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The end of the ‘Market/Marx Wars’ leaves us with
but one economic ideology, one secular faith - neoclassical market economics. Excepting North Korea, Cuba and
arguably Venezuela and Zimbabwe, no Nation-State publicly subscribes to economic
Marxism. Even as the People’s Republic of China struggles to reconcile private
property with the political clarity of Leninism sans Marx, it, and all other
Nation-States are current or expectant members of a World Trade Organization
(WTO) rooted in the ideology of the marketplace and private property. This
excludes, of course, the current ‘secular/religious’ wars waging around the
world. From our Cold War past, however, we have, nonetheless, inherited a global village
with four neighborhoods – the First, Second, Third and Fourth Worlds.
It should not, therefore, be surprising that just as the
former Second World of centrally planned
‘collectivist’
'one-size-fits-all' economies melted into a single global
marketplace, the First World of private
‘personal’ property shifted from a manufacturing-based to a knowledge-based
economy. And what property is more
‘personal’ than intellectual
property rights (henceforth ‘IPRs’)? Or, as 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.
Not only are IPRs the most personal and private
form of property, they are also the legal
foundation for the industrial organization of the knowledge-based economy -
copyright, designs, patents, trademarks, etc. They
constitute what Harold Innis calls the staple of such an economy. Innis
is arguably the founder of the only indigenous
school of Canadian
economics based on his ‘staple theory’. He studied Canada’s development - from
cod to fur to timber to wheat. Each staple, according to Innis, engenders a
distinctive patterning to the economy. Near the end of his career he moved on
to study ‘communications’ and its matrix concluding, in effect, that it is the
ultimate staple commodity.
Unlike other goods and services that
are defined by technical standards, IPRs are defined by law. And unlike public
support for production of other goods and services subject to ‘harmonization’
under the rules of the WTO, IPRs are subject to the milder constraint of
‘national treatment’. This means a country must extend to foreign creators the
same rights as granted to nationals. These rights, however, need not and are
not generally the same between countries. For example, the term of copyright in
Canada is life of the artist plus fifty years. In the U.S., it is life of the
artist plus seventy years. This means that the work of an American artist
will enter the Canadian public domain twenty years earlier than in the U.S.
Furthermore,
the average cost curve of a knowledge-based
economy is not the classical ‘U’ shape of manufacturing but rather it is ‘L’
shaped. Suppose that the first unit of Windows VISTA cost $500 million to
develop but the second and all subsequent units cost a $1.99. This highlights
the economic significance of copyright and IPRs. Without State-sponsored and
enforced IPRs the enormous initial investment required for many innovations
would be unprofitable. Arguably, however, the same holds for the individual
artist/creator. At the extreme, there is Van Gogh, the epitome of the mad
starving artist. He cut off his ear and sent it to his girl friend; spent much
of his life in an insane asylum; and, in return, he gave the world sunflowers
and starry nights for only $1.99 at the local dollar store.
IPRs, however, come in two dominant
and competing global flavours: Anglosphere Common Law and European Civil Code. Both limit
IPRs in Time after which all knowledge enters the ‘public
domain’
where it is available free for all. Both are also based on the ‘Person’ – natural or legal.
Under Anglosphere Common Law, however, natural and legal persons increasingly
enjoy the same rights. Under European Civil Code there are certain rights
that adhere only to a natural person. Such
‘moral’
rights are “inalienable, unattachable, impresciptible and unrenounceable”.
This difference reflects the different paths taken by the two great republican
revolutions of the 18th century.
While the American Revolution overturned the
ancient regime of subordination by birth it nonetheless adopted English Common
Law and precedent governing business including IPRs. In essence IPRs
in the Anglosphere are based on precedent. In the case of copyright, this
precedent is one of censorship, pre-publication licensing and grants of
industrial privilege. It is intended to propel works into the marketplace
by granting rights to secondary creators like publishers, recording companies
and motion picture studios. It is, in effect, trade regulation of a
State-sponsored monopoly. Its root is not the natural rights of the creator
cum the European Civil Code which primarily intends to promote culture.
The French Revolution, on the other hand,
overturned not just the ancient regime of subordination by birth but also the old French common law. It was
replaced by the Napoleonic Code or what became the Civil Code. It is a legal
code rooted in principle rather than precedent especially the principle of
‘natural rights’ as seen at the height of the 18th century Republican
Revolution, e.g., moral rights of creators. In effect, there
is a clash between the two dominant global IPR regimes, a clash between
principle (Civil Code) and precedent (Common Law). As human artifacts, of
course, both have strengths and weaknesses and both are less than ideal in
practice.
Many global IPR traditions, however, are not based on the person - natural or
legal. The
Fourth World of ‘aboriginal’, “indigenous’ or ‘native’ peoples has a
concept of collective or communal intellectual property existing in perpetuity,
i.e. not limited to the life of an individual creator plus some arbitrary
number of years after death. To tribal peoples, a song, story or icon does not
belong to an individual but to the collective. Rights are, however, often
exercised by only one individual in each generation, sometimes through
matrilineal descent.
Unlike the Third World, aboriginal
nations do not constitute ‘Nation-States’. They are therefore seldom
represented on the international stage. At present, ‘folkloric’ and ‘aboriginal
heritage rights’ have no standing in most courts of the world.
In the Third World (or ‘the South’)
there are historically varied traditions governing IPRs. Early Islamic
jurists, for example, recognized a creator’s rights and offered protection
against piracy. However, traditional Islamic law treats infringement as a breach
of ethics, not a criminal act of theft punishable by amputation of the right
hand. Rather, punishment took the form of defamation of the infringer and
casting shame on his tribe. Only in recent years have formal copyright statutes
been adopted in many Islamic countries, e.g.,
Saudi Arabia
in 1989.
In much of the Third World, however,
another tradition exists similar to that of the aboriginal peoples of the Fourth
World. This recognizes ‘collective’, ‘communal’ or ‘folkloric’ copyright. This
contrasts with the Western person-based concept. Folkloric IPRs
recognizes rights to all kinds of knowledge, ideas and innovations produced in
‘the intellectual commons’, e.g., in villages among farmers,
in forests among tribal peoples, etc.. Part of this constitutes ‘TEK’,
i.e.,
traditional ecological knowledge, infringed by Western-based corporations in a number of countries including
India.
It is the mission of Compiler
Press to compile into comparative format such cultural IPR traditions as well as national
intellectual property rights statutes and multilateral agreements, conventions,
covenants and treaties that define and constrain them. These are the
foundation of the global knowledge-based economy; they constitute the economic
constitution for knowledge workers in this brave new world.
Compilations
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