Of Intellectual property rethink

Property of your labor, property of your ideas.

The claim of a natural right that men have to property is a key foundation to the system of ideas that inspired current law, trade and politics. Without the separation of property, claims for produce of an individual origin were better attributed to the community, the kingdom (effectively the King himself), or God (represented by Church). Only after property was defined —not thought as a stolen good from the public interest— and naturally attributed to free men, was when commerce became unlocked from its moral chains, and the pursuit of happiness delinked from adherence to God’s will only, but also possible to come from the secular process of providing a family with means to enough wealth, societal position, and political power. But most of all property. Protestantism carried the flag of faith combined with prosperity in the form of wealth. A pious man without a hard working and successful trade was seen as half contributing to the betterment of their community —a radical leap from medieval thinking conception of the duties of men in itself. Modern entrepreneurship was born as a key activity to be encouraged for the betterment of society.

At the heart of entrepreneurship an idea that need to be molded up. From unintelligible pieces in disarray to a story, a narrative, an artifact that people can understand. Fire is again stolen by a son of Prometheus to let men improve themselves. This demigod entrepreneur (inventor/scientist/philosopher) becomes the ultimate hero for society. Without their activities, problems will remain insoluble, and no adaptation to a new condition of environment possible. When modern system of ideas that derived in the creation of our state and laws, had the inventor in a special place, and provided nurtured treatment of their most fundamental property, the idea. The recognition of the non tangible, intellectual or just the process of creation of works and inventions, as property in itself, was another leap forward that cemented modern approach to progress.

No wonder, early legislators and philosophers seen the inventor, artist or first time idea holder as somebody contributing too much, and probably receiving to little as a counterpart. For a healthy ecosystem of creation and betterment, society should reward with means to profit their inventors. The modern state laws would mandate means for this reward to be protected. Either via temporary monopoly (patents), restriction on copy of original works (copyright), and use of distinctive marks and symbols associated to an individual or business (trademark). With this measures protection of invention and creativeness is encouraged and promoted, and that by allowing special rights of commerce to individuals —although contradictory to free market theory— justice was being done for their contribution.

Here are a few situational factors that influenced the newly modern society rules around intellectual property protection.

Trade and commerce was in the personal name and with personal liabilities. Big limited to shares liability company was not common, and even less common for them to hold rights of intellectual property. Artists and artisans were mostly writers, and big publishing houses were not the only means for publication. In fact, there was self publishing on a limited scale that was brought to be rare by the subsequent reach, power and influence over authors of the new brokering giants of literature industry —the modern publishing house. Inventors were hobbyists who promoted science and discovery on mostly an individual basis (not through companies), and when their works were able to be commercialized they were mostly done in a local basis, and for the benefit of the local community. International trade was slow, and big hit inventions took time to be recognized as such, with a delayed desired for copying and understanding invention intricacies —sometimes of hundreds of years.

Now let’s come to the present, and see what has changed from those days. Keeping in mind that the fundamental intellectual property protection measures are about the same, with some unexpected outcomes.

The limited by shares liability company is the biggest owner of intellectual property. Commerce is mostly done at a company level —not individual— and is dramatically global. Many artists are only partial owners of their creations, as recording studios, publishing houses, and other brokering agents of arts concentrate the intellectual rights so they can be sold at scale for a better profit (to them mostly). Pharmaceutical and Chemical companies (like Monsanto) have intellectual property rights over new medications, designed genetic sequencing, seeds for farming and new molecules whether useful in the future or not. Software —inherently just logical sequencing in a mathematic fashion— is patented, and key techniques are claimed as an item of intellectual property. The individual developer/hacker is not allowed to use these even when coming independently with a similar solution themselves. In general, intellectual protection is very expensive (lawyers, government bureaucracy, and time). Therefore, only exercised by Big companies and their legal departments. Intellectual property law works for them —and probably only for them—, while the original idea of protecting the humble artist or inventor has been distorted in a way that questions whether still is benefiting the rest of society.

So, who are we giving rights to monopolies of trade?

Let’s pause for a second. It certainly didn’t look that problematic when an individual inventor was being protected, but now that Big Co. is a lawful owner of the right —by brute economic force. Isn’t our modern state laws promoting corporate profits at the expense of limiting individual innovation? This must be an interesting puzzle to solve when thinking at the same time about antitrust policies.

And what about the the claim that the sacred activity of invention needs to be protected, that surely has not changed, however Is the current big R&D expenditures of Pharma, Chemical, and Software industries the only way to get the innovation society needs? It seems that we need to be aware of the high price we are paying for this activities as a society, while held at ransom on the basis that current way is the only way to get progress we need.

But really? In a time where individuals have more means of communication, sharing and cheap access to means of production and experiment at an increasing scale, and jointly produced wonders like Wikipedia, Linux or the improvement of web itself (that are largely in their hands), we are still stuck in a system of invention that protects the established giants more than the daring entrepreneur?

Imagine the possibilities of new rules that doesn’t allow for trolls to build a portfolio of patents with the only intention of bringing litigation when the little startup starts to turn a profit. Imagine, a radical reform that limits the holding of intellectual property by limited liability companies, and gives preference to entities with a full liability or even better individuals. Imagine a system that recognizes the rarity and serendipity nature of invention, and doesn’t see it as a scheduled exercise with a R&D budget to be expense every year —by the way we are paying for that expense.

The humble tinkerer age seems to be coming back, and a few tools are being provided for this happen. However, no bigger change will eventuate until we shift back the weight of the protection to the most basic element of all “the idea” and with it protect our most unrewarded and unknown hero of progress, the entrepreneur.

Send to Kindle

Leave a Reply