Intellectual Property: a further restriction on personal freedom
Professor Noam Chomsky of the Massachusetts Institute of Technology’s contribution is based on a Q&A session held on 22 April last year at Washington State University. Tristan Miller provides a commentary from a socialist perspective on the following page.
Guaranteeing corporate profits
The relation of intellectual property to personal freedom and its place in public and academic settings is an interesting topic with an interesting history.
The Uruguay Round that set up the World Trade Organization imposed what is called a free trade agreement, but which is, in fact, a highly protectionist agreement (the US and business leaders being strongly opposed to free trade and market economies, except in highly specific ways beneficial to them). A crucial part of this agreement was the establishment of very strong “intellectual property rights”. What this actually means is rights that guarantee monopoly pricing power to private tyrannies.
For example, consider a drug corporation. Most of their serious research and development – the hard part of it – is funded by the public. In fact, much of the dynamism of the world’s economy comes out of public expenditures through the state system, which is the source of most innovation and development. There is some research and development in the corporate system, but it’s mostly at the marketing end. And this is true of the drug industry. Once the corporations gain the benefit of the public paying the costs and taking the risks, they want to monopolize the profit and the intellectual property rights. These rights are not for small inventors. In fact, the people doing the work in the corporations don’t get much out of them; at best, they would receive a small bonus if they invent something. It’s the corporate tyrannies that are making the profits and they want to guarantee them.
The World Trade Organization proposed new, enhanced intellectual property rights – patent rights – far beyond anything that existed in the past. In fact, they are not only designed to maximize monopoly pricing and profit, but also to prevent development. For instance, the World Trade Organization rules introduced the concept of product patents. It used to be you could patent a process, but not the product, so if some smart guy could figure out a better way of producing something, he could do it. The WTO wants to block this. It’s important to block development and progress in order to ensure monopoly rights, so they now have product patents.
Consider US history: suppose the colonies, after independence, had been forced to accept this patent regime. What would we Americans be doing now? First of all, there would be very few of us at all, but those of us who would be here would be pursuing our comparative advantage in exporting fish and fur. That’s what economists tell you is right – pursue your comparative advantage. That was our comparative advantage. We certainly wouldn’t have had a textile industry. The British textiles were far cheaper and better. Actually, British textiles were cheaper and better because Britain had crushed Irish and Indian superior textile manufacturers and stolen their techniques. They therefore became the pre-eminent textile manufacturer, by force of course. In actuality, the US does have a textile industry which grew up around Massachusetts. But the only way it could develop was by extremely high tariffs which protected unviable US industries. Our textile industry developed and later had spin-offs into other industries. And so it continues.
We would never have had a steel industry either, for the same reason: British steel was far superior. One of the reasons is because they were stealing Indian techniques. British engineers were going to India to learn about steel-making well into the 19th century. They ran the country by force so they could take what the Indians knew and develop a steel industry. In order to develop its own steel industry, the US used massive government involvement through extremely high tariffs and the military system, as usual.
This system continues right up to the present, and furthermore it’s true of every single developed society. It’s one of the best-known truths of economic history that the only countries that developed are the ones that pursued these techniques. There were countries that were forced to adopt free trade and “liberalization” – the colonies – and they got destroyed. The sharp divide between the first and the third worlds has really taken shape since the 18th century. And maintaining this divide is what intellectual property rights are for. In fact, there’s a name for it in economic history: Friedrich List, the famous German political economist in the 19th century, who borrowed his major protectionist doctrines from Andrew Hamilton, called it “kicking away the ladder”. First you use state power and violence to develop, then you kick away those procedures so that other people can’t do it.
Intellectual property rights have very little to do with individual initiative. Einstein didn’t have any intellectual property rights on relativity theory. Science and innovation is carried out by people who are interested in it; that’s the way science works. However, there’s been an effort in very recent years to commercialize it, much the same way everything else has been commercialized. So you don’t do science because it’s exciting and challenging, because you want to find out something new, and because you want the world to benefit from it; you do it because maybe you can make some money out of it. You can make your own judgment about the moral value. Personally, I think it’s extremely cheapening, but also destructive of initiative and development.
It’s important to note that the profits from patents commonly don’t go back to the individual inventors. This is a very well-studied topic. Take, for example, the well-studied case of computer-controlled machine tools, which are now a fundamental component of the economy. There’s a very good study of this by David Noble, a leading political economist. What he discovered is that these techniques were invented by some small guy working in his garage somewhere in, I think, Michigan. After the MIT mechanical engineering department learned about it, they picked up these techniques and developed them and extended them and so on, and the corporations came and picked them up from MIT, and finally it became a core part of US industry. Well, what happened to the guy who invented it? He’s still probably working in his garage in Michigan or wherever it is. And that’s very typical.
I just don’t think intellectual property has much to do with innovation or independence. It has to do with protecting major concentrations of power which mostly got their power as a public gift, and making sure that they can maintain and expand their power. And these highly protectionist devices really have to be rammed down the public’s throat. They don’t make any economic sense or any other sense.
Neither do I think that intellectual property should play any role in academic and public institutions. In 1980 the Bayh-Dole Act gave universities the right to patent inventions that came out of their own research. But nothing comes strictly out of a university’s own research; it comes out of public funding. That’s how the university can function; that’s how their research projects work. The whole system is set up to socialize cost and risk to the general public, and then within that context, things can be invented. But I don’t think universities should patent them. They should be working for the public good, and that means the fruits of their research should be available to the public.
No amount of legislation can change the basics
To most people today, the notion that ideas or information can be owned seems as natural as owning a house or a bicycle. We are brought up to believe that when someone writes a book or piece of music, or develops plans for a new invention, they become that work’s sole owner. This means that they alone have the right to determine whether and how that work is used by other people, or the right to transfer ownership of the work to another person or a company. Only the owner is allowed to make and sell copies of the work, to incorporate it into a collection of other works, or to produce a new work based on the original, such as a new edition or a sequel. These “rights”, as they are called, are encoded not just in our laws, but increasingly, as we shall see, in our social norms and our technology.
However, the world did not always work this way. To people in the Ancient world and in Mediaeval times, the thought that anyone could claim ownership and control of something intangible like a poem or an idea would have seemed ludicrous. Philosophers and mathematicians regularly borrowed, critiqued, and expanded upon the works of their colleagues; historians compiled and summarized descriptions of events recorded by others; and musicians performed existing songs while adding their own embellishments. Written works were copied freely (albeit laboriously) by trained scribes, and technological improvements diffused gradually among artisans through word of mouth.
To someone from the past, then, today’s intellectual property regime would seem terribly restrictive. Had Shakespeare been told he could not copy and rework material from other playwrights, he would have seen this as a tyrannical imposition on his personal freedom as an artist. What’s more, we would have been robbed of many of his greatest works, including Hamlet and King Lear, both of which were adaptations of other authors’ plays. What was it that changed, then, between Shakespeare’s time and ours, to allow us to think of information and ideas in the same terms as physical property? And more importantly, is our society more or less free as a result?
The answer to the first question is relatively simple when we look at things in their historical context. In the century preceding Shakespeare, two great developments began sweeping across Europe, one technological, the other socio-economical. The first of these was mechanized printing, introduced by Johannes Gutenberg in the 1450s. Books and pamphlets suddenly became easy and cheap to reproduce, and with their abundance literacy and authorship increased. The second development was the capitalist mode of production, which was by fits and starts beginning to replace the old feudal system. Trained scribes who used their own inexpensive tools for copying manuscripts were replaced by relatively unskilled workers who operated a costly printing press owned by their employer. Few authors could afford a press to print their own books, and the wealthy publishers who owned the presses depended on a steady supply of new literature to drive their sales. Therefore, authors and publishers entered into an agreement whereby the publisher supported the author financially in exchange for printing their book and retaining the profits from its sale.
Though a few popular authors became quite wealthy through this arrangement, the vast majority were not significantly better off than the rest of the labouring class. As with any employment relationship, it was not in the publisher’s interest to pay authors any more than required for their upkeep, thus forcing them to either continue writing or seek other employment. To prevent authors from securing payment from more than one publisher simultaneously and to prevent rival publishers from cutting into their profits, publishers in the 17th and 18th centuries pressured governments to enact laws recognizing a publisher’s exclusive ownership and control (“copyright”) of a literary work. (Initially this ownership rested with the author, though as it was useless to anyone without a press, he invariably assigned it to a publisher.) Similar laws were enacted granting monopolies on “any manner of new manufactures” – that is, patents – which again were beneficial primarily to those who already had the capital to exploit and defend them.
For professional writers, artists, and inventors, then, copyrights and patents – collectively referred to as “intellectual property” – are simply a specialized legal formalization of the wage-labour exchange other workers are forced to make with their employers. Just as manual labourers, lacking the means to produce and distribute their own products, must sell their labour power to a factory owner for an hourly wage, writers, lacking a printing press and bookstore, sell the copyright on their writing to a publishing house for a lump sum or nominal royalty. And just as manual labourers selling their labour power must waive ownership of the goods they have produced and the freedom to use them as they see fit, so too do writers selling their copyright lose the freedom to use their writing as they wishes. If a writer wishes to adapt or incorporate elements of another book – even one that they themself originally wrote – into a new work, they must first secure (and often pay for) permission from the publisher who owns the copyright. Given that the free and fruitful exchange of ideas and information was commonplace before intellectual property, it is difficult to argue that these laws have done anything other than rob artists and scientists of their personal freedom to learn from and interact with each other.
And what of the rest of us, those of us who do not make our livings writing, performing, or inventing? Has the intellectual property regime affected us in any way? Until relatively recently, the answer was not much, or at least, not personally. Intellectual property was simply a legal fiction allowing corporations to stake their various claims to “properties” in the information market. How the capitalists decided amongst themselves who had the right to produce what had little bearing on the individual freedom of the average worker, who owned neither presses to print books nor factories to mass-produce new machines . Technically it was illegal for a worker to make a copy of a book, but since it would take them weeks or months to do so by hand, the publishers’ profits were not threatened and no injunction was sought.
With the advent of home computers and the Internet, however, the entire working class suddenly found itself in possession of the same sorts of instruments of production and distribution that had previously been exclusive to wealthy publishing houses. Once a book or piece of music had been put into digital form, anyone could instantly produce unlimited copies with the click of a button and instantly send them anywhere in the world. Alarmed at the threat to their monopolies and their profits, publishers began to take notice. Criminal and civil lawsuits were brought against individuals who downloaded music from the Internet or copied software for their friends. Publishers launched wide-scale public “education” campaigns to convince people that unauthorized copying was akin to theft or even to piracy on the high seas. The full force of the law and corporate propaganda apparatus was applied to preventing workers from exercising their new-found ability to produce and distribute intellectual property on a massive scale.
At this point, one could well argue that people technically had not lost any of their personal freedoms, since by law they were never free to copy information in the first place. This changed, as Noam Chomsky notes, with the passing of increasingly restrictive laws in the late 20th century. Now it is a crime not just to copy a digital work, but also to use it in any way not authorized by the publisher. Many of the freedoms people enjoyed with printed books and analogue audio and video recordings no longer apply to their digital counterparts. A publisher can arbitrarily decide that a particular e-book can be read only a certain number of times, or only up to a certain date, or only on a certain device, making transfer to a friend or donation to a library impossible. These restrictions are hard-coded into the device or software which reads the e-book, and modifying the software or inventing a new device to circumvent these restrictions is a criminal offence.
In conclusion, Prof. Chomsky is correct in his identification of today’s intellectual property system as a way of granting legal monopolies to corporations. And I applaud him for speaking out against the worst excesses of companies exploiting the patent system in the name of maximizing profits. But by focussing on and attacking only recent intellectual property law reforms, it is easy to fall into the trap of suggesting that the system could be “fixed” simply by repealing these reforms or otherwise tweaking the laws. As I hope I have shown here, from their very beginnings copyrights and patents have existed to benefit only that small minority of people who owned the presses, warehouses, and stores through which books and other media are reproduced and distributed. Any benefit to the inventors and authors who actually produce inventions and artistic works is incidental, and furthermore comes at the cost of stifling cross-pollination of ideas and the progress it entails. No amount of legislation can ever change the fundamental relationship in production between the workers, who produce almost all of the world’s artistic and scientific wealth, and the rich minority who control the means of disseminating this wealth. Therefore workers have no stake in the intellectual property regime and should work only for the abolition of the entire system that supports it.