SURVEY OF INTELLECTUAL PROPERTY IN THE GLOBAL VILLAGE
Uses & Abuses
As previously noted, intellectual
property rights (IPRs) have evolved over the course of centuries (Chartrand
but as economist Paul David: observed, they have not been created “by
any rational, consistent, social welfare-maximizing public agency” (David
The resulting regime is “a Panda’s thumb”, i.e., “a striking
example of evolutionary improvisation yielding an appendage that is
inelegant yet serviceable” (David
Paralleling development of IPRs is the evolution of multilateral and
national cultural property rights (CPRs) (Chartrand
In this concluding section I will consider some 18 uses and abuses of
the ICPR regime.
For our purposes, appropriation refers to
the taking of intellectual and cultural property from Third and Fourth
World Peoples and using it for profit in the developed world. This
practice involves both copyright and patents. First, copyright.
In preliterate societies knowledge is transmitted orally, usually
through the mnemonics of chant, ritual and storytelling, enforced
through religious practice and taboo. The association of rhythmic or
repetitively patterned utterances with supernatural knowledge endured
well into historical times. Among the ancient Arabs, for example, the
word for poet was sha'ir, “the knower”, a person endowed by the
spirits with knowledge (Jaynes 1978).
Oral tradition remains the dominant form of
inter-generational and intra-generational transfer of knowledge among
peoples of the Fourth World – aboriginal or indigenous peoples. It can
only be transmitted and the fabric of the culture maintained through
person-to-person communication. It is not codified extra-somatically.
To many tribal peoples, a song, story or icon does not belong to an
individual but to the collective. Rights are often exercised by only
one individual in each generation, often through matrilineal descent.
The intellectual property rights regime,
however, is based on three principles: (a) fixation of knowledge in
material matrix; (b) limited duration of rights before knowledge enters
the public domain; and, (c) rights are granted only to a Person –
Natural or Legal. This means that: (a) ephemeral works such as the
spoken word are not protected; (b) tribal traditions granting rights in
perpetuity – as long as the rivers flow and the sun shines – have no
legal standing because the knowledge is in the public domain; and, (c)
family lines, clans or tribes are not Persons in a legal sense and hence
can have no standing in court unless they incorporate and adopt alien
ways of governance.
The question of “appropriation” has arisen
in the artistic community regarding the telling of tales and creation of
works of art based on Fourth World cultures. At the extreme, the term
is ‘cultural vampirism’. On the one hand, some in the First World
community recognize ownership by Fourth World peoples of their own
cultural property. On the other hand, there are those who believe if
artists restrict themselves to their own culture all humanity will be
deprived of cultural richness.
An apocryphal example of appropriation is
the alleged mid-1980s case of the thunderbird motif used by the Kwakiutl
people of west coast Canada. Kwakiutl women knitted woolen sweaters
using this design. A pair of Japanese businessmen saw the sweaters on a
tour and promptly mass produced them for sale in Asia. Apparently over
$100 million in sales were made. Not a penny was returned to the
Kwakiutl people. And because such images are considered to be in the
public domain the Kwakiutl had no standing in court to seek damages and
compensation for the appropriation of their cultural property for the
profit of others.
patents. Another aspect of Third (the developing countries of the
South) and Fourth World knowledge is traditional environmental
knowledge, or TEK, defined as a body of knowledge built up by a people
through generations of living in close contact with a specific natural
Ethnobiology is the interdisciplinary study
of how human societies use or have used flora and fauna to serve human
purpose, e.g., for medical or nutritional purposes. Its principal
sub-disciplines include ethnobotany, ethnomycology, ethnolichenology,
ethnozoology, ethnoecology, paleoethnobotany, and zooarchaeology. The
Ethnobiology publishes a
journal documenting activities in these fields.
Ethnobiology draws heavily on the knowledge
of historical, pre-modern and/or indigenous peoples of the Third and
Fourth Worlds. Such knowledge is generally called ‘traditional
ecological knowledge’ or TEK. With the 1991
Convention on Biological Diversity (CBD) the principles of
compensated bioprospecting were established globally with the notable
exception of the United States which is not a member of the Convention.
The convention recognizes ownership of biological forms like mineral
deposits by the Nation-State in which they are found. Efforts by the
World Intellectual Property Organization and UNESCO to cede TEK rights
to indigenous peoples themselves rather than the Nation-State in which
they live have, so far, failed.
In 1995 with the founding of the World
Trade Organization (WTO) and its
Agreement on Trade-Related Aspects of Intellectual Property Rights
(TRIPS) a conflict developed with the CBD. Under Common Law and
Civil Code intellectual property rights can only be granted to a Person
– natural or legal – and only for a limited period of time. The idea
that such rights could reside in traditional knowledge that lasts
forever and belong to a collective such as a tribe or indigenous nation
is therefore rejected by TRIPS. Similarly, to qualify for protection
knowledge must be novel and not the documented subject of previous art.
Given that most TEK is oral in nature (or written in obscure ancient
languages) this means that biotech firms can, for example, patent the
active ingredients of traditional medicines as well as crops because
there is no previous documented art.
The exploitation of TEK by biotech firms
has led to charges of ‘biopiracy’ (Duffield
2002), i.e., stealing the work of others for one’s own
profit. Among the leading and most articulate critics is India-born
Vandana Shiva (Shiva
1999). In response Third World countries have increasing sought to
protect their biological resources. India, for example, is putting
together a 30-million-page electronic encyclopedia of its traditional
medical knowledge (as well as yoga positions). Ancient texts in
Arabic, Bengalis and Sanskrit are being translated into five global
languages - English, French, German, Japanese and Spanish - in an effort
to establish ‘previous art’ and prevent others from claiming
intellectual property rights (Biswas
2005). Brazil, on the other hand, is tightening enforcement of its
CBD rights and has, for example, recently sentenced Marc van Roosmalen,
a world-renowned primatologist, to 16 years in prison for ‘biopiracy’ (Rohter
for novel genetic command codes is thus heating up.
There are thus similarities between Third
and Fourth World peoples. However, the Third World is made up of
sovereign Nation States. They can pass laws and sign international
agreements requiring “national treatment”. Peoples of the Fourth World,
on the other hand, are unable to do so. Rather, they must depend on
national and international institutions if their cultural property is to
be legally recognized. In this regard the 2005 UNESCO Convention on
Intangible Cultural Property represents the most fully articulated
international expression of global concern.
Author’s Rights &
The first reference to the ‘author’ in the
official record is found in a 1542 Proclamation of Henry VIII. It did
not, however, refer to the rights of authors but rather to their
liability for works against religious doctrine. Liability was
henceforth to be determined by compulsory inclusion of the author’s and
publisher’s name and the date of publication. If a work was deemed
offensive its author and publisher could quickly be identified.
In fact during the entire period before the
Statute of Queen Anne in 1709 the author had no rights. If lucky a work
would be sold to a Stationer for a one-time payment or honoraria. All
rights were then assumed in perpetuity by the Stationer copying the
title into the Company’s Register – hence copy right. More often,
however, a work was in effect given to the Stationer, sometimes with
payment for printing, as a form of ‘vanity publishing’. Capital as
printing press technology simply trumped authorship. Words are cheap;
paper and ink are not, at least then.
Payment for authors was so low that many of
the best writers of the Elizabethan age turned to the theatre. Their
talent was attracted by the pecuniary success of the new medium and its
generous compensation (Backus
1897, 84-86). With a Stationers’ honoraria an author could not get
rich but could if the work was performed. Something like 1 or 2 nights
of box office each week was the reward. This arguably remains true (Litman
It was in fact only in 1644 that Milton in
his Areopagitica raised author’s rights, arguably for the first
time. That even he, the most famous poet of the time, had little
bargaining power with publishers is reflected in the following quote:
1667, April 27. Milton executes this day
the contract disposing of the copy-right of his Paradise Lost to Samuel
Simmons, a printer and stationer of London, for the present sum of five
pounds, and five pounds more when 1300 copies of the first impression
should be sold in retail, and the like sum at the end of the second and
third editions… This is one of the earliest authenticated instances of a
copy-money being given by previous agreement for an original work. (Timperley
It should be noted that Simmons, the
publisher, became rich while Milton got £5 for each re-printing. Later
in the century John Locke formalized his labour theory of value giving
birth to the ‘sweat of the brow theory’ of copyright. Locke, however,
later argued against not just perpetual Stationers’ copyright but also
against perpetual author’s rights in his 1694 Memorandum.
The idea that an author’s rights are
extinguished on sale of a work to a proprietor is implicit in the
1709/10 Statute of Queen Anne and was subsequently confirmed by
the dissenting opinion of Justice Yates in the 1769 Court of King’s
Bench case of Miller v. Taylor. Yates argued that any moral or
other rights of the author are extinguished on sale or assignment to and
publication of a work by a proprietor. Yates’ opinion was confirmed by
the 1774 decision of the House of Lords in Donaldson v. Beckett.
This was three years before the King of
France in 1777, following the Enlightenment precepts of Immanuel Kant,
declared authors had perpetual moral and economic rights to their works
1990). In the French Revolution these rights were limited in time
to favour the public domain. Nonetheless, this concept fundamentally
changed bargaining power making the publisher/producer an agent of the
author not the plenary owner of a work under the Civil Code. Even an
employee retains moral rights to one’s work.
Under Common Law, however, all rights of
the author were and remained subject to assignment to a proprietor.
This is most apparent with the blanket or ‘all rights’ license
including, in Canada, the waiver of all moral rights in favour of a
Advertising is intended to persuade
consumers – final or intermediary – to buy a particular brand. Sometimes
brands are technically similarly but advertising can differentiate them
in the minds of consumers, e.g., Tide vs. Cheer,
effectively splitting off part of the industry demand curve as its
‘owned’ share. In the Standard Model of Market Economics only factual
product information qualifies as a legitimate expense. Attempting to
‘persuade’ or influence consumer taste is ‘allocatively inefficient’
betraying the principle of ‘consumer sovereignty’, i.e., human
wants, needs and desires are the roots of the economic process.
This mainstream view connects with consumer
behaviour research which calls this approach the ‘information
processing’ model. A consumer has a problem, a producer has the
solution and the advertiser brings them together. It is a calculatory
process. An alternative consumer behavior school of thought, ‘hedonics’
argues that people buy products to fulfill fantasy, e.g., people
do not buy a Rolls Royce for transportation but rather to fulfill a
lifestyle self-image (Holbrook & Hirschman 1982; Holbrook 1987). Thus
product placement, i.e., placing a product in a socially
desirable context, enhances sales (McCracken
1988). In this regard
the proximity of Broadway and especially off- and off-off-Broadway (the
centre of live theatre) and Madison Ave. (the centre of the advertising
world) in New York City is no coincidence. Marketeers search the
artistic imagination for the latest ‘cool thing’, ‘style’, ‘wave’,
etc. Such pattern recognition is embodied in the new professional
‘cool hunter’ (Gibson 2003) coolhunter.com. In fact peer-to-peer brand
approval is consumer business success in the age of the Blog.
In terms of IPRs, branding is a glorified
form of trademark. The ‘Brand’ represents, like its trademark, the
‘goodwill’ of costumers who come back and come back again and again.
This defines a ‘going concern’. Branding, however, like traditional
advertising relies on the Arts for it impact. Again, Art is the
technology of the heart.
Over the past four decades, branding has
evolved. In the 1950s, a brand was made by a product's claim to
uniqueness. The idea might be utilitarian: trustworthy, effective, a
bargain. By the 1980s, the idea was the organisation behind the
product, e.g., The Body Shop ®. In the 1990s, a Brand created a
culture around itself. It wasn’t the product but the "right" label –
Apple, Nike, et al.
Today a successful Brand persuades people
to consume an idea in consuming a product. A Brand becomes shorthand
for identity. Think sneakers.
It has been argued that mainstream Branding
uses big, brash logos turning a consumer into a walking advertisement
seeking the lowest common denominator. The Mainstream and
Counterculture, however, has fissioned into a multiverse of mainstreams,
counter-, sub- and counter-sub-cultures. In broadcasting it is called
‘narrowcasting’. Here the consumer wants novelty and here are emerging
so-called ‘minibrands’ or Underground Brands in major capitals around
the world – New York, Tokyo, London, Paris, Madrid, Seoul, Shanghai and
Hong Kong. Think microbreweries.
Here brands are creative expression of a
culture or lifestyle. The idea is to generate ‘meaning’ beyond
commercial success. Firms, instead of attaching ideas to products,
create products to express an idea. Nonetheless, to remain a going
concern customers must come back again and again and again.
There are also ongoing efforts to establish
the ‘Brand State’. Through organized advertising campaigns,
Nation-States strive to create a positive image in the minds of
foreigners. Singapore and the Republic of Ireland are examples that
have successfully created an emotional resonance with other peoples (van
Ham 2001). On the one hand, the Brand State reflects the importance of
tourism as the largest industry in the world. A quality brand, however,
also lubricates the sale of other goods and services on world markets.
On the other hand, contemporary branding is arguably just an extension
of ancient historiography practiced by royal dynasties in medieval and
Renaissance Western Europe. National historiography, the origins of
nations, differ between the Nations States that coalesced into modern
Europe out of the Germanic occupation of the Western Roman Empire (Chartrand
1992). In France, it was
the Chanson de Roland telling tales of glory about Charlemagne’s
champion stopping the Islamic invasion of Western Europe. In England,
it was the Arthurian legend and the Holy Grail used to support the
Tudors and the Anglican Church and then the Anglo-Saxon
‘throneworthiness’ myth used by Parliament to overthrow the Divine Right
of Kings (MacDougall 1982). Nonetheless, Brands – corporate and
national – are effectively trademarks embodying the goodwill of
Copyright & Patent Abuse
One legal development emerging from the
contemporary campaign is ‘copyright misuse’. This is a relatively new
legal concept that emerged in the United States with the case of
Lasercomb America v. Reynolds in 1990. The concept is based on the
more developed doctrine of patent misuse. In the U.S., a patent misuse
defense against alleged infringement is an equitable defense that must
show that the patentee has impermissibly broadened the physical or
temporal scope of the patent resulting in anticompetitive results. If
the defense is successful then the patent will be judged unenforceable
while remaining valid.
Copyright misuse occurs when a copyright
owner, through a license, for example, stops someone from making or
using something that competes with the copyrighted work but does not
involve use of the original itself. An early case was Video
Pipeline, Inc. v. Buena Vista Home Entertainment (2003). While
not successful due to legal technicalities:
The defense of copyright misuse was raised
… because Disney licensed its movie trailers subject to license terms
that prohibit the licensees from using the movie trailers in a way that
is derogatory to or critical of the entertainment industry or of
Disney. That is, Disney uses the exclusive rights conferred upon it by
the Copyright Act, not only to obtain a return for its creative efforts
(which is consistent with the purposes of copyright protection), but
also to suppress criticism (which is contrary to the purposes of
copyright protection). (Tech
Law Journal Daily E-Mail Alert,
As noted in a 2010 judgement involving
Cosco and Omega Watches of Switzerland:
Cases that have found copyright misuse have
been limited to situations involving antitrust typing agreements and
restrictive licensing agreements. However, this is not to say that
copyright misuse could not exist in other situations. Indeed, the
courts in Lasercomb, Practice Management and A&M Records all
deliberately chose a broad rule for copyright misuse so that the rule
could be applied to new situations as they arose. If the contrary were
true, then those courts would not have made a tying agreement or a
restrictive licensing agreement a necessary element of copyright
misuse. Finally, “[c]opyright misuse is an equitable defense to
copyright infringement, the contours of which are still being defined.”
MDY Industries, LLC v. Blizzard Entertainment, Inc., 629 F.3d 928, 941
(9th Cir. 2010).
Piracy & Plagiarism
Counterfeiting and plagiarism involve
fraud, i.e., passing off something as something it is not.
Piracy, on the other hand, involves theft and the sale or other
distribution of stolen goods.
consider a traditional case of counterfeiting and piracy. For
millennia, visual works of art have historically attracted the attention
of confidence tricksters, forgers, thieves and others involved in
criminal activity. Works resulting from such activities may, in and of
themselves, have very high aesthetic but little if any scarcity value.
Most works involved in fraud were created with good intent, for example
as a test of a maturing artists’ skill in replicating the work of a
recognized Master. Subsequently, however, these works may be used as
instruments to commit fraud by someone else who passes them off as by
the Master when they are merely “of the school”, “of the period” or “in
the style”. It is the “passing off” which is fraudulent, not the works
With respect to piracy, Thomas Hoving,
former curator of the Metropolitan Museum of Art in 1992 at the
World Economic Forum estimated, while on contract with the Turkish
government, that $250 to $300 million a year is plundered from Turkey
because most empires of the ancient and medieval worlds were, at one
time or another, resident in Turkey. He outlined the organized crime
connections in what has become the most lucrative of all international
crimes. According to Hoving, ounce for ounce, art is more valuable than
heroin; it yields this higher rate of return at less risk and faces
significantly less punitive criminal punishments. Germany and
Switzerland were identified as the main ‘laundries’ for stolen art and
plundered antiquities stored in bank vaults, sometimes collateral for
loans from the same bank.
consider contemporary examples of counterfeiting and piracy. With
respect to counterfeiting, trademarks and industrial designs are the
subject of organized criminal activity. To most of us, counterfeiting
means forging money but counterfeiters turn out a wide range of goods
including designer fashion goods, software, CDs and DVDs, medicines,
mobile phones, food and drink, car and aviation parts.
Once upon a time counterfeits were cheap
and shoddy imitations, today their packaging and contents, especially of
digital products, often make them virtually indistinguishable from the
genuine article. They use the same industrial design and bear the same
trademark as the original and are then fraudulently passed off as the
Contemporary piracy, on the other hand,
generally involves literary, musical and artistic works as well as
software. An original is obtained by one means or another and copies
then made available for sale or other distribution with no pretense of
being the original. Illegal downloading sites, for example, make no
pretense that it is selling the original.
Counterfeiting and piracy come together in
‘theft’ of an industrial design, copyrighted work, patent or trademark.
They separate when such designs or trademarks are used to pass off a
counterfeit as the real thing – fraud. The financial cost to producers
and the health and safety costs to consumers of counterfeit goods is in
the tens if not hundreds of billions of dollars a year. For the most
recent U.S. estimates please see:
The Report of the Commission on the Theft of American Intellectual
Property, May 2013.
Cross Market Penetration, Cultural Sovereignty & American Clones
According to Wikipedia, largest global
media conglomerates are Viacom, CBS Corporation, Time Warner, News
Corporation, Bertelsmann AG, Sony, Comcast, Vivendi, Televisa, The Walt
Disney Company, Hearst Corporation, Organizações Globo and Lagardère
Group and, as of 2012, Walt Disney, News Corporation, Time Warner and
Viacom were in order the largest American conglomerates.
Unfortunately the last study of global
media concentration was conducted in 1990 by the National
Telecommunications and Information Administration: Comprehensive
Study on the Globalization of Mass Media Firms. At that time, 5
media conglomerates contributed nearly 20% of the world’s output of news
and entertainment programming. These firms are conglomerates that are
vertically and horizontally integrated producing film, music, books,
newspapers and television programming as well as their more recent
internet activities. It should be noted that at the time only one of
the five top firms was American-owned – Time Warner. The others were
Bertelsmann (German), News Corporation (Australian), Hachette (French)
and Sony (Japanese). Nonetheless the primary market for all five was
the United States.
There are two reasons for American cultural
dominance beyond imperialism – audience size and the Common Law
tradition of copyright. With respect to audience, the United States is
the third largest country by population after China and India. More
importantly it is significantly richer per capita than both. While
India through Bollywood has made significant gains in global media
recognition China has yet to gain much recognition partially because its
market economy remains directed by a Leninist regime – laissez faire
by Party dictate. Historical Chinese events while of great cultural
value, simply do not resonate commercially in the global marketplace
like American films such as The Terminator and The Predator.
The myths are simpler as is the dialogue. Action speak, not words.
They translate easily.
With respect to copyright, the ability to
ignore the moral rights of artists and authors enabled Hollywood to rise
while Paris and Berlin faded in the early age of film. Collective works
such as motion pictures, stage plays and sound recordings in the
Anglosphere belong to those responsible for organizing ‘production’,
a.k.a., the producer, proprietor or publisher, usually a legal
person or body corporate, a.k.a., a limited liability
corporation. This contrasts with the Civil Code tradition in which
rights to such works reside with the ‘artistic’ director as author with
associated moral rights. As one Common Law lawyer suggested moral
rights make negotiations very difficult. The ability to shape a work to
enhance its commercial rather than aesthetic value is thus limited in
Civil Code countries but relatively unlimited in the Common Law
The response has been cross market
penetration whereby foreign firms set up operations in the United States
to benefit commercially from both the larger base market and Common Law
copyright. At the same time, as has been seen, domestic markets in many
countries are subject to film and recording quotas to limit American
market penetration and foster domestic arts industries including
bilateral and multilateral film co-production agreements. In many cases
the result has been what I call ‘American cultural clones’, i.e.,
foreign made literary and artistic works designed to look and feel
Digital Conversion & Locks
Old wine in new bottles is an old story.
When the oral era ended the manuscript era began with a backlog of tall
tales and stories of a mnemonic age. Manuscript supplanted the oral
because it more accurately recounted and preserved a story not subject
to the vagaries of human memory, generation after generation.
When print emerged there was a backlog of
ancient and medieval manuscripts by famous long-dead authors.
Conversion of manuscript to print initially pre-occupied the industry to
the detriment of contemporary authors. Print supplanted manuscript
because each copy was mechanically identical, the message always the
same, not subject to the vagaries of dictation by which manuscripts were
‘mass’ produced or the idiosyncrasies of the solitary transcriber. The
printing press of 1440 was the first engine of mass production and an
enabling technology for all other industries.
Photography and audio-video recording then
fixed sight and sound just as the manuscript had fixed human speech.
Broadcasting then made ‘recorded’ and ‘live’ sights and sounds available
to a mass listening and viewing audience. Radio thus began with a
backlog of phonograms, plays and books while television began with a
backlog of black & white movies of the 1930s and 40s. Cable increased
the number of channels permitting narrowcasting to niche markets.
Audio-video recording and broadcasting, however, involved sight and
sound not print, not text.
Earlier experiments with interactive text
in the 1970s and 80s such as Telidon in Canada and the electronic phone
book in France were, in effect, washed away by the 1990s digital tsunami
called the Internet. Unlike print and audio-video recording digital
technology is able to convert all human communications – text, sight and
sound - into a common format permitting easy and accurate duplication as
well as near instantaneous global transmission.
As in previous communications revolutions
there is a backlog of content awaiting digitization. Also contemporary
authors, artists and creators in general must contend with competition
not just from living peers but with the famous dead. This is a primary
differences between the Arts and Sciences: New knowledge does not
necessarily displace the old.
The digital is, however, unlike previous
revolutions. First, it is not a one-to-one conversion but rather
all-into-one. All analogue content – text, sight, sound – is being
converted into digital format. It should be noted that when a work is
converted from say film into DVD a new term of copyright begins for the
work fixed in the new format.
The backlog includes not just works under
copyright but also those in the public domain and the patrimony of
Nation-States. For works in the public domain and national patrimony
the question becomes: Who will digitize and what will be the terms of
access? As noted above the European Union is taking an active role on behalf of its
member states to ensure the public domain and national patrimony remain
‘free’. In the Anglosphere, however, the commercial sector is the most
active with access being financial in nature.
The historical connection between
Carpenters, Joiners, Smiths & Letter Founders of the 1662 Licensing Act and the Digital Millennium Copyright
Act of the United States was first noted by Patterson (2003/3). I have
since extended it to include the Canadian Copyright Modernization Act,
Bill C-32, June 2010 (Chartrand 2010). Carpenters, joiners, et al were the
craftsmen who could build presses – legal or illegal. Hackers and
console cowboys are the craftsmen who can pick the digital locks of the DMCA and CMA. The wording of this historic Act bears an uncanny
resemblance to both post-Common Law statutes:
Licensing Act 1662
… no joyner, carpenter, or other person
shall make any printing press, no smith shall forge any iron-work for a
printing press, no founder shall craft any letters which may be used for
printing for any person or persons whatsoever; [nor import or buy
materials] belonging unto printing, unless he or they respectively shall
first acquaint the… master and wardens of the… company of stationers...
for whom the same presses, iron work or letters are to be made, forged,
cast, brought or imported…
13 & 14 Car. II, c. 33, 1662.
Digital Millennium Copyright Act
No person shall manufacture, import, offer
to the public, provide, or otherwise traffic in any technology, product,
service, device, component or part thereof, that is primarily designed
or produced for the purpose of circumventing a technological measure
that effectively controls access to a work protected under this title.
17 U.S.C. § 1201(a)(2)(A), 2000.
Copyright Modernization Act
No person shall…
(c) manufacture, import, distribute, offer
for sale or rental or provide - including by selling or renting - any
technology, device or component if
(i) the technology, device or component is
designed or produced primarily for the purposes of circumventing a
technological protection measure…
Bill C-32, s.47, June 2010.
Theory of IPRs
Patterson believes that ongoing legal
tension between copyright, and I would argue IPRs in general, as a
proprietary monopoly and as a statutory grant has seriously compromised
attainment of the purpose of copyright – the encouragement of learning.
To escape the resulting confusion Patterson proposes an alternative
theory: copyright as easement of conflicting property rights. In eight
succinct paragraphs Patterson lays out his alternative unified or
‘easement’ theory of American copyright:
A legal theory provides a framework for
analysis. To be useful, it must be consistent, coherent, and congruent:
consistent in its parts, coherent as a whole, and congruent with the
public interest. We need not revisit the point that, by these measures,
copyright theory is lamentably lacking by reason of its dual nature,
which prevents it from doing what copyright theory should: enable a
decisionmaker to allocate rights and duties among creators,
entrepreneurs, and users in a manner that serves the public interest in
the creation, transmission, and use of knowledge.
The unusual aspect of this dictum is the
inclusion of duties in the copyright equation. The reason that duties
are important in this context is that copyright law is based on a
tripartite relationship of author, publisher, and user. While a
two-sided relationship may involve only rights of one party and duties
of the other, a three-sided relationship changes the equation so that
all the parties have duties to each other: the author and the publisher
have reciprocal duties; both have duties to respect the rights of the
user; and the user has a duty to respect the rights of the author and
This is not the usual analysis, both
because the issue typically arises in litigation, which is bilateral in
nature, and because publishers are assignees of authors. The
assignor-assignee relationship gives the impression that copyright law
entails only a bilateral relationship between author and user, which
enables the publisher to reap the benefit of the equity due to the
The tripartite relationship, however, makes
apparent this usurpation of equity, and that in turn makes apparent the
defects of treating copyright as either the statutory grant of a
monopoly or a natural law property of the creator. As to the statutory
grant theory, courts have difficulty maintaining the limits of the
grant, as the long-lived (and unconstitutional) sweat-of-the-brow
doctrine proves. As to natural law property, courts have difficulty in
recognizing the rights of users, both because users seldom have
advocates and because the most fundamental characteristic of property -
the right to exclude - is enhanced when the property is “natural,” that
is, acquired by creation rather than transfer.
While copyright is a form of property, it
is in no sense natural; indeed, it is more of a quasi-property right
than a plenary one. The question, then, is whether there is a property
concept that is more appropriate for copyright as a limited property
right than are fee simple rules developed for real property. Such a
concept would be a quasi-property right because copyright entails
limited rights recognized for a limited time among creators,
entrepreneurs, and users - complex relationships that require a concept
The proprietary concept that has this
characteristic is the easement, a concept of inclusion, not exclusion -
and it is this variation on the property scheme that leads to the
conclusion that copyright is best treated as quasi-property in the form
of an easement. There is, in fact, a good case to be made that the
easement concept is not only consistent with, but may even be required
by, the Copyright Clause of the Constitution.
One advantage of the easement theory is
that it makes irrelevant the origin of copyright as the source of theory
- creation by an author or grant by a legislature - which too often
produces a tail-wagging-the-dog situation. This is because the
legislative grant can be said to be based on the equity that is the
basis of natural law, which serves as a rationale for enhancing
copyright. The error is in assuming that the use of natural law as the
motivation justifies treating the final product (despite its statutory
limitations) as a natural law concept.
The advantage of easement theory is that it
combines the natural law and statutory grant theories so that neither is
dominant. Thus, copyright as an easement can be used to protect the
author's rights, but also to limit those rights in order to protect the
rights of others. The essence of the easement theory, then, is this: it
requires that rights in copyright law be defined for the purpose of
regulation in terms of the public interest rather than in the private
interest of the author, the publisher, or the user. (Patterson & Birch
Enclosure of the Public Domain
Dislocation of the rural population in the
early Tudor period resulted from the plague but especially from the
enclosure movement. Land owners recognized wool as more valuable than
turnips for peasants tilling traditional common lands and enclosed it to
keep sheep. The dislocation was then amplified by disestablishment of
the Roman Catholic Church in England and disbursement of its land and
property to the supporters of Henry VIII. As recorded in this work the
result was successive statutes and proclamations against vagabonds,
rogues and sturdy beggars including bards, minstrels and common players
Some observers suggest another enclosure
movement is underway today, this time of the public domain (Boyle, 2003;
Patterson 2002/3). Stretching the point there is also a movement to
disestablish or delegitimize Government and disburse or privatize its
property to free marketeers.
Among the crown jewels of the Nation-State
is the public domain of knowledge – all that’s free to know. It is
connected to freedom of information, speech (Patterson 2002/3, 41) and
national patrimony. In fact the Statute of Queen Anne justified modern
copyright as a means of encouraging learning by rewarding authors but
only for a limited time after which their work enters the public domain.
The European Union is actively converting
national patrimony into digital media to keep it in the public domain.
In the Anglosphere, however, much is being privatized including court
documents and even statutes. While technically they remain in the
public domain when digital value is added, e.g., pagination, such works
again fall under copyright. They become available on the world-wide web
only for a price but as noted by Patterson not all people have the coins
to make the turnstiles turn.
Patterson was one of the Masters of
American copyright along with Benjamin Kaplan, Mel Nimmer, Alan Latman
and a few others. Unlike other Masters, however, Patterson takes an
explicitly political economic posture. He sees copyright as juxtaposing
free enterprise (economics) and free speech (politics) defined as access
to knowledge or ‘the right to hear’(Patterson & Birch 2009, 301). He
stresses that the purpose of copyright is to foster learning through
access to knowledge. This is so specified in the title of the first
modern copyright act, the 1710 Statute of Queen Anne, and the title of
the first U.S. copyright act of 1790.
To emphasis ‘the right to hear’ Patterson
quotes President George Washington in a speech delivered just before
enactment of the first U.S. copyright act. In it the President stressed
that access to knowledge ensures accountability to the people “by
teaching the people themselves to know and to value their own rights; to
discern and provide against invasions of them.” Such invasions included
not just those by government but also by the private sector where profit
is king. He knew full well how copyright was used in England for nearly
three centuries under Anglican, Catholic and Cromwell’s rule to control
political and religious debate, a.k.a., the public domain. The
President knew full well of the highly profitable and perpetual
copyright monopoly enjoyed by the Stationer’s Company of London under
all these regimes meaning there was no public domain, i.e., no free
Like the Statute of Queen Anne the original
American copyright act was intended to foster learning by growing the
public domain and prevent its monopolization, not maximize private
profit. Between 1710 and 1976 Patterson argues copyright roughly
attained its purpose. With the 1976 amendment of the American Copyright
Act, however, things changed. Patterson fears that perpetual copyright
is returning threatening freedom of speech yet again.
IPR case law, especially in the United
States, often leads to legislative initiatives sometimes sponsored by
and sometimes drafted by industry itself:
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. If we intend the law to apply to individual end users’
everyday interaction with copyrighted material, however, we will need to
take a different approach... There are, [however], 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
In the U.S. this tendency found expression
in the so-called Mickey Mouse Copyright Act, or formally the 1998
Copyright Term Extension Act. It is so-called because the Disney
Corp. lobbied to keep the early Mickey Mouse out of the public domain
where any and all could play with him. More recently in 2005 the
relationship surfaced in California where:
… California's attorney general, Bill
Lockyer, floated a letter calling peer-to-peer file-sharing software -
long the bane of the entertainment industry's interests - a dangerous
product. But a peek at the document's [digital] properties revealed
that someone dubbed stevensonv had a hand in its creation.
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
To appreciate the scale of legislative
initiatives following U.S. signature of the 1996 WCT/WPPT, many
resulting from industrial lobbying, consider Appendix A. This lists 40
copyright related bills proposed and 7 public laws passed by the 105th
and 106th Congress between 1997 and 1999.
In Canada a similar relationship between
industry and the legislature has been suggested and reflected in Bill 32
(2010) and its predecessors – Bill 61 (2008) and Bill 60 (2005). In
contrast to the U.S., however, between 1997 and 1999 in Canada only
eight copyright related bills were proposed of which three were
enacted. Four were private members bills and one government bill in
First Reading; none received Royal Assent. Three statutes, however, did
receive Royal Assent including two housekeeping amendments and S.C 1997,
c. 24 An Act to Amend the Copyright Act, the first major
restructuring of the Act in 76 years. Transmission rights were arguably
the focus. None of the eight proposed and enacted statutes dealt with
ratification of WIPO’s 1996 WCT/WPPT.
If ISPs are the modern equivalent of
printing members of the Stationers’ Co. then media conglomerates –
global and national – are the booksellers. It is they who hold
copyright on the majority of content – audio-video recording, broadcast,
Internet, print, et al. They are principally concerned with
piracy of their copyrighted properties especially on the increasingly
ubiquitous and digitally converging Internet.
Legislation such as the Digital Millennium
Copyright Act makes it illegal to break digital locks on copyrighted
content. It also grants copyright owners powers of digital search and
seizure reminiscent of the Stationers’ Company. In turn this has led to
a new legal calling – the copyright troll supported by forensic software
companies. These are arguably analogous to the informers employed by
the Surveyor of the Press in 1660 and their predecessors. Fines were
usually split with half going to the informer and half to the Crown.
As in the Stationers’ Company the interests
of printers/ISPs and booksellers/ media conglomerates do not always
conform. Hence ISPs in a number of countries are legally resisting
conducting digital search and seizure for copyright proprietors.
The relationship between the Crown or State
and media conglomerates is further complicated by the unique
contribution the media can grant a campaigning politician – good or bad
press. Licensed by the State the media industry nonetheless thereby has
a unique political economic relation to it, i.e., political power
translates into economic profit and economic profit translates into
This political economic relationship
extends to legislation favourable to the profitability of the industry.
As noted by Litman, among others:
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. (Litman 1996).
A coincidence of interest between the State
and copyright proprietors may also develop. For example, digital search
of internet records by agents of copyright holders may uncover obscene
or terrorist-related content. If this information is disclosed to the
authorities then copyright holders will act as a policing agent for the
State just like the Stationer’s Company.
Natural rights is simple nonsense; natural and impresciptable rights, nonsense
For our purposes, however, Bentham’s
concept of and impact on Anglosphere Law is at issue. In his anonymous
1776 Fragments on Government Bentham criticized Blackstone’s
concept of Law rejecting Natural Law as ‘an abuse of language’. This
was, of course, the same year that Adam Smith published the Wealth of
Nations and the American Revolution began. Then in 1791 in his
Anarchical Fallacies, a commentary on the French Revolution’s
Declaration of the Rights of Man, he noted “Natural rights is simple
nonsense; natural and imprescriptible rights, nonsense upon stilts…”
And in the Constitutional Code of 1830 he rejected the Bills of
Rights as useful only as a check on non-democratic governments. He
rejected it as limiting “legislative omnicompetence… in contradiction to
the greatest happiness principle.”
Benthamism had a somewhat different impact
in the U.K. and the U.S. In both, however, it was extremely influential
in juristic studies downgrading Natural Law. And in both Bentham’s
demand for an efficient and highly centralized public administration
laid the foundation for the modern service state.
In the U.K., however, Benthamism also
provided a distinct English road to democracy. Given the Napoleonic
Wars no doctrine tainted with Jacobinism could win public acceptance.
The path to reform could not include discussion of a social contract,
natural rights, rights of man or liberty, fraternity, and equality.
Benthamism satisfied this requirement.
In the U.S., by contrast, the
Declaration of Independence and the subsequent Constitution
were both rooted in Natural Law – life, liberty and the pursuit of
happiness. Perversely, at the constitutional level Benthamism was used
in America to justify slavery, the fate of which was, of course,
determined by the Civil War.
In both, however, Bentham’s rejection of
Natural Law and Natural Rights tainted and continues to taint
Anglosphere Common Law. This makes recognition and implementation of
imprescriptible moral rights for artists/authors/creators a much rougher
road to hoe.
Official Censorship &
Harvey (2005) argues that it took more than
250 years from the introduction of censorship in 1401 and almost 200
years from introduction of the printing press in 1476 for the Crown to
introduce licensing laws in 1662 b that recognized the true nature of
print. Practices developed to censor the old manuscript technology
continued in progressively modified form but remain focused on content
not the physical media itself – the printing press. Only gradually did
the importance of carpenters, joiners, smiths & letter founders become
apparent to the censors.
The constant, however, across three
centuries and two communication media was the Stationers’ Company of
London. From the Oxford Constitutions of 1407, Catholic Mary I’s
Charter of 1557, Anglican Elizabeth I’s confirmation of that Charter in
1588, Puritan Cromwell’s 1653 assent to search and seizure by the
Company, Charles II’s amplification of the Charter in 1684 and William
and Mary’s confirmation in 1690, the Stationers’ Company worked
hand-in-glove with the Crown to enforce licensing, a.k.a., censorship.
Courts changed from prerogative to Common Law but policing including the
power of search and seizure remained firmly in the hands of the Company
as well as its own guild court to try members of the Company offending
the licensing laws (See for example 1693 b).
Harvey (2005) and Patterson (2003/3), among
others, argue, that the licensing system failed. Illegal, legal and
foreign presses pumped out what the Crown considered licentious,
seditious and treasonous libels throughout the period.
With expiration of the Licensing Act in
1695 and the Statute of Queen Anne in 1709 the Company’s role in
censorship came to an end. Nonetheless the problem of libels and
licentious works continued. The response was two-fold.
First was the Stamp Act of 1711. Paper is
a tied good in printing and paper now required an official stamp before
printing together with a tax paid to the Crown. This permitted a form
of forensic investigation. Works on unstamped paper immediately
attracted the attention of the authorities because of tax evasion.
Works on stamped paper, on the other hand, allowed relatively easy
identification of the printer if not the actual but often anonymous or
pseudonymous author of libellous and seditious works. Second, such
works were denied copyright registration and protection by provisions
like that contained in the Revised Statutes of Canada of 1906:
7. Exception to immoral works
No literary, scientific or artistic work
which is immoral, licentious, irreligious, or treasonable or seditious,
shall be the legitimate subject of such registration or copyright.
R.S. 1906, c.70, s. 7
Today in the Anglosphere censorial concerns
focus on ‘kiddy porn’ and ‘how-to’ terrorist works. As with the
Licensing Act of 1662 b it is the technology, not the bookseller and
content, which is the focus. In this era printers take the guise of
Internet Service Providers or ISPs. And the forensic instrument of
choice, the new stamp so to speak, is the ISP address associated with
every web communication.
For example, the proposed Great Fire Wall
of Australia is intended to filter from public view foreign porn and
terrorists web sites. India, the United Arab Emirates and other
Nation-States are pressing Blackberry to open its servers to search for
and seize seditious, treasonous and terrorist encrypted communications.
Reports of Interpol and related police
successes against global child porn on the Web are now almost daily
news. And for decades digital filtering and customs barriers have
permitted Islamic States to censor inappropriate cultural images
especially of women. The national right to censor inappropriate foreign
content is recognized in a number of multilateral treaties including
explicit exceptions from the free trade requirements of the General
Agreement on Tariffs and Trade (GATT). On these subjects, at least,
ISPs and Government work hand in glove like the Stationers’ Co. and the
Crown. The pragmatic reason is licensing of ISPs and telecommunications
in general is a Crown or State prerogative: Comply with the Government’s
request or lose your license and possibly go to jail.
Patent Thickets & Wars
In the case of patents, some corporations
spend enormous sums of money on research projects that fail for one
reason or another. Nonetheless, everything that can be patented is
patented. These patents may be retained or sold to a patent holding
company of one form or another – a patent troll of which more below. If
a rival or competitor emerges who subsequently succeeds in making the
technology work then that competitor may be charged with patent
infringement. Whether the charge is valid or not, the rival faces
enormous legal costs defending itself or settling out of court. Both
ways, competition is restrained and innovation inhibited.
Similarly, on a battlefield a thicket is a
dense concentration of bush that impedes an opponent’s advance. A
patent thicket is an overlapping set of patents that require innovators
to license multiple patents from multiple sources. It is similar to
‘patenting around’ a primary patent.
When a large company holds many patents it
makes it difficult to innovate without infringing numerous patents.
Acquiring patents is slow and expensive so established firms will
always have many more patents than start-ups. Microsoft, for example,
holds more than 20,000 patents. Assuming each cost $20,000 in legal
work then they represent a cost of $400,000,000 to Microsoft.
Some argue that patent thickets owned by
established companies act as a tax transferring wealth from today's
innovators to innovators of the past. The problem became acute with the
granting of software patents in the 1980s. Much criticism has been
lodged that such patents are often weak and too wide in scope due to
poor oversight by the Patent Office. Such critics argue that a new
legal mechanism is needed to invalidate such low-quality patents.
Together with primary patents, patent
thickets can be used for defensive and offensive purposes. If accused
of infringement by another firm, a patent thicket may be presented
through which the court must plow to determine if any are relevant to
the case at hand. Alternatively a start-up firm may be accused and
presented with a similar thicket of claims which make it too expensive
and the start-up is stopped or often absorbed by the larger firm. The
recent auction of Nortel’s patent holdings is example of firms building
up thickets of patents with which to defend themselves or attack
competing firms. I attach a recent article on the subject entitled “Large
patent holders hate this reform proposal. That’s a good sign” by
Timothy B. Lee, September 24, 2013, Washington Post.
The 1709 Statute of Queen Anne was
intended, among other things, to end perpetual Stationers’ copyright –
the right to copy. The term was limited to 14 years with a possible
extension of another 14 if the author was still alive. This time
limitation was intended to encourage learning by growing the public
domain of knowledge as quickly as possible.
Thomas Jefferson, some 80 years later,
proposed a slightly longer term based on the principle “the earth
belongs in usufruct to the living” computing it at 19 years using
actuarial tables (Jefferson, Letter to James Madison, September 6,
Since that time, however, the duration of
copyright in the Anglosphere has been progressively extended to about
…This term of protection is the equivalent
of three generations, or perhaps now four. While a copyright for
multiple successive generations is not perpetual, it feels very much
like a way-station on the road to infinity and thus presents a problem
in view of the constitutional requirement that copyright be granted only
for limited Times. (Patterson & Birch 2009, 273)
This extension has resulted partially from
the ‘alien’ influence of European artists and authors who inspired the
Berne Convention of 1886. Such artists and authors, however, did not
and do not create under Common Law copyright but rather under Civil Code
‘rights of the author’. These include impresciptable moral rights of
the Natural Person that no Legal Person can enjoy. Moral rights include
employees. Such rights cannot be assigned or waived in favour of a
proprietor. Anglosphere creators do not enjoy such rights so the
benefit of term extension falls inequitably to proprietors (Paterson &
Near perpetual copyright is ironic in this
digital age wherein information processing or computing power doubles
every 18 months according to Moore’s Law and computer programs have a
functional shelf life of perhaps 5 years but remain protected by
copyright for 100.
Printing Patents and
The printing patent or license was a
privilege granted directly by the monarch to an individual - sometimes
but not usually the author of a work - or to an organization including
the Stationers’ Company. Its term could be fixed or granted in
perpetuity therefore becoming inheritable property. It granted ‘the
right to a copy’ that being either a specific title or an entire class
of works such as the statutes, almanacs, etc.
Recently in the United States digital
conversion of a whole class of works called ‘orphaned works’ came within
the decision of a single lower court judge to being, in effect, licensed
to one company – Google. Orphaned works are those still under copyright
but whose owner and/or author cannot be located. The licensing of this
entire class of works to a single company was opposed by a number of
parties including the European Union. While finally denied by the judge
in this specific case, it is not clear how licensing of entire classes
of works will legally develop in the United States and elsewhere. It is
clear, however, that this pre-Common Law concept retains some currency
in the post-Common Law era.
The 1886 Berne Convention established a
clear distinction between artistic & literary works and ‘industrial
property’ such as patents, registered industrial designs and
trademarks. These were the subject of the first multilateral
intellectual property agreement, the 1883 Paris Convention for
Protection of Industrial Property
The distinction between ‘machine readable’
and ‘human readable’ code, a.k.a., software, fuelled a 1970s
Canadian debate about software copyright (Keyes & Brunet 1977).
Human-readable code conveys meaning from one human mind to
another. Such are the works traditionally protected by copyright. The
paintbrush, chisel or pen used to make the work does not receive
A computer program, while codified and
fixed in a communications medium, is intended to be decoded by a machine
not a human mind. It is intended to manipulate the flow of electrons in
a circuit. In turn, such circuits may activate other machines, e.g.,
industrial robots in steel mills, auto plants and fabricating
industries. It fixes knowledge as function, not meaning.
It is executable code. It is the paintbrush not the painting.
A distinction can, however, be made between
‘executable’ and ‘base’ code. Executable software code is machine
language, i.e., it is read by a machine. Base code is what the
human programmer uses to ‘write’ the program. In this sense it is in
human-readable form. Nonetheless the intent is not for the work to be
read by another human being, excepting ‘proof-reading’, but rather to
become functional instructions for a machine, i.e., it conveys
function not meaning. Nonetheless, what is the legitimate
subject of copyright is, for example, what is displayed on the screen
and ‘read’ by a Natural Person, not the software itself.
Similarly, genomic software is being
codified and fixed into communications media intended to be decoded by
machines and molecules, not a human mind. It is intended to manipulate
the chemical bonds of atoms and molecules to analyze or synthesize
biological compounds and living organisms with intended or designed
characteristics. It likely qualifies for copyright protection under the
existing legal regime.
Extension of Canadian copyright to computer
software, in 1988, meant that software would be treated as an artistic
or literary work. Extension of patent protection to software, however,
makes it the only work protected by both.
extension was, however, also accompanied by inclusion of unpublished
works. Previously the price of copyright was publication; afterwards
protection became available without publication. As will be seen, this
has implications for software including the competitive ability to keep
critical code from competitors and application creators as a trade
secret while enjoying copyright protection. Accordingly, software
crosses the legal divides separating copyright, patent and trade secret.
The impact of this unholy trinity of
protection is demonstrated by the anti-trust case against Microsoft.
In one generation software copyright has
become the legal foundation for a massive global industry.
example, is now one of the largest and most profitable corporations in
the world. Its foundation is copyright in the Windows operating program
and Office suite of business applications.
Using well documented ‘sharp practices’ and
playing off the ineptitude of competitors Microsoft now dominates the
market. It has, de facto, established its products as industrial
standards. As the standard all other products must be compatible if
they are to succeed in the marketplace. To Microsoft’s credit this
standardization has and continues to facilitate the growth and spread of
computer-mediated learning as well as the underlying techno-economic
regime supporting it, e.g., Wintel CPU’s, sound and video cards,
WWW, et al. In short, Microsoft exercises market power.
In this regard, the first ‘W’ Bush White
House, in 2000, faced an anti-trust case against Microsoft for alleged
abuse of its market position brought by the previous Clinton
Administration. The new Administration decided on regulatory and
procedural penalties. The option of breaking up one of America’s
largest and most profitable exporters was dropped.
In addition, Windows and Office are used
extensively by foreign governments and corporations around the world.
This provides the U.S. with a potentially powerful geopolitical weapon.
Compliance with changing U.S. security requirements could allow Windows
and Office to act as Trojan Horses – gifts bearing Greeks - in the
accelerating information wars of the 21st century. At the extreme,
‘enemy’ computers could be remotely shut down using hidden ‘trap doors’
with devastating economic and military effect.
In the European Union, however, more
serious penalties were applied to Microsoft and more threatened. In
addition to massive fines, Microsoft is required to open up its
‘’interface’ code to competitors to allow their products to work
smoothly with Windows and thereby compete in the marketplace. This
’interface’ was unpublished and treated as a trade secret by Microsoft
as remains the case for the ‘kernel’ of its operating system.
Arguably where market dominance has been
attained by a software firm, the EU now requires publication of
interface codes. They must be dedicated to the public, i.e., be
published. The inner workings or kernel of such software, however,
remain a trade secret. Nonetheless, EU case law may soon cause a tidal
wave of change in the global software industry. The irony is that,
among others, it was American corporate competitors who called on the EU
to act against Microsoft. Its decision may soon come back to haunt some
As demonstrated, software is ‘soft-tooled’
knowledge fixing function not meaning into matter/energy.
In this sense it qualifies for patent protection. Software also fixes
instructions as code into a communications medium intended to be decoded
by a machine not a human mind. Nonetheless, at present, it qualifies
for copyright. And, because unpublished works also claim protection
some code qualify as trade secrets.
difference in term or duration of protection is striking. In Canada the
term is 20 years for a patent and 50 for a corporate copyright, i.e.,
one claimed by a Legal rather than a Natural Person. In the U.S. it is
20 years versus 70. A trade secret, on the other hand, is potentially
perpetual never entering the public domain.
Taken together this analysis suggests that
software – computer (dryware) and/or genomic (wetware) – is a sui
generis work – a one-of-a-kind work - deserving its own intellectual
property classification rather than receiving a blend of copyright,
patent and trade secret protection.
There are both copyright and patent
trolls. In the case of patents, some corporations spend enormous sums
of money on research projects that fail for one reason or another.
Nonetheless, everything that can be patented is patented. These patents
may be retained and built into thickets or sold to a patent holding
company or ‘non-operating entity’ of one form or another – a patent
troll. If a rival or competitor emerges who subsequently succeeds in
making the technology work then that competitor may be charged with
patent infringement. Whether the charge is valid or not, the rival
faces enormous legal costs defending itself or settling out of court.
Both ways, competition is restrained and innovation inhibited. The
effect has been noticeable with most U.S. patent infringement cases
being lodged by trolls. Recently some major tech firms have used their
patent thickets to stop start-up firms in their tracks. Some
start-ups, in turn, are beginning to sell equity in their patents to a
troll who has sufficient resources and legal expertise to defend their
rights. The problem of patent trolls is now being address by the U.S.
Copyright trolls are essentially law firms
that contract content producing firms such as newspapers, film and sound
recording producers to patrol the internet for cases of infringement.
Whether such infringement is done for commercial or other reasons
letters are sent out accusing a party or a firm of copyright
infringement. They are asked to pay a penalty or go to court. U.S.
courts have minimized the impact of copyright trolls for two reasons.
First, in most cases a troll does not in fact hold the copyright and
only the copyright holder has standing before the courts. Second, the
surveillance technology used to identify an ISP address is subject to
error, e.g., a Wifi channel can be hacked or otherwise accessed
without the knowledge of an alleged infringer. It is likely, however,
that both problems will be resolved in future and copyright trolls may
gain the same prominence as patent trolls.
Implications for the Knowledge-Based
The ever increasing importance of
intellectual property rights is best illustrated by the recent
adjustment by the Bureau of Economic Analysis within the Department of
Commerce in Washington to adjust American calculation of Gross Domestic
Product – the sum total of domestically produced final goods and
services. Specifically, research & development (patents) as well as
creative works (copyright) are to be henceforth treated as investment
goods as well as final goods and services. This includes royalties from
movies, TV, books and music, as well as money spent on research and
development. The U.S. is the first country to account for so-called
‘intangible assets’. This is the biggest change since computer software
was introduced into GDP calculations in 1999. U.S. GDP just went up 3%
billion. Please see:
Other than growth in GDP, intellectual
property rights have significant implications for income distribution in
the emerging knowledge-based economy. One economic implication of the
Copyright Act concerns employment in a knowledge-based economy. Under
the existing Act, copyright and moral rights belong to the employer, not
the employee, similarly under Crown copyright. Under the Civil Code, an
employee retains moral rights over his or her work and may even enjoy
some ‘neighbouring rights’. Such Civil Code rights include droit
d’suite (% rights of following sales of works of art), exhibition
rights, public lending rights and other revenue streams that go directly
to the Natural Person. They are not available to Legal Persons.
While the traditional manufacturing economy
boasted life-long employment, the knowledge-based economy is
increasingly characterized by contract work and self-employment. The
pervasive use in the Anglosphere of blanket or all rights licences
extinguishes all future claims of the creator. If such trends continue,
it can be expected that income distribution for contract and
self-employed 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 1990).
Furthermore, their income distribution is not a pyramid with a broad
base, wide middle and a peak. Rather it is an obelisk with a huge base
of poor ‘starving artists’, a thin column of middle class survivors and
a tiny peak earning enormous sums, e.g., Pavoratti. This could
be the future of the knowledge-based economy - no middle class.
Another implication of the current status
of intellectual property rights in the Anglosphere concerns the
University. Elsewhere I have written of
The Third Age of
The University: From Interpretation to Generation to Commercialization
of Knowledge, Journal
of the World Universities Forum, Vol. 1, 2008. The first age from
about 1100 CE to 1813 the role of the University was essentially
interpretation of old knowledge and training a ruling class. The second
age began in Germany with Wilhelm von Humboldt founding the first
‘research’ University at Berlin in 1809. Its mandate was generation of
The Third Age of the commercialization of
knowledge formally began with the OECD’s 1997 National Innovation
Systems. Unmentioned in the article, however, was its informal
beginning in 1980 with The Bayh–Dole Act or Patent and
Trademark Law Amendments Act (Pub. L. 96-517, December 12, 1980).
The Act permits a U.S. university, small business, or non-profit
institution to patent an invention even if its development was federally
funded. In the article I treat a number factors contributing to the
paradigm shift. For now I offer the article’s Conclusions:
In conclusion: How will the Third Age of
the University unfold? What is the probable vs. preferred future?
The probable future is an extension of
current trends, i.e., path dependency and precedent. With
respect to teaching, ‘vocationalization’ continues. There are no more
‘Liberal Arts’. Only ‘can-do’ knowledge will do. With respect to
research, specialization accelerates incommensurability with little
cross-talk between disciplines. We know more and more about less and
less. Research becomes increasingly utilitarian, i.e., valued
not for itself but for what it can earn. The University uses
increasingly restrictive intellectual property rights to gain revenue
from all new knowledge generated by its employees – the professoriate.
Copyright joins patents as an asset shared between employer and
employee. At the same time, researchers in ‘can-do’ disciplines forge
ties with Business sometimes suppressing critical knowledge until
exiting the University. Researchers in ‘no-can-do’ fields fade away
like natural philosophers. The ‘ivory tower’ becomes a factory
producing knowledge workers and new knowledge to feed Business and the
competitiveness of nations in a global knowledge-based economy.
Alternatively, the preferred future is
rooted in preference. My preference is to apply lessons from the
emergent fourth epistemic revolution – genomics/bioinformatics. In
fact, the University is, for the first time in its history, the eye of
the epistemic storm. As we learn to inject living things with human
purpose we begin to appreciate that over-specialization reduces fitness
defined as adaptability to a changing environment. Fitness requires
flexibility and redundancy. It requires breadth and depth. It requires
integration of incommensurable streams of knowledge like successful
innovation in industry (The Economist Oct. 11, 2007). Arguably, the
University is the natural home for such synthesis – all knowledge
domains and practices are present.
In its struggle to survive as an autonomous
agent, the University confronts a fitness landscape in which it must
dynamically balance three mandates: (1) interpretation of all
knowledge domains and practices; (2) generation of new knowledge as
an-end-in-and-of-itself; and, (3) commercialization of knowledge – old
and new - to tactically resource (1) and (2) and thereby minimize
unsolicited political and economic intervention. This requires,
however, realignment of self-interest within the University itself –
administration, professoriate (including emergent entrepreneurial
scientists) and students – old and new. This, in turn, however, assumes
a common objective: to maintain the University as a politically and
economically autonomous agent of social change in its Third Age.
To 6.0 Online Reading List