Why Intellectual Property? Why Now?

Considering the grave dangers facing humanity today, it might appear that Intellectual Property (IP), though loudly controversial, is at best a tempest in a teapot, at worst a diversionary tactic designed to focus attention away from more serious issues. Compared to environmental disaster, deepening social inequality, rampant state surveillance and war without end, dispute over copyright, patent and trademark seems trivial. Although media attention in recent years has increasingly focused on digital piracy, genetically modified foods, the patenting of the human genome, and other IP-related matters of obvious importance, IP remains an enigma. That capitalism is in a crisis of epic proportions is beyond doubt. What role IP plays in this crisis, however, is anything but clear.

It must first of all be acknowledged that a great deal of legal obfuscation has to be cut through to even begin exploring the matter. IP has above all been shrouded in a fog of mystification precisely to keep out the rabble and protect the authority of lawyers. Yet laws are made and laws can be unmade. The underlying principle is justice, and justice is determined through political struggle which is never confined to a courtroom. Indeed, the legal aspects of IP, while certainly worthy of informed debate, are by no means the most important in figuring out IP's place in current affairs. Far more relevant are the forces deployed on battlefields throughout the world.

First among these forces are of course the major industries dependent on IP for their profits. The most important are the pharmaceutical and agricultural industries in terms of patent and trademark, and the film, music, and publishing industries in terms of copyright. Most of the attention paid to IP has, until recently, been a result of these industries' propaganda efforts. Only in the last two decades has such propaganda been met and superseded by opposition from two other forces: broad popular movements, on the one hand, and what has been branded “piracy”, on the other. Space does not permit a thorough examination of the “piracy” phenomenon but suffice it to say, that like the label “terrorist”, “piracy” is used to demonize and criminalize activity that in many cases in conscious political protest or civil disobedience.

Regarding social movements, these have formed in two distinct social sectors, in the Global North and South, respectively, which are, nevertheless, inseparable due to their emergence in response to the legal and political regimes organized by IP law and international treaty. These movements, furthermore, are responsible for making IP a radically different matter than was the intention of the holders of most intellectual property and their propagandists. Instead of an unimpeded privatization of knowledge and genetic resources, IP is now a focus of struggle demanding the attention of anyone concerned with changing the world.

Social movements

In the Global South, farmers and indigenous peoples, along with some governments, are waging an ongoing battle against the biggest food and pharmaceutical corporations in the world. A primary focus is the protection of "traditional knowledge and genetic resources", including cereal grains such as potatoes, corn and rice. What were in many cases the results of thousands of years of human ingenuity are now patented and turned into the private property of corporations in the Global North. This applies equally to medicinal plants, many of which have already appeared as trademarked and patented drugs in pharmacies everywhere. Another focus is on educational materials whose exorbitant costs are solely attributable to the extortionate royalties extracted by large publishing houses in the United States or Europe. What students in Rio de Janeiro must pay for the privilege of reading a chapter from a book is often prohibitive and has led to widespread disobedience followed by the inevitable police crackdowns made in the name of fighting piracy. These movements have exposed the fact that countries which only recently threw off the yoke of imperialism have been effectively recolonized by means of IP regimes. Membership in the World Trade Organization (WTO) depends on acceptance of treaties enshrining copyright, patent and trademark as they are applied in the US or EU. In fact, the World Intellectual Property Organization (WIPO), an agency of the UN, administers 25 treaties to which all members of the UN are bound. That these treaties are based on IP laws designed in the first place to protect the merchants, manufacturers and financiers of Europe and the US as they conquered the world seems to have been overlooked by the independence movements that at least nominally freed most of Asia, Africa and Latin American in the wake of World War II. Only socialist Cuba abolished IP (and has recently re-instituted it) but this is nowhere seriously considered. Now, popular resistance has forced both the practical application of and the philosophical justifications for IP regimes back onto the agenda.

In the Global North, what is known as the Open Access movement has sprung up, involving a large number and broad spectrum of people. Software programmers, journalists, scientists, artists, academics and civil libertarians have rallied to resist attempts by government and business to surveil and privately appropriate all exchanges of information taking place anywhere. Here the battle is joined along the lines of free speech, access to knowledge, sharing as a principle in education and creativity, and against the intrusions of either government or business in the free association of people. Its latest manifestations have been, as is well known, the leaking of government secrets and the extreme repressive measures undertaken by the US and European governments against Bradley Manning, Julian Assange, Edward Snowden and many others. But the roots of this movement lie in the systematic effort to criminalize file sharing which began in the San Francisco Bay Area where the enabling technology was first developed, escalating through the arrest of the founders of the Pirate Bay file sharing website in Sweden, which in turn led to the founding of the first Pirate Party and eventually the massive-and successful-resistance to various legislative attempts to codify sharing as piracy (SOPA, PIPA and ACTA). The death of Aaron Swartz was thus a signal and a turning point – a signal that Open Access is a matter of life and death, and a turning point in that Swartz's Guerrilla Open Access Manifesto has explicitly linked movements in the Global North and Global South, which can now make common cause.

Lest this brief overview be taken as hyperbole or the exaggerations of an enthusiast, it must immediately be stressed that these social movements are characterized less by sustained organizational effort, than by episodic outbursts. With a few notable exceptions, they are not organizational at all, manifesting themselves instead in particular campaigns around particular issues as they arise. Sometimes these are legislative, for example, when particular laws or treaties are proposed; some are court cases involving lawsuits or criminal charges. Nowhere in any of these social movements is there, at present, a single, dominant discourse other than the most general calls for "fairness", "independence", "freedom" or recognition of the UN Charter of Human Rights as applied to indigenous communities and whistleblowers alike. While a healthy skepticism of "prevailing wisdom" about copyright or patent can be safely assumed, there is by no means a general critique of IP as such, let alone a call for its abolition. In the enormous and growing literature concerned with IP there is only a small, obscure section devoted to how the Soviet Union, China and Cuba legislated in regard to IP. Not only is this experience forgotten, it is not even known to have existed, even by many otherwise familiar with revolutionary struggle! Beyond these disclaimers is yet another: broadly speaking these movements are only potentially revolutionary. This is somewhat ironic since the subject of IP immediately exposes the foundation of bourgeois thought regarding the self, property and the State. The entire edifice of what philosopher C.B. MacPherson called "possessive individualism" is laid bare, its origins lying not only in Hobbes and Locke but in the slave trade and conquest of territory.

Property is an outmoded concept

Property is an outmoded concept. It can no longer account for the most basic components of human being, genetically or intellectually. When information encoded in genes or digital files can be transmitted almost instantly to anyone anywhere in the known universe, it is beyond the capability of laws or police to prevent its dissemination. Indeed, the only inhibition that might prove effective is one that is self-imposed, by the consciousness of people acting in what they consider to be society's best interest. As radical as this assertion might at first appear to be, it is no more than the recognition of conditions as they presently exist.

From recent Supreme Court rulings about the "natural" nature of the human genome to the suicide of Aaron Swartz, it is abundantly clear that limits have been reached at which point private property – as an idea, as an organizing principle, or as a measurement of human freedom – simply breaks down. What was the Supreme Court to do?  Say that a corporation could own the human genome? What's next, the alphabet?  The periodic table?  This is not a matter of argument by reductio ad absurdum, either. What we are seeing is the incoherence of the reasoning by which bourgeois law justified property in the first place, that is, as a "product of nature". So, it is "nature" that makes private property, and "nature" that takes it away.  Meanwhile, there has been a low-intensity civil war going on for the last 15 years. It involves millions of people – especially the young and educated – flagrantly disobeying the law and declaring those authorities charged with enforcing it illegitimate. Simultaneously, farmers and indigenous people throughout the world have risen in defiance not only of governments and corporations but against privatization as a way of thinking. From these two sites of conflict it is readily apparent that the greatest threat to IP regimes is the intellect interrogating property and finding the latter logically inconsistent and practically inoperable.

Politics and technology

It is worth recalling that much of what we are talking about when we say copyright, patent or trademark, only became headline-grabbing news since the collapse of the Soviet Union. It may also be obvious that prior to the internet most discussion was confined to the business pages of the newspaper and scientific or business journals. But taken together, political upheaval and technological development have made IP a central focus, at least of those governmental and industry departments most concerned with information. Leaving aside the important questions surrounding Wikileaks, Bradley Manning, Edward Snowden, and whistle-blowing in general, the free flow of information in whatever form, has undoubtedly been greatly facilitated by digital, fibre-optic and satellite technologies. At the same time the reactionary wave that began sweeping the world in the aftermath of the Sixties, especially since the major capitalist crisis of 1973, led to victories for neoliberalism which in turn led to the Great Crash of 2008. Under these conditions, capitalist interests view IP not merely as an opportunity to seek profit, but more fundamentally as the underpinning of a global regime, especially the trade treaties and international agreements that dictate the flow of all goods and services be they material or intellectual. Indeed, the threat many movements pose – be they indigenous people or young internet activists – is not primarily one of piracy or "theft" of the intellectual property of one corporation or another; rather, the threat is to the foundation of private property and the ownership of ideas as a conceptual framework for law or governance of any kind. In other words, within any and every conflict revolving around IP are the core principles of capitalism: possessive individualism, private appropriation of public wealth – especially natural resources – and the despoiling or destruction of the commons. Thus, what makes IP a vital battlefront for our time is that the stakes are capitalist enslavement or human liberation.

This special issue of Socialism and Democracy

It is the purpose, therefore, of this special issue of Socialism and Democracy to initiate discussion and further inquiry into this important subject. We have gathered three articles addressing different aspects of the problem from different perspectives. This is far from exhaustive but it should give readers some idea of how to proceed in studying the question. To begin with, I present the manner in which I was first introduced to IP. Speaking as a musician and an author who naively assumed, as so many do, that copyright was vaguely in my interests, I explain the journey of discovery which led me to the conclusion that copyright and IP generally need to be abolished. Furthermore, I try to explain the means by which the Music Industry exploits musicians and why it is only very recently that any empirical study has been undertaken to determine what, if any, benefit musicians actually derive from copyright.

Next, we present a contribution from economist and economic historian, Michael Perelman, whose article brings to bear a wealth of research focusing on patent and the relationship between capitalist crisis and the development of IP. This perspective is a necessary antidote to simplistic and ahistoric views which consider IP merely a formal, legal appendage of capitalism, showing instead that IP is a core mechanism of capital accumulation. Perelman’s book, Steal This Idea, is one of the all-too-rare applications of Marx’s crisis theory to IP. Indeed, in a vast literature dealing with IP there is a notable lack of Marxist or other radical critique, hence the need for this special issue of S&D.

Finally, confronting prevailing dogma that the Music Industry has suffered irreparable harm due to file sharing and the internet, Jim Rogers, Research Fellow and Associate Lecturer at the School of Communications, Dublin City University, argues persuasively that, on the contrary, the Music Industry has reaped enormous profits at exactly the moment its demise was being proclaimed. The data may astonish those who’ve accepted at face value “common sense” notions regarding music and copyright along with the hand-wringing and doom-saying of industry spokespeople and famous musicians. But the data are compelling and, most importantly, Rogers’ analysis helps clarify the complex interactions between, on the one hand, technology and corporate control and, on the other, music and musicians.

Taken together, these articles touch themes that are among the most commonly referred to today. But more needs to be done. We need further study of piracy, as a historical phenomenon and as a site of political conflict today. Agriculture, agrarian crisis, and the struggles of farmers have IP as a main component, and this must be better understood. This in turn necessitates a more thoroughgoing critique of the World Intellectual Property Organization (WIPO) and its role in perpetuating neo-colonialism in the Global South and co-opting opposition in the Global North.  But above all, a revolutionary perspective must be brought to these debates. The Left has ignored this issue too long.

Even a quick perusal of websites, blogs and publications broadly defining themselves as progressive, environmentalist, feminist, anarchist, socialist, communist, or otherwise revolutionary, clearly shows that IP is infrequently mentioned and even less frequently discussed. In posing the "Question of Strategy", the Socialist Register of 2013 does not deal with IP at all. At the Left Forum in New York, no panel or speaker in the program addressed the topic. The Declaration of the Social Movements Assembly-World Social Forum 2013 proclaims one focus of struggle: "Against transnational corporations and the financial system (IMF, WB and WTO), who are the main agents of the capitalist system, privatizing life, public services and common goods such as water, air, land, seeds and mineral resources, promoting wars and violations of human rights. Transnational corporations reproduce extractionist practices endangering life and nature, grabbing our lands and developing genetically modified seeds and food, taking away the peoples’ right to food and destroying biodiversity." But nowhere is IP, as such, mentioned either as a weapon of or a battlefront in the struggle against international capital.

This absence might reflect ignorance of the subject or it might reflect priorities for organizing. In any case, it must be corrected. We hope the material gathered here will encourage sustained engagement with IP as an opportunity to fight and win.

The following reading list is provided with this end in view. It is limited to widely influential and frequently cited works. It thus represents the major currents of thought on the subject.

Further Reading...

Historical: Hesse, Carla, “Enlightenment Epistemology and the Laws of Authorship in Revolutionary France, 1777-1793.” Representations, 30, Spring 1990

Hesse, Carla, “The Rise of Intellectual Property, 700 b.c.-a.d. 2000: An Idea in the Balance.” Daedelus, Spring 2002

“Intellectual Property and the Construction of Authorship,” a syllabus, Case Western Reserve Universtiy, www.case.edu/affil/sce/authorship/syllabus.html

Johns, Adrian, The Nature of the Book (Chicago: University of Chicago Press, 1998)

Anna Nimmus, Copyright, Copyleft and the Creative Anti-Commons. Berlin, 2006

Rose, Mark, Authors and Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993)

Sell, Susan, “Intellectual Property and Public Policy in Historical Perspective: Contestation and Settlement.” Loyola of Los Angeles Law Review I, September 2004

Woodmansee, Martha, “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author.’” Eighteenth Century Studies 17(4), Summer 1984.

Law-Legal History: Boyle, James, “The Second Enclosure Movement and the Construction of the Public Domain,” published online by Duke University Law Review 2003

Boyle, James, “A Manifesto on WIPO and the Future of Intellectual Property.” Duke Law and Technology Review, 2004

Lessig, Lawrence, “The Architecture of Innovation.” Duke Law Journal 2002

Rose, Carol M., “Romans, Roads, and Romantic Creators: Traditions of Public Property in the Information Age.” Law and Contemporary Problems 2003

Story, Alan, “Burn Berne: Why the Leading International Copyright Convention Must Be Repealed.” Houston Law Review 40(9), 2003

Story, Alan, Colin Darch, and Deborah Halbert, The Copy/South Dossier. Copy/South Research Group, April 2006

Story, Alan, An alternative primer on national and international copyright law in the global South: eighteen questions and answers. CopySouth Research Group, September 2009

Biopiracy and the Global South: Declaration of the Rights of Indigneous Peoples adopted by the UN General Assembly, September 13, 2007

Mgbeoji, Ikechi, Global Biopiracy: Patents, Plants and Indigenous Knowledge, UBC Press 2006

Shiva, Vandana, Biopiracy: The Plunder of Nature and Knowledge, South End Press 1997

Shiva, Vandana, Protect or Plunder, Understanding Intellectual Property Rights, Zed books, 2001

Suresh , Mayur, Atreyee Majumder, and Lawrence Liang, “Encountering the Sustaining Myths of Copyright.” Printed for Sarai/ ALF / Hivos workshop on Intellectual Property, Social Knowledge and Conflict; www.infochangeindia.org

Politics and Political Economy: Barlow, John Perry, “Napster.com and the Death of the Music Industry.” The Technocrat May 12, 2000

Perelman , Michael, Steal This Idea: Intellectual Property and the Corporate Confiscation of Creativity (2002)

Swartz , Aaron, “Guerrilla Open Access Manifesto.” July 2008, Eremo Italy https://archive.org/stream/GuerillaOpenAccessManifesto/Goamjuly2008_djvu.txt

Soviet, Chinese and Cuban IP Law: Alford ,William, To Steal a Book Is an Elegant Offense: Intellectual Property Law in Chinese Civilization. Studies in East Asian Law, Harvard University. (Stanford University Press, 1995)

Castro, Fidel, 1967 speech given at Guane, Pinar del Rio explaining Cuba's abolition of copyright, http://lanic.utexas.edu/project/castro/db/1967/19670430.html

Hazard , John N., Communists and Their Law (Chicago: University of Chicago Press, 1969)

Levitsky,  Serge, Introduction to Soviet Copyright Law (Leyden: A.W. Sythoff, 1964)

Newcity , Michael A., Copyright Law in the Soviet Union (New York: Praeger, 1978)