eruption of the individual Person out of feudal subordination by birth. 3.06 In the 16th century, the Protestant Reformation recognized the individual’s direct link, through prayer, to a personal God rather than requiring intercession by Church, Pope, saint or priest. In the 17th century, the experimental or natural philosopher joined the pantheon of Western genius. As with the Renaissance painter who gave us a new way of seeing the world, representation through geometric perspective, this new philosopher changed the way we see the world and each other. The simple household thermostat is an example. Prior to its invention what was hot for me but cold for you was determined hierarchically. With the thermostat, however, whether king, pope, priest or philosopher, it is 20 degrees Celsius. Two centuries later, this metaphysical success led the poet Coleridge to ask the philosopher of science, William Whewell, to rename natural or ‘experimental’ philosophers. In 1833, he did so, coining the term ‘scientist’ (Snyder 2000). 3.07 In the 18th century, the author also joined the cult (Woodmansee 1984) contributing a flood of new knowledge igniting the “Querelle des Anciens et des Modernes”, i.e., the battle of the Ancients and the Moderns, marking the opening of the 18th century European Enlightenment (Kristeller 1952, 19). Who are superior, the Ancients or the Moderns? The answer: the Moderns.
3.08 By the end of the 18th century the
Republican Revolution shattered feudal subordination, at least in the West, declaring
all men equal. Adam Smith lived to see the second republican
revolution, in
3.09 In the 19th, the inventive genius of
Watt was followed by 3.10 Out of this Cult of the Genius emerged what I call the Myth of the Creator (Chartrand Fall 2000) eloquently expressed by Zechariah Chafee: …
intellectual property is, after all, the only absolute
possession in the world... The man who
brings out of nothingness some child of his thought has rights therein which
cannot belong to any other sort of property. (Chaffee 1945) Creation of new knowledge in all domains - the natural & engineering sciences, the humanities & social sciences and the Arts – became a public good to be fostered and encouraged so that all humanity might benefit from the creativity of genius. 3.11 Like most myths this one contains some elements of truth. Thus, in the European Civil Code tradition, the myth is reflected in moral rights of creators that are “inalienable, unattachable, impresciptible and unrenounceable” (Article 11, Decision 351, Andean Community, 1993). Such rights echo back to ancient animism and are self-evident under the principles of ‘natural law’ (Taylor 1929, 1930), the root of the Civil Code. 3.12 However, unlike the Civil Code, Anglo-American Common Law, and its associated IPRs, is rooted in precedent rather than principle. The result is that: the complex body of law,
judicial interpretation, and administrative practice that one has to grapple
with in the area of intellectual property rights has not been created by any
rational, consistent, social welfare-maximizing public agency.” (David 1992)
4.01 While this complex patchwork of legal rights defines ‘the private domain of knowledge’ in the Anglosphere (Bennett 2000), the very complexity of its organic juridical evolution is one reason why there has been very limited empirical economic analysis of IPRs (Besen & Raskind 1991, 4). Nonetheless, economic theory rationalizes IPRs as a response to market failure, i.e., when market price fails to internalize all benefits and costs of consumption and production, e.g., when market price does not include pollution costs. These are known as external costs and benefits, i.e., external to market price. IPRs, in this view, are created by the State as a protection of, and incentive to, the production of new knowledge which otherwise could be used freely by others (the free-rider problem). In return, the State expects creators to make new knowledge available and that a market will be created in which such knowledge can be bought and sold. But while the State wishes to encourage creativity, it does not want to foster harmful market power. Accordingly, it limits such rights in time and space. They are granted, e.g., a patent, only with full disclosure of the new knowledge; only for a fixed period of time; and,, only for the fixation of new knowledge in a material form or matrix, i.e., it is not ideas but their expression fixed in a matrix that receives protection. 4.02 All intellectual property (all knowledge) therefore eventually enters the public domain where it may be used by anyone without charge or limitation. Even while IPRs are in force, however, there are exceptions such as ‘fair use’ or ‘fair dealing’ under copyright. Similarly, national statutes and international conventions permit some research using patented products and processes. A Nation-State also retains authority to waive IPRs in “situations of national emergency or other circumstances of extreme urgency” (WTO/TRIPS 1994, Article 31b), e.g., following the anthrax terrorist attacks in 2001 the U.S. government threatened to revoke Bayer’s pharmaceutical patent on the drug Cipro (BBC News October 24, 2001). 4.03 Nonetheless, the legal foundation of contemporary IPRs is that an idea, a.k.a. knowledge, is not protected but rather its expression fixed in a material form. I will now examine the matrix and then consider major IPRs – copyrights & trademarks, patents & industrial designs, know-how & trade secrets - which define our ‘rights to know’ in the private domain of knowledge. 4.04 A matrix is a “supporting or enclosing structure” (OED matrix, n I). Traditionally, a legal matrix is tangible and perceptible meaning it can be seen, touched or otherwise perceived by a human being and has some permanence. Finally, the expression so fixed must be original (copyright) or not obvious to one normally ‘skilled in the art’ (patents). But why are ideas not protected? 4.05 Justice Yates, in his dissenting opinion in the 1769 case of Millar v. Taylor, laid out the legal argument. Drawing on the Institutes of Justinian (one of the sources of the Civil Code), he argued that ideas are not the object of property rights because they are like wild animals or ferae naturae that once set free belong to no one and everyone at the same time. It is only their specific expression fixed in material form – commonly known as a work – that qualifies for protection (Sedgwick 1879).
4.06 What constitutes a matrix is
problematic. Examples drawn from the
recent history of copyright in
4.07 4.08 With respect to software patents, the Patent Office traditionally resisted patentability because computer programs were considered mathematical algorithms, not processes or machines. In its 1981 decision in Diamond v. Diehr, the Supreme Court ordered the Office to grant a patent even though computer software was involved. The Court found the program was not just a mathematical algorithm but rather a process, specifically for molding rubber. By requiring that an invention be examined as a whole and the court found that an invention using a computer to manipulate numbers representing concrete or real world phenomenon is a process relating to tangible material forms and is patentable (Tysver 1998).
4.09 As demonstrated, a matrix originally
needed to be perceptible, particularly by sight. The law, being inherently conservative,
concluded that if the matrix was not perceptible then it was not possible to
assess other requirements for protection, e.g.,
originality, non-obviousness, usefulness, etc. Thus ephemeral displays on computer screens
prior to 1988 received no protection in 4.10 In effect, over time, instrumentation extending the human senses and grasp of the material world has been accepted by the Courts. The implication is that there is no microscopic (or macroscopic) limit to intellectual property rights fixed in material form, only a technical one. 4.11 Essentially a matrix has one of three functions – utilitarian, non-utilitarian or personal. A utilitarian matrix corresponds to what I call a ‘Tool’ and is protected by patents & industrial designs; a non-utilitarian matrix corresponds to ‘Code’ and is protected by copyright & trademarks while a personal matrix corresponds to a Person (legal or natural) and is protected by know-how & trade secrets. 4.12 While the matrix can be used to order intellectual property rights into generic categories – utilitarian, non-utilitarian and personal - the nature, scope and composition of each IPR is different. Each provides the legal foundation for a distinctive industrial organization based on commercial exploitation of new knowledge. Furthermore, each consists of a distinct and differing bundle of rights defining what forms of knowledge can be bought and sold, where it may be marketed, under what terms and conditions, and for how long such rights are enforceable before new knowledge enters the public domain. 4.13 In what follows I will summarize the Anglosphere history of the six primary IPRs. These are presented in groups of two based on a common matrix – designs & patents (utilitarian), copyrights & trademarks (non-utilitarian), and know-how & trade secrets (personal). Only passing reference is made to Civil Code practice. An additional class of IPRs is also discussed, sui generis or one-of-a-kind rights. 4.14 There are, however, three general characteristics of the Anglosphere tradition colouring these histories. The first concerns the origins of the Common Law of business. The second involves the relationship of natural and legal persons. The third involves the evolving definition of property itself, i.e., what can be bought and sold. 4.15 First, after the Statute of Monopolies of 1624 development of the Common Law was a process whereby the courts converted the customary bargains and business practices of guilds and corporations into a common law of property and liberty (Commons 1924, 229). However, while “the monopoly, the closed shop, and the private jurisdiction were gone … the economics and ethics remained” (Commons 1924, 230). 4.16 Second, a natural person is a living human being; a legal person is a body corporate. The vast bulk of productive assets are owned by fictitious legal persons such as corporations, companies, sociétés, Gesellschaften. Such persons are birthed under incorporation statutes that allow them to engage in a wide variety of profit making and charitable activities. In the Anglosphere, however, legal and natural persons have enjoyed the same rights since the late 19th century; under the Civil Code, however, they enjoy different rights. It is with respect to knowledge that this difference is most apparent. Thus Civil Code moral rights of creators, i.e., natural persons, are justified because their work bears the “imprint of personality” that a body corporate does not possess (Geller 1994). To repeat myself, in this tradition such rights are “inalienable, unattachable, impresciptible and unrenounceable” (Article 11, Decision 351, Andean Community, 1993). 4.17 Third, there is an important historical connexion between intellectual property rights and the modern definition of business property. This involves evolution of property as ‘things’ – moveable or immovable – towards property as the intangible expectation of earning profit. Two years before publication of the Wealth of Nations a momentous legal decision about knowledge and property was reached in 1774 by the Law Lords of England in the case of Donaldson v. Beckett. The question was: Does an author have a natural and perpetual copyright? The answer was no (Chartrand Fall 2000). Beyond copyright, however, it contributed, according to John R. Commons, to our modern definition of property because: The transition from concepts of physical things to concepts of business assets, could not be fully completed until the idea of ownership was shifted from the holding of physical things to the expectations of profit from the transactions of business. (Commons 1924, 275) From this shift new legal and economically valuable business rights emerged including ‘good will’. This trend may be approaching its apogee in the knowledge-based economy.
Copyrights & Trademarks 4.18 Copyrights and trademarks use a non-utilitarian extra-somatic matrix to encode knowledge in a material form called a ‘communications medium’. Media takes many forms including paper hardcopy and electronic softcopy. It all cases, however, it is intended to be read or decoded by a natural person thereby becoming personal & tacit to that reader.
4.19 Copyrights are rights traditionally
granted to creators of visual and literary works of art. They have, however, been extended over time. They
are granted to natural and legal persons.
When granted to a natural person it endures for the life of the
artist/creator plus a fixed number of years, e.g., in 4.20 Until the 1980s, copyright was, in all Anglosphere countries, restricted to ‘works of art’. With introduction of software copyright, however, utilitarian ‘machine-readable’ works received copyright protection for the first but probably not the last time. While I disagree with this development I cannot pursue my reasoning at this time. 4.21 Two
additional observations are in order. First, the first patent provision in the 4.22 Second, there is the question of works by employees.
Under Anglosphere copyright all works created by an employee are, unless by
contract stated otherwise, the property of the employer. The employee cannot even claim paternity to
his or her work. This is not the case
under the Civil Code where paternity of the employee is preserved. In the case of patents, any invention created
during company time by an employee is, by contract, automatically licensed to
the employer but the patent application must be filed in the name of the
employee responsible, i.e., paternity
is maintained. This is the case in both
the Anglosphere and Civil Code countries. 4.23 In the constitutional monarchies of the
4.24 There is, however, one prominent Anglosphere exception to
employer copyright: the university.
Following the tradition of academic freedom, copyright to works by
professors is, by contract, theirs and theirs alone. This exception has, arguably, resulted in the
separation of the financial and career interests of scholars from that of their
host institutions. Multinational communications conglomerates have, in
effect, filled the gap between the two. Four or five global firms now control
copyright for the world’s most prestigious scientific journals written by
academics employed by universities and colleges who often pay ‘page fees’ to
have their works published. In turn, their
employers – the universities - now pay escalating library subscription fees for
works authored by their employees. This
has resulted in a shrinking supply of periodical publications for students in
all knowledge domains (The Economist, 4.25 Trademarks (and marks of origin) are devices such as a word, logo or other mark pointing to the origin or ownership of a good or service that is reserved for the exclusive use of its owner as maker or seller. Today, its application has, de facto, been extended to ‘domain names’ on the internet or world-wide web. The World Intellectual Property Organization (WIPO) has thus established dispute settlement mechanisms to resolve ‘cyber squatting’, i.e. registering a domain name using the name or trademark of an established business enterprise or celebrity, e.g. Julie Roberts, with the intention of selling that registration to its recognized trademark holder for a profit. At the international level, however, only the Common Industrial Property Regime of the Andean Community of 2000 makes explicit reference to web domain names (Chartrand 2001).
4.26 The word ‘trademark’ entered the
English language in 1838 (OED, trademark,
n, a). Functionally, however, it can be
traced back to ancient times and in 4.27 Registration and the payment of fees are required. A trademark is granted only for new marks so as not to confuse the public. It is available to both natural and legal persons. And, unlike other forms of IPRs, trademarks can be renewed, potentially in perpetuity. 4.28 While copyrights and trademarks share a non-utilitarian matrix they belong to two fundamentally different classes of rights. The overtly commercial nature of industrial designs, patents and trademarks place them in a distinct legal category called ‘industrial property’, subject of the first international intellectual property rights convention, the Paris Convention for the Protection of Industrial Property of 1883 (Chartrand 2001). The ‘artistic’, ‘personal’ or ‘semiotic’ nature of copyright, by contrast, rooted in the European Civil Code tradition, is recognized in a separate set of international conventions beginning with the Berne Convention for the Protection of Literary and Artistic Works of 1886 (Chartrand 1998). The difference was summed up by Keyes and Brunet:
Though copyright is expressed in terms of property, it
is not directly analogous to industrial property (patents, trademarks and
industrial designs), where the major concern is with the circulation of goods
that have economic value apart from their intellectual content. As it deals with purely intellectual matter,
copyright can never interfere with a person’s physical well-being. (Keyes & Brunet 1977, 3)
Designs & Patents 4.29 Designs and patents use a utilitarian matrix to embed or tool knowledge into a tangible material and functioning form. Knowledge for design comes mainly from the Arts; for patents, mainly from the natural & engineering sciences. 4.30 Industrial design involves the arrangement of elements or details that contribute a distinctive aesthetic appearance rather than a function to a good. In this sense there is a relationship between copyright protecting a work of art and industrial design. Both involve aesthetics but in the case of a copyright the aesthetic element is fixed in a matrix that has no utilitarian value. By contrast the aesthetic element of industrial design is fixed in a utilitarian matrix, e.g., a coffee cup without a design retains its function. In addition, an original work of art tends to be unique while an industrial design is usually produced in large numbers. This last distinction, however, is of diminishing significance with the maturation of the Media Arts as a distinctive artistic discipline.
4.31 Industrial design protection can be
obtained by both natural and legal persons. Industrial design emerges from the Arts. It is important to note, however, that
industrial design evolved from copyright in the
4.32 The first design-related legislation in
4.33 With respect to patents, since the 15th
century governments in the West have granted legal protection, enforced by the
coercive powers of the State, to those who create or make available new and
useful knowledge to that State. This
reflected the emergence of the Renaissance artist/engineer/humanist to genius
status. At first import patents were
granted to foreigners bringing new working knowledge to the kingdom (David 2001, 7). The
first known English patent was granted by Henry VI to Flemish-born John of Utynam in 1449 for a method of making stained glass not
previously known in 4.34 Patents are granted for new and useful compositions of matter (e.g., chemical compounds, foods, and medicinal products), machines, manufactured products and industrial processes as well as to improvements to existing ones. In some jurisdictions, patents can also be granted to new plant and animal forms developed through genetic engineering. This includes asexually propagating plants, e.g., using cuttings. Patents, unlike industrial design, emerge from the natural & engineering sciences rather than the Arts.
4.35 Through case law and amendment,
4.36 A description
must be deposited, in writing and drawings, sufficiently detailed to allow one
of ordinary skill in the art to replicate the invention. This insures that new knowledge enters the
public domain while the rights of the inventor are protected. In the case of
microorganisms, description can take the form of a deposit of a sample with an
authorized depository. Patent protection is for a fixed period of time (in the 4.37 The term ‘patent’ entered the English language in the 14th century. Patents for invention were originally just one form of monopoly granted by the British Crown. Such grants were signified by Letters Patent, i.e., open letters, marked with the King’s Great Seal.
4.38 By the time of James I, abuse of the
monopoly system had become so great that Parliament enacted the Statute of Monopolies d in 1624. It made all patent monopolies illegal except for
“any manner of new manufactures within this Realm to the true and first
inventor”. Furthermore, such monopolies could
not be “contrary to the law nor mischievous to the State by raising prices of
commodities at home or hurt of trade”.
For some 200 years the patent system in
4.39 The first
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.
Know-How & Trade Secrets 4.40 Know-how and trade secrets use a person – natural or legal - to embed knowledge in material form. Secrecy is used to protect both types and in most countries there is no formal statute. Trade secrets and know-how are the least formalized of all intellectual property rights. 4.41 The term “know-how” entered the English language in 1838 (OED, know-how). It refers literally to knowing how to do something, e.g., how to run a construction project. It includes knowledge and experience of an administrative, commercial, financial or technical nature used in running a business or performing a profession. It is experiential in nature, i.e., it is acquired through practice and experience. It also tends to be ‘personal & tacit’ rather than ‘codified’ and embodied in an individual rather than in an external matrix. In most countries, know-how is protected by contract binding employees and other agents to confidentiality. When a natural or legal person (including a government) discovers that know-how has been revealed by an agent without permission, legal recourse is available through breach of contract before the courts. No registration is required. Know-how can be protected without time limit. 4.42 Trade secrets involve information of a technical or commercial nature that is not in the public domain nor generally available. It may be a formula, pattern, physical device, idea, process, compilation of information or other information that provides a competitive advantage in the marketplace. It is generally protected by contracts that bind employees and other agents to confidentiality. Normally the courts require that a trade secret be treated by its owner in such a manner that it can reasonably be expected to prevent the public or competitors from learning about it except by improper acquisition or theft. In the case of electronic data this includes using encryption and “password” technologies. The most famous trade secret is the formula for Coca-Cola. A trade secret may be embodied in written or other codified form or it may be personal & tacit in a natural person. No registration is required. There is no time limit as long as it remains secret.
4.43 While know-how and trade secrets are
often used as synonyms they need not be so. In the case of management and
franchises, for example, know-how is usually accessible to third parties when
being used. Single elements may be kept
secret but the overall concept cannot be.
Where in a nation’s judicial hierarchy infringement of trade secrets or
know-how may be heard varies, e.g.,
in the Sui Generis Rights 4.44 Sui generis in Latin means “of its own kind”. There are a number of recognized sui generis property rights. The United States, in particular, has made extensive use of such rights including: breeders’ rights for lines of plants and animals generated using pre-genomic selective breeding technology; a special depository right for microorganisms in lieu of traditional patent requirements of a written description and drawings; special rights for visual artists of recognized stature; special rights for architectural works; and, special rights for integrated circuit typographies, the so-called ‘Chip Protection Act’. The European Commission’s Directive on the Legal Protection of Databases is another example of: a new form of copyright in databases, one that extends
to contents previously in the public domain and otherwise not copyrightable. It narrowly restricted the application of the
principle of allowing exclusions for “fair use” in research, and it permitted
virtually indefinite renewal of copyright protection for databases without
requiring the substantial addition of new and original content.” (David 2000, 6) 4.45 It can be anticipated that many new sui generis rights will emerge as nations compete by combining different elements drawn from their own traditions governing copyright, designs, patents, trademarks, trade secrets & know-how. The only constraint under the WTO and other international trade rules is national treatment. This concludes our brief historical survey of the private domain of knowledge.
5.01 In a sense the public domain is an
unexplored country whose borders can be outlined but whose interior remains
unknown, unexplored and uncharted. Thus
James Boyle notes that the 2001 5.02 For the competitiveness of nations in a global knowledge-based economy, such ignorance cannot continue. To cure it, however, requires looking at the public domain from a number of different perspectives and interpreting findings as symbolic of a more numinous meaning (Neumann 1954, 7). Put another way: “A definition can be but one of many definitions, each surely a function of perspective and agenda” (Lange 2004, 463). At this time, I will examine the public domain as: · economic commons; · legal principle and precedent, and, · constitutional & cultural history. 5.03 Like technological change in economics, the public domain is, in law, treated as a residuum. Thus in economics after the contribution of changes in capital, labour and natural resources to growth has been calculated, the residual is called ‘technological change’. In law, after new knowledge has been ‘privatized’ as intellectual property, what remains is the public domain (David 2000, 15). In this sense, the public domain is the opposite of property (Boyle 2004a). 5.04 Extending the parallel, the public domain is where knowledge is at home as a public good, i.e., non-excludable and non-rivalrous, acting like disembodied exogenous technological change. Everyone has the right to know; it falls from heaven like manna (Scherer 1971, 347). Knowledge covered by intellectual property rights, on the other hand, is rivalrous and excludable by law, if not by nature. It is embodied (fixed) in a work of aesthetic or technological intelligence that is the possession of its creator (or, more usually a corporate proprietor) who determines access and application. To put it another way, where intellectual property rights privatizes or encloses new knowledge (Boyle 2004b) and limits access through price and other mechanisms, knowledge in the public domain is free to all without cost or restriction. 5.05 The public domain is a knowledge commons (David 2000). In general, an economic commons is a natural resource shared by all but owned by none. Problems of over-use and depletion of common resources, e.g., fish in the seas beyond the territorial limits of any Nation-State, has been called the “tragedy of the commons” (Hardin 1968). Mainstream economics recommends creation of property rights, i.e., privatize ownership of the resource to guarantee its survival through the operation of self-interest on the part of its new owner or owners (e.g., Demsetz 1967). 5.06 This argument finds expression in the encouragement of new knowledge through intellectual property rights that, in effect, privatize new knowledge. The rational is that given the public goods nature of knowledge, a producer cannot capture revenues to cover cost, let alone earn profits, in the absence of such protection. The resulting monopoly, e.g., copyrights and patents, can be justified, however, by full public disclosure of new knowledge, e.g., through full patent application disclosure or publication and its eventual total absorption into the public domain. Society benefits because expansion of the public domain enriches the knowledge base of everyone who wants to know, i.e., learning. 5.07 The public domain, however, is unlike any natural resource commons. Most obviously, the public domain is artificial - it is human-made. And, as Herbert Simons stresses, there is a need for a clear epistemological distinction between the sciences of nature and “the sciences of the artificial” (quoting Simons Layton 1988, 91). Similarly, a clear distinction must be made between the economics of the public domain of knowledge and of natural resources. 5.08 In many ways the public domain is the inverse of a natural resource commons. First, use of the public domain does not reduce the quantity of resources available to others. Second, in its normal state the public domain grows and will continue to grow until the collapse of human civilization in its contemporary incarnation. Such growth may be slowed by IPRs and other impediments but the biological need to know insures growth of the public domain. Third, while there can be no subtractions from the public domain through use, additions are not simply additive. Rather, additions combine with existing knowledge mutating and generating yet more new knowledge. Or, in terms of Isaac Newton’s famous aphorism: “If I have seen further it is by standing on the shoulders of Giants.” The public domain is not a domain of scarcity but of fertile abundance. In this sense the public domain, unlike any natural resources commons, also exhibits increasing returns to scale.
5.09 Paul David has observed that intellectual
property rights have not been created “by
any rational, consistent, social welfare-maximizing public agency” (David 1992). The resulting IPR regime he characterizes as ‘a
Panda’s thumb’, i.e., “a striking
example of evolutionary improvisation yielding an appendage that is inelegant
yet serviceable” (David 1992). In the case of the public domain, he observes
that “what it contains is not defined and legal ‘rights’ to its use are
not delineated” (David 2000, 15). This legal lacunae is
the result, I argue, of an inherent clash between the public domain as a legal
principle and legal precedent. 5.10 The term ‘public domain’ entered “Anglo-American copyright discourse through the French of the Berne Convention” in 1886 (M. Rose 2003, 84). The public domain is thus rooted in the European Civil Code based on principle rather than precedent. In turn, the Civil Code draws heavily on the old Roman law especially the Institutes of Justinian from which Justice Yates argued that ideas are like wild animals belonging to everyone and no one. Observing the relative lack of interest in the concept of common property over the last three hundred years of Anglosphere legal tradition, Carol Rose has tried to revivify Roman concepts of public property lacking in the English-speaking tradition. In effect, she concludes that the evolution of Anglosphere law has been dominated by questions of private, not public property (C. Rose 2004). 5.11 There are five categories of public property under Roman law: res nullius, res communes, res publicae, res universatitis and res divini juris. To begin, the Latin word res means ‘thing’. Res nullius refers to things that are unowned or have simply not yet appropriated by anyone such as an unexplored wilderness. Res communes refers to things that are open to all by their nature, such as the oceans and the fish in them. Res publicae refers to things that are publicly owned and made open to the public by law. Res universitatis refers to things that are owned by a body corporate, i.e., within the group such things may be shared but not necessarily outside the group. Finally, res divini juris (divine jurisdiction) refers to things ‘unownable’ because of their divine or sacred status (Kneen 2004).
5.12 While arguably knowledge exhibits all
five characteristics, for now, I restrict myself to contending that the public
domain derives from such Roman legal concepts. They are not, however, the
underlying source of Anglosphere usage.
Precedent is its source. In this
case precedent is two-fold. First,
import patents were first introduced in 15th century 5.13 Second, as will be described in greater detail below, copyright began in the 15th century as a licensing law for a new technology: the printing press and its entrepreneurial owner – the printer. Licenses were required for everything printed in order to prevent heresy and sedition. It quickly became apparent to the Tudor monarchs that it was easier to control a limited number of presses than a large number of subversive or heretical authors. A hand written manuscript could, after all, be read by relatively few; typeset copies, on the other hand, could be read by and corrupt many. Copyright licenses granted to printers were perpetual, at the pleasure of the Crown. No rights were granted to the author other than a one-time honoraria. 5.14 Three conclusions can be drawn. First, in the Anglosphere tradition the public domain is what the government of the day says it is, i.e., it is a political decision, it is not ‘natural law’ based on principle. Second, the public domain constitutes the shared or common knowledge-base of the national economy. Third, flowing from the first two, the Anglosphere public domain is continually threatened by the monopolistic tendencies of printers and their corporate proprietary descendents. In a sense, the Anglosphere public domain is a triumph of precedent over principle. To understand why, however, requires a different focus, that of constitutional and cultural history of the public domain of knowledge. Constitutional & Cultural History
5.15 After crushing the royal prerogative
over patents with the 1624 Statute of
Monopolies, for some 200 years the patent system in
5.16 The word ‘copyright’ itself entered the
English language only in 1735 (OED, copyright). Nonetheless, with the introduction of William
Caxton’s printing press (the first engine of mass
production) in 1476, the first copyright law was, in effect, introduced (Chartrand Fall 2000). Under Common Law, many rights initially
derive from inscribing or copying one’s name and explaining one’s ‘title’ to
property on a register. Thus in medieval
5.17 The religious wars that swept over
5.18 Thus, unlike continental 5.19 In 1557, Queen Mary granted a charter to what became the Company of Stationers of London. Stationers’ Copyright was based on royal prerogative or letters patent covering the entire publishing industry as an estate. This monopoly was assigned to members as a freehold interest. No consideration was given to author’s rights. The Stationers’ Company was the only monopoly to escape dissolution under the Statute of Monopolies in 1624. The reason was its political utility in fostering political and religious orthodoxy (Patterson 1993).
5.20 From the death of Henry VIII, 5.21 Two key developments are of relevance. The first was the Restoration of the monarchy in 1660 and the constitutional and cultural compromises that accompanied it. The second was the Glorious Revolution of 1689 that installed Queen Anne as the first constitutional rather than ‘divine’ monarch followed by passage of the first modern copyright act, the Statute of Queen Anne of 1710. As will be seen these developments continue to haunt contemporary policy debate about intellectual property rights, our rights to know as citizens and the global knowledge-based economy. 5.22 First, during Cromwell’s Commonwealth or Protectorate, the Protestants or Puritans were the titular winners but they were divided into many squabbling sects and could not agree among themselves. Cromwell, as Lord Protector, tried to mitigate their differences as well as those of Catholic and Anglican citizens. In the end, however, he gave up and approved the Restoration of the monarchy after his death. It was during the Protectorate, however, that the great Latitudinalist compromise of Robert Boyle was made (Jacob 1978; Jacob & Jacob 1980). Theologically, Boyle freed Anglican, Catholic and Protestant to read God’s other book, the book of nature using the new experimental philosophy. His success was marked by Charles II chartering the Royal Society in the year of the Restoration 1660. It was also during the Protectorate that the living author began to compete with the ancients and John Milton in his 1644 Areopagitica (1608-1674) began the cry out for freedom of the press. Subsequently, John Locke (1632-1704), in his Memorandum of 1694, argued for freedom of the press and against both Stationers copyright and perpetual copyright for the author.
5.23 Second, the final constitutional
battle between the Monarchy and Parliament occurred with “The Glorious
Revolution of 1689” when the last of the Stuart monarchs, the catholic James
II, was deposed by an Act of Parliament and replaced by his ‘protestant’
daughter Mary and her consort William of Orange. The resulting ‘Bill of Rights’ established
free speech in Parliament marking the beginning of a ‘free press’ in
5.24 In 1695 the last of the Licensing Acts lapsed. Government
control was henceforth limited to post-publication libel law. Suspension further spurred development of a
free press that could publish without prior consent of the authorities. Without the Licensing Act, however, the
Stationer’s Company perpetual copyright also lapsed and a rival appeared on the
horizon –
5.25 There were many attempts by the
Stationer’s Company to restore the old licensing system in the late 1690s and
early 1700s, but it was not until 1710 that a new copyright system came into
force. In fact between 1695 and 1710,
Scottish and domestic ‘pirates’ made it increasingly difficult for
5.26 An
Act for the Encouragement of Learning, by Vesting the Copies of Printed Books
in the Authors or Purchasers of such Copies, during the Times therein mentioned,
more commonly called the Statute of Queen
Anne of 1710, had three objectives. First,
it was intended to prevent any future monopoly of the book trade. Second, it was intended to draw 5.27 Until the Statute, the author had no economic and limited moral rights to a work after it was sold. Generally, a work was bought outright by a printer/bookseller/publisher for a flat one-time fee much like an all-rights or blanket license today. No royalties flowed to the author from subsequent sales. They did enjoy certain ‘moral rights’ including the right not to have the text changed and the right of attribution. Such rights, however, were based on ethical practices of the printers’ guild, not law.
5.28 The Statute of Queen Anne is
considered the turning point in the history of copyright because it was the
first law to formally recognize an author’s rights and, more importantly, it ended
prior government censorship through pre-publication licensing of works. Recognition of an author’s rights by the
Statute was, however, principally a device to attain its primary objective -
abolition of the Stationer's monopoly (Feather 1988, 31-36). In effect, it was a trade regulation bill and
did not recognize inherent and inalienable rights of the author (Shirata 1999). 5.29 In the end, the Statute of Queen Anne granted an extension of the existing copyright monopoly of the Stationer’s Company for 21 years and granted an exclusive right for new works for fourteen years with an option to renew for the same period. Furthermore, the Statute recognized the author as the initial copyright holder to encourage “learned men to compose and write useful books”. However, it also explicitly recognized the financial interests of “proprietors” who, by sale or assignment of the author's initial copyright, were almost invariably printers/booksellers/ publishers.
5.30 The Stationer’s Company, however, did
not give up. The 5.31 A number of cases were brought to court by printers/ booksellers/publishers during the 1750s and 1760s to gain recognition of a common law copyright independent of the statutory rights established by the Statute of Queen Anne. Publishers argued that an author is entitled to enjoy the fruit of his labor, just like all other forms of property - in perpetuity. A publisher, being merely an assignee of the rights of the author, should therefore also enjoy such rights in perpetuity independent of statute. It was not, however, until 1769 that a legal decision was rendered on the issue in Millar v. Taylor. Lord Justice Mansfield decided, with the majority, in favour of an author’s perpetual copyright while Justice Yates, as has been seen, opposed it. 5.32 Sir William Blackstone contributed to the plaintiffs' cause. Blackstone had previously published Commentaries on the Laws of England in 1767 in which he interpreted copyright for the first time as a legal concept (Blackstone 1771, 400-407). Using Lockean natural law theory (Locke 1690), he described copyright as a kind of personal property in common law on the ground that any kind of published work is based on the author's brainwork. This became known as ‘the sweat of the brow’ theory. Of course, in his 1694 Memorandum, mentioned above, Locke explicitly rejected perpetual copyright.
5.33 The plot of the booksellers was,
however, ultimately defeated in 1774 by the decision of the House of Lords in Donaldson
v. Beckett. It was this decision
that established the basic concept of Anglosphere copyright. When an author
fixes his creation in a tangible medium, he obtains a common law right that is
eternal in nature. However, he looses
this common law right with publication, or, ‘dedication to the public’. In effect, the House of Lords accepted the
dissenting opinion and reasoning of Justice Yates in Millar v. Taylor: 5.34 What is at issue is that the living author had attained the status of genius, someone who produces with god-like powers out of nothing (Woodmansee 1984). However, the reward for such genius was qualified by Enlightenment rights of the public at large (M. Rose 2004, 76). Thus while in a sense the work of the artist, author or inventor was god-like and qualified as res divini juris, they were also res communes - open to all by their nature and res publicae publicly owned and made open to the public by law. 5.35 The change, however, was less a boon to authors than to publishers because it meant that copyright was to have another function. Rather than simply being the right of a publisher to be protected against piracy, copyright would henceforth be a concept embracing all the rights that an author might have in a published work. And since copyright was transferable by contract to the publisher, the change meant that the copyright proprietor would enjoy any new rights granted the author by appropriation (Patterson 1968).
5.36 Thus, what started out in 1710 as a
statutory device to regulate the book trade, prohibit monopoly and end
pre-publication censorship, was transformed, at least in the popular
imagination, into a ‘natural law’ for the encouragement, protection and reward
of authors. In reality, however, author’s
rights - economic and moral – were effectively sacrificed to the pecuniary
interests of proprietors. Once a work
was typeset and published the author’s Common Law rights vanished like a wild
animal into the forest leaving behind a proprietor enjoying the rights and
privileges granted by an admittedly now time limited monopoly. 5.37 It has been argued that the public
domain only came into existence with the end of perpetual copyright (M. Rose 2004). And this was the state of English law in 1776
after which the laws of 5.38 First, despite the fact that
works of American authors were published in 5.39 A year before the House of Lords made
its decision on Donaldson v. Beckett, the Boston Tea Party marked the
beginning of the American Revolution.
Between 1773 and 1783 the 5.40 Accordingly, the last major copyright
decision of the British courts current in legal circles in the 5.41 As the revolutionary war played itself
out the publishing industry in the colonies increasingly turned towards
American authors. However, the trade
courtesy that protected printer/publishers afforded no protection to authors.
Some authors began to lobby for ‘copyright’ protection confusing ‘author’s
rights’ with the traditional copyright granted to printers. 5.42 The framers of the United States
Constitution, suspicious of all monopolies, knew the history of copyright as a
tool of censorship and press control.
They wanted to assure that copyright was not used as a means of
oppression and censorship in the 5.43 And, with respect to the copyright
monopoly and the 1774 reasoning of Chief Justice Mansfield in Millar v.
Taylor, in particular: Thomas
Jefferson, in 1788, exclaimed: “I hold it essential in America to forbid that
any English decision which has happened since the accession of Lord Mansfield
to the bench, should ever be cited in a court; because, though there have come
many good ones from him, yet there is so much sly poison instilled into a great
part of them, that it is better to proscribe the whole.” (Commons 1924: 276) 5.44 The The
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;
5.45 The importance of the clause is
evidenced by the fact that the power to promote ‘progress’ was one of very few
powers to regulate commerce initially granted to Congress. Two years after ratification of the US
Constitution, Congress passed the first Copyright
Act of 1790: An Act for the Encouragement of Learning, by securing the
Copies of Maps, Charts and Books, to the Authors and Proprietors of such
Copies, during the Times therein mentioned. Two things are important with respect to the
title of the Act. First, Article
1, Section 8 of the Constitution assigns rights to ‘Authors and Inventors’
reflecting the proximity of copyright and patents and its relationship to the
natural person as genius. The 1790 Act,
however, assigns rights to ‘Authors and Proprietors’. As in 5.46 Second, its title derives from the Statute of Queen Anne justifying the ‘securing the Copies’ as an encouragement for learning among the people. The importance of ‘learning’ led to the ‘Fair Use’ clause of the U.S. Copyright Act limiting copyright even during its duration. In the simplest terms, it means nonprofit, non-financially damaging copying is fair use. This provision allows public libraries, educational institutions and individuals to lend or copy works without paying royalties and avoid copyright infringement. This encouragement of learning, of course, amounts to increasing the personal & tacit knowledge-base of the nation, i.e., of the public domain. 5.47 Arguably, the First Amendment of the U.S. Constitution is directly related to copyright and hence to an Anglosphere concept of the public domain (Alstyne 2004): Congress
shall make no law respecting an establishment of religion, or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the government
for a redress of grievances. 5.48 The historical connection between the two is the pre-Statute of Queen Anne Licensing Acts which were used to control the press, restrict religious and political debate and thereby the public domain. These, at one and the same time, were used to restrict the press and maintain the perpetual copyright of the Stationer’s Company. In this sense, the First Amendment can be seen as a sibling of modern copyright with both serving to define the public domain. David Lange takes this argument further arguing that the public domain itself should be recognized as having a status analogous to citizenship with affirmative rights. “I want the public domain, however it may be defined, to secure these elemental aspirations which I believe innate in human kind: to think and to imagine, to remember and appropriate, to play and to create (Lange 2004, 483). 5.49 To any mapping of the public domain charted by the First Amendment and the Copyright Act one must add the more recent Freedom of Information Act that makes all government information part of the public domain unless national security or commercial confidentiality are involved. This last caveat ‘commercial confidentiality’ opens onto yet another tributary, this one within the domain of the Security & Exchange Commission and the Department of Commerce. And the list goes on and on and has been replicated, with variations, across the Anglosphere.
5.50 Unless the public domain as legal principle
is reconciled with the public domain as legal precedent, Lange’s vision will, however,
remain unrealized. In fact, the
progressive extension of the term of copyright in the
5.51 The situation in the constitutional
monarchies of the 5.52 In summary, there is an historic and continuing legal link between intellectual property and political rights, embodied in the U.K. by the ‘Bill of Rights’ of 1689, and, in the U.S., by the First Amendment to the Constitution. This linkage can be called ‘the public domain’. The concatenation of rewards for creativity, political rights including the right to know and proprietary profit flowing from the distribution of knowledge as property provides the backdrop for the very political economy of the public domain.
6.0 Political Economy of the Public Domain 6.01 The political economy of the public domain is like a dance performed by four principles: the creator, proprietor, user and government. The nature of the dance is summed up in the first reported case of copyright infringement in English history. In 567 of the Common Era, an Irish monk (later ‘Saint’ Columba of Iona) visited a neighboring monastery. Therein he copied - without permission - the Abbott's Psalter. When the Abbot found out he demanded the offending copy be turned over to him; Columba refused. The Abbott appealed to the King who ordered the infringing copy to be delivered to its rightful ‘proprietor’; Columba complied (Beck 1998). 6.02 In the beginning there is a creator of an original work (alive or dead) whose thoughts, images, sounds, etc., are fixed in an extra-somatic matrix, e.g. the Abbot’s Psalter. The work is then purchased, or ‘licensed’, by a new owner (Statute of Queen Anne) or proprietor (U.S. Copyright Act) of the work as distinct from its creator, e.g., the Abbot. The proprietor buys the work not for its own sake but rather to earn a profit or, in this case blessings through controlling access by third parties, i.e., distribution to users like a visiting monk. As long as the ‘copy’ has to be laboriously made by hand then access is easily controlled and the ‘right to copy’ not difficult to enforce. In the case of the Abbot’s Psalter, the real question is therefore how Columba’s efforts escaped notice until the work was completed. Was it deliberate? We will never know but the fact is the Abbot ended up with two copies and never became a saint. 6.03 The user, of course, is the ‘public’ – individual and institutional - in the interest of whose ‘learning’ the work is originally intended by the creator. In the case of the Abbot’s Psalter, the public included all potential readers of Columba’s copy over whom the Abbot would have no control (and from whom he would receive no blessings) if the copy was not delivered up to him. 6.04 The fourth principle of the dance is the State, or in Columba’s case, the King. The State is responsible for the well being of all citizens including creators, proprietors and users. In effect, the State is the choreographer of the dance. The public and private domains wax and wane according to steps laid down by the State, steps corresponding to its changing self-interest, or more precisely that of its representatives. It was thus the political utility of the Stationer’s Copyright alternatively in the hands of Anglican, Catholic, Puritan, Roundhead and Royalist rulers that allowed it to survive until 1710. 6.05 Today, unlike in the times of St. Columba, the State consists of three distinct branches – the executive, legislative and judiciary. Each can affect the rhythm and tempo of the dance. Thus the U.S. Patent Office (part of the executive branch) chose not to recognize genomic and computer software patents but the courts (part of the judicial branch) chose to interpret existing law passed by the legislative branch as enabling because it did not explicitly prohibit such patents.
6.06 Overtime who leads and who follows in the
dance also changes. As demonstrated in
my compilation The Compleat
Canadian Copyright Act 1921 to 1997 (Chartrand 1997),
one can literally trace the changing influence of creators, proprietors and users
through amendments to the Act. In 1931,
for example, agricultural exhibitions and fairs, as users, were granted
exemption from copyright infringement for the “performance without private
profit of any musical work” (S.C. 1931, c.8, s.6). Creators succeeded in 1988 in gaining
significant extension of moral rights even though such rights remain subject to
contract (S.C. 1988, c.15, s.4).
Similarly, in 1993 proprietors succeeded in having compulsory licensing
provisions repealed (S.C. 1993, c.44, s. 61).
This shifting power balance
highlights Paul David’s concern that the Anglosphere system of intellectual
property rights “has not been created by any rational, consistent, social welfare-maximizing
public agency” (David 1992).
6.07 There continues, as well, the ideological
conflation of creator and proprietor rights in the Anglosphere tradition, i.e., rights acquired as a reward for the
creator are transferable to a proprietor by contract, in whole or in part. This reflects, among other things: (i) confusion between intellectual property rights as trade
regulation and as reward to the creator; (ii) the legal fiction that natural
and legal persons share the same rights; and, (iii) the limited leverage of the
typical creator relative to a proprietor, e.g.,
as a creator, if you want your work published you must sign a blanket or all
rights licensing contract. The result is
that the power of the proprietor has been progressively strengthened by appropriation
of creator rights that are then used in negotiations with the State, generally at
the expense of users. Proprietors have
historically used, for example, the image of the starving artist to justify
more rights and strict enforcement of existing rights with little or no financial
gain to the typical creator. Today it is
being used again but this time, among other things, to legally inhibit downloading
of music and film and other copyrighted materials off the internet; two hundred
years ago, it fueled the ‘
6.08 With respect to users, the abuse of
market power by proprietors is evident in cases of patent and copyright misuse.
The doctrine of misuse was first developed in 6.09 During the 1990s, a series of U,S. court cases extended the doctrine to ‘copyright abuse’. The first cases also involved anti-competitive behaviour in restraint of trade. In Lasercomb v. Reynolds (911 F.2d 970 4thCir 1990) misuse was found when the copyright holder, in this case of computer software, used its license agreement to bar users from applying any ideas contained in Lasercomb software to write their own software. In other cases, the courts has found misuse when a license is granted only if the licensee agrees to use the copyright holder's hardware.
6.10 Copyright misuse, however, has more
recently been extended by the
6.11 Proprietors such as the Motion Picture
Association of America (MPAA) and the Recording Industry Association of America
(RIAA) have, with the innovation of the WWW, shifted enforcement attention from
for-profit commercial ‘pirates’ to users or ‘privateer’. Using the 1998 6.12 It is not only with respect to creators and users that IPR proprietors exercise ‘market power’. They have also entwined with the State in an incestuous political economic relationship like those condemned by Adam Smith. Among other things, the legal complexity of the subject, IPRs, together with the inherent complexity and novelty of leading edge technologies like the WWW and DVD make politicians open to the persuasive powers of more knowledgeable proprietors. This is captured by Litman concerning the American legislative copyright process and the absence of concern for the public domain and user:
The most compelling advantage of encouraging copyright
industries to work out the details of the copyright law among themselves,
before passing the finished product on to a compliant Congress for enactment,
has been that it produced copyright laws that the relevant players could live
with, because they wrote them… [M]oreover, [there
are] few signs that the entities proposing statutory revision have taken the
public’s interests very seriously. Instead, they seem determined to see their
proposals enacted before they can be the subject of serious public debate (Litman 1996).
6.13 The incestuous relationship between the
legislative process and proprietors recently surfaced in
… Vans Stevenson, a senior vice president
with the Motion Picture Association of America, said later that he had offered
input on the document but had not written it. (Zeller 2005)
6.14 Increasing concentration and
integration of the media, the so-called Fourth Estate, is a recurring problem
in the Anglosphere. Such concentration
is of concern because the press creates what Walter Lippman
called a pseudo-environment consisting of “pictures in our heads” (Lippman 1927). If
all knowledge is orientation in an environment then the average citizen has
‘hands-on’ knowledge of only a tiny part of that environment. Knowledge of the rest is obtained through
the media which is part of the noösphere.
While Lippman was concerned with the
propaganda role of manipulating such pictures to support the WWI war effort, in
peacetime the same process is at play. And
the press is in a privileged position to adjust “The Age of the World Picture”
(Heidegger 1938). This creates a
political economic dilemma, i.e.,
political power leading to economic profit and profit leading to political
power. Politicians need the media and
favourable media coverage plus campaign donations to get elected. Media conglomerates, unlike all other donors,
offer all three. In turn, the
conglomerates need politicians to pass legislation increasing profitability,
limiting competition and favouring their interests. Hand meets glove. 6.15 While this state of affairs is troubling for politics and consumer/users of knowledge, it may have passed a critical threshold with ‘official’ recognition of the knowledge-based economy (OECD 1996). Today only 12 to 15% of the labour force actually touches a physical good during the production process. The rest constitute what Robert Reich (1992) calls ‘symbolic workers’ and Peter Drucker (1999) calls ‘knowledge workers’ creating, processing, distributing and conserving knowledge. 6.16 Such workers include those engaged in producing output on the shop floor, e.g., using numerical machine tools, as well as managers and entrepreneurs. Unlike workers in the traditional manufacturing economy, however, they cannot expect lifelong employment and are increasingly contract and part-time employees moving from job to job – laissez passer. To the degree that knowledge is their business, they are alienated from their own output by IPRs. They cannot take their work product with them, nor in the case of copyright can they even claim paternity. For example, senior executives of major corporations are subject to legal lobotomy when moving from one employer to another. They are legally required not to reveal know-how and trade secrets of their old employer while their new employer is legally obliged not to ask. 6.17 Income distribution will, given current trends, likely grow into a major problem as the knowledge-based economy matures. Given that the dice are arguably loaded in favour of proprietors the average knowledge worker is in a weak bargaining position. Exceptional talent, i.e., the genius, will, of course, continue to enjoy special treatment. The dilemma of shareholders and managements in treating talent is captured in Peter Drucker’ 1999 article: “Beyond the Information Revolution”. Quite simply, a higher real wage is not enough to satisfy such workers. Rather Drucker concludes that it is necessary to find some way of “satisfying their values, and by giving them social recognition and social power” (Drucker 1999, 57). Arguably, this could be achieved by changing the balance of power in the private knowledge domain.
6.18 Assuming current trends continue,
however, it can be expected that income distribution for the knowledge workers will
increasing look like that of self-employed artists and entertainers who are
second only to pensioners as an income class recognized by Revenue Canada (Chartrand 1992). The income distribution of such knowledge
workers is not a pyramid with a broad base, wide middle and a peak but rather
an obelisk with a huge base of poor ‘starving artists’, a thin column of middle
class survivors and a tiny elite earning enormous remuneration, e.g., Pavoratti. This
could be the future of the knowledge-based economy – no middle class. 6.19 One major structural change accompanying the knowledge-based economy also needs to be noted: the National Innovation System (NIS) (OECD 1997). Nonprofit academic institutions partner with government and private for-profit actors to create networks of specialized research centres in priority knowledge domains, disciplines, sub-disciplines and specialties. Such centres are intended to facilitate commercial exploitation of new knowledge and enhance the competitiveness of the nation. In the process, three important structural changes are taking place.
6.20 First, the mandate of the
university is changing. The medieval
university was focused on interpretation of old knowledge. This mandate changed little following the
Scientific Revolution of the 17th century. With religious wars waging,
the university – Protestant and Catholic – were busy defending religious
doctrines and resisted the new experimental philosophy. In effect, the
university remained a training ground for elites in traditional and proper ways
of knowing. It was not until 1809 that the first research university was
founded in 6.21 Second, as patron of the national knowledge-base, Government fosters and promotes production of knowledge through arm’s length institutions. Such institutions generally direct funding according to peer evaluation. In Canada, for example, during the last decade the federal government has endowed a number of quasi-public foundations to support knowledge production, e.g., “Canada Health Infoway Inc., received $500 million from the federal government; others have received multiple payments amounting to, for example, $300 million to Genome Canada and $250 million for the Green Municipal Funds” (Auditor-General of Canada 2002, 1.9). In the past foundations, endowments or grant-giving councils were involved in the production of knowledge for knowledge sake. Today, however, as part of the national innovation strategy these new foundations are concerned with ‘knowledge for profit’. This means that commercial confidentiality veils many of their activities from public scrutiny. This, in turn, raises serious questions about the accountability of private interests serving the public purpose, i.e., Government by Moonlight: The Hybrid Parts of the State (Birkinshaw, Harden and Lewis 1990).
6.22 Third, to date, the 6.23 With the knowledge-based economy, the question of knowledge and democracy takes on an added and potentially troubling dimension. How, given the increasing monetarization of information, can information democracy survive, let alone prosper? 7.01 With the collapse of the Communist Revolution, its predecessor, the Republican Revolution, remains the only ideology standing in a global knowledge-based economy. The foundation of this revolution was the individual Person, not the family or bloodline or class or body corporate. This concept developed out of the unique experience of Western Europe beginning with the artist/engineer/humanist/scientist of the 15th century Renaissance who, while of ignoble birth, demonstrated the god-like power of creating ex nihilo, ‘out of nothing’ (Nahm 1947). It was at this time that the first patents were awarded to such genius. The Protestant Reformation of the 16th century saw the individual claim the right to direct communion with God without mediation by Pope, priest, philosopher, lord or lady. The experimental philosopher of the 17th century further leveled the feudal hierarchy when the scientific instrument rather than social rank became the measure of all things physical. In the 18th century the rise of the contemporary author together with insights flowing from the natural sciences ignited the “Querelle des Anciens et des Modernes”, i.e., the battle of the Ancients and the Moderns, marking the opening of the 18th century European Enlightenment (Kristeller 1952, 19). And then, by the close of the century, the Republican Revolution overthrew the ancient regime of subordination by birth declaring “All men are created equal” and governance of the State by “We, the People”.
7.02 While the French Revolution linked the
individual as creator of new knowledge to Civil Code rights that are “inalienable,
unattachable, impresciptible
and unrenounceable” (Article 11, Decision 351, Andean
Community, 1993), the American Revolution adopted the Common Law tradition of
subordinating the interests of the creator to the proprietor. In this tradition there is ongoing
confusion. First, there is
confusion between IPRs as a form of trade regulation
intended to prevent monopoly and as a reward for individual creativity. Second, this confusion is compounded
by the fiction that a legal person can enjoy the same rights as the natural
Person specifically with respect to IPRs. Third, there is confusion between the
purpose of IPRs as legal foundation for the industrial
organization of the knowledge industries and as means to foster a public domain
of knowledge available free and without restriction to all. Fourth, in this confusion the intimate historical connexion between the
individual Person as knowledge creator and as foundation of the political order
has been obscured, arguably endangering our political freedoms. Together with the organic evolution of Common
Law through precedent, it can thus be justly concluded, along with Paul David,
that the current IPR regime “has not
been created by any rational, consistent, social welfare-maximizing public
agency” (David 1992). 7.03 In
the emerging global knowledge-based economy, proprietors continue, with the
advent of new communications and other technology, to argue that more and more
property rights be granted to the creator (all, of course, transferable, by
contract, to the proprietor) in order to enclose new knowledge within the
private domain wherein they can earn profit by controlling access, or blessings
like St. Columba’s Abbot. To me, this is a political economic shell
game in which such politically granted rights lead to economic profits and
profits lead to the political power necessary to increase such rights. To James Boyle (2003b), it represents “the
second enclosure movement” in Anglosphere legal history. The first drove peasants off the common lands
of 7.04
That
is how the law stands today. Almost 300
years ago the Myth of the Creator was born with a Statute intended to break the
perpetual copyright monopoly of the Stationers’ Company, to end pre-publication
licensing and bring 7.05 In a knowledge-based economy the current IPR regime amounts to subordination of the natural Person to bodies corporate. It amounts to a counter-revolution overturning the American and French Revolutions and leading us back to a new feudal age. It is time to finish the first flawed Republican Revolution. It is time to connect the economic and political rights and freedoms of the natural Person. It is time for a second Republican Revolution! And the nice thing about ‘legal fictions’ is that the revolution requires but a single Supreme Court decision clearly distinguishing ‘the rights to know’ of the natural Person from those of any and all bodies corporate or collective. A Dieu ? Alstyne, W.W. Van., “Reconciling What the First
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