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Computer underground Digest    Tue  Jun 20, 1995   Volume 7 : Issue 51
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CONTENTS, #7.51 (Tue, Jun 20, 1995)

File 1--Against Intellectual Property
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From: Brian Martin <b.martin@uow.edu.au>
Date: Tue, 30 May 1995 18.2.43 CDT
Subject: File 1--Against Intellectual Property

AGAINST INTELLECTUAL PROPERTY

Brian Martin
Department of Science and Technology Studies
University of Wollongong, NSW 2522, Australia
email: b.martin@uow.edu.au

To appear in Philosophy and Social Action, Vol. 21, No. 3, July-September
1995



There is a strong case for opposing intellectual property. There are a number
of negative consequences of the ownership of information, such as retarding
of innovation and exploitation of poor countries. Most of the usual arguments
for intellectual property do not hold up under scrutiny. In particular, the
metaphor of the marketplace of ideas provides no justification for ownership
of ideas. The alternative to intellectual property is that intellectual
products not be owned, as in the case of everyday language. Strategies
against intellectual property include civil disobedience, promotion of
non-owned information, and fostering of a more cooperative society.


In 1980, a book entitled Documents on Australian Defence and Foreign Policy
1968-1975 was published by George Munster and Richard Walsh. It reproduced
many secret government memos, briefings and other documents concerning
Australian involvement in the Vietnam war, events leading up to the
Indonesian invasion of East Timor, and other issues. Exposure of this
material deeply embarrassed the Australian government. In an unprecedented
move, the government issued an interim injunction, citing both the Crimes Act
and the Copyright Act. The books, just put on sale, were impounded. Print
runs of two major newspapers with extracts from the book were also seized.
The Australian High Court ruled that the Crimes Act did not apply, but that
the material was protected by copyright held by the government. Later,
Munster and Walsh produced a book using summaries and short quotes in order
to present the information (Munster 1982).

This example is one of many that shows how copyright is used to protect the
interests of the powerful in the face of challengers, at the expense of free
speech. Yet copyright is standardly justified on the grounds that it promotes
creation and dissemination of ideas.

Copyright is one of four main types of intellectual property or, in other
words, ownership of information. The others are patents, trademarks and trade
secrets. Copyright covers the expression of ideas such as in writing, music
and pictures. Patents cover inventions, such as designs for objects or
industrial processes. Trademarks are symbols associated with a good, service
or company. Trade secrets cover confidential business information.

The type of property that is familiar to most people is physical objects.
People own clothes, cars, houses and land. When people own ideas, this is
called intellectual property. But there has always been a big problem with
owning ideas -- exclusive use or control of ideas doesn't make nearly as much
sense as it does applied to physical objects.

Many physical objects can only be used by one person at a time. If one person
wears a pair of shoes, no one else can wear them at the same time. (The
person who wears them often also owns them, but not always.) This is not true
of intellectual property. Ideas can be copied over and over, but the person
who had the original copy still has full use of it. Suppose you write a poem.
Even if a million other people have copies and read the poem, you can still
read the poem yourself. In other words, more than one person can use an idea
-- a poem, a mathematical formula, a tune -- without reducing other people's
use of the idea. Shoes and poems are fundamentally different in this respect.

Technological developments have made it cheaper and easier to make copies of
information. Printing was a great advance: it eliminated the need for hand
copying of documents. Photocopying and computers have made it even easier to
make copies of written documents. Photography and sound recordings have done
the same for visual and sound material. The ability to protect intellectual
property is being undermined by technology. Yet there is a strong push to
expand the scope of ownership of information.

This article outlines the case against intellectual property. I begin by
mentioning some of the problems arising from ownership of information. Then I
turn to weaknesses in the standard justifications for intellectual property.
Next is an overview of problems with the so-called "marketplace of ideas,"
which has important links with intellectual property. Finally, I outline some
alternatives to intellectual property and some possible strategies for moving
towards these alternatives.

SOME PROBLEMS WITH INTELLECTUAL PROPERTY

Governments generate large quantities of information. They produce statistics
on population, figures on economic production and health, texts of laws and
regulations, and vast numbers of reports. The generation of this information
is paid for through taxation and, therefore, it might seem that it should be
available to any member of the public. But in some countries, some of this
information is turned over to corporations that then sell it to whoever can
pay. Publicly funded information is "privatised" and thus is not freely
available (Nelkin 1984).

When government-produced information is retained by the governments, things
may not be much better. As in the case of Documents on Australian Defence and
Foreign Policy illustrates, copyright is one technique used to keep
information away from the public.

The idea behind patents is that the fundamentals of an invention are made
public while the inventor for a limited time has the exclusive right to make,
use or sell the invention. But there are quite a few cases in which patents
have been used to suppress innovation (Dunford 1987). Companies may take out
a patent, or buy someone else's patent, in order to inhibit others from
applying the ideas. For example, from its beginning in 1875, the US company
AT&T collected patents in order to ensure its monopoly on telephones. It
slowed down the introduction of radio for some 20 years. In a similar
fashion, General Electric used control of patents to retard the introduction
of fluorescent lights, which were a threat to its market of incandescent
lights. Trade secrets are another way to suppress technological development.
Trade secrets are protected by law but, unlike patents, do not have to be
published openly.

One of the newest areas to be classified as intellectual property is
biological information. US courts have ruled that genetic sequences can be
patented, even when the sequences are found "in nature," so long as some
artificial means are involved in isolating them. This has led companies to
race to take out patents on numerous genetic codes. In some cases, patents
have been granted covering all transgenic forms of an entire species, such as
soybeans or cotton (Mestel 1994). One consequence is a severe inhibition on
research by non-patent holders. Another consequence is that transnational
corporations are patenting genetic materials found in Third World plants and
animals, so that some Third World peoples actually have to pay to use seeds
and other genetic materials that have been freely available to them for
centuries (Shiva and Holla-Bhar 1993).

More generally, intellectual property is one more way for rich countries to
extract wealth from poor countries. Given the enormous exploitation of poor
peoples built into the world trade system, it would only seem fair for ideas
produced in rich countries to be provided at no cost to poor countries. Yet
in the GATT negotiations, representatives of rich countries, especially the
US, have insisted on strengthening intellectual property rights. Surely there
is no better indication that intellectual property is primarily of value to
those who are already powerful and wealthy (Drahos 1995; Patel 1989).

The potential financial returns from intellectual property are said to
provide an incentive for individuals to create. In practice, though, most
creators do not actually gain much benefit from intellectual property.
Independent inventors are frequently ignored or exploited (Lancaster 1992).
When employees of corporations and governments have an idea worth protecting,
it is usually copyrighted or patented by the organisation, not the employee.
Since intellectual property can be sold, it is usually the rich and powerful
who benefit. The rich and powerful, it should be noted, seldom contribute
much intellectual labour to the creation of new ideas.

These problems -- privatisation of government information, suppression of
patents, ownership of genetic information and information not owned by the
true creator -- are symptoms of a deeper problem with the whole idea of
intellectual property. Unlike goods, there are no physical obstacles to
providing an abundance of ideas. (Indeed, the bigger problem may be an
oversupply of ideas.) Intellectual property is an attempt to create an
artificial scarcity in order to give rewards to a few at the expense of the
many. Intellectual property aggravates inequality. It fosters competitiveness
over information and ideas, whereas cooperation makes much more sense.

CRITIQUE OF STANDARD JUSTIFICATIONS

Edwin C. Hettinger (1989) has provided an insightful critique of the main
arguments used to justify intellectual property, so it is worthwhile
summarising his analysis. (See also Ricketson 1992). Hettinger begins by
noting the obvious argument against intellectual property, namely that
sharing intellectual objects still allows the original possessor to use them.
Therefore, the burden of proof should lie on those who argue for intellectual
property.

The first argument for intellectual property is that people are entitled to
the results of their labour. Hettinger's response is that not all the value
of intellectual products is due to labour. Nor is the value of intellectual
products due to the work of a single labourer, or any small group.
Intellectual products are social products.

Suppose you have written an essay or made an invention. Your intellectual
work does not exist in a social vacuum. It would not have been possible
without lots of earlier work -- both intellectual and nonintellectual -- by
many other people. This includes your teachers and parents. It includes the
earlier authors and inventors who have provided the foundation for your
contribution. It also includes the many people who have discussed and used
ideas and techniques, at both theoretical and practical levels, and provided
a cultural foundation for your contribution. It includes the people who have
built printing presses, laid telephone cables, built roads and buildings and
in many other ways have contributed to the "construction" of society. Many
other people could be mentioned. The point is that any piece of intellectual
work is always built on and inconceivable without the prior work of numerous
people.

Hettinger points out that the earlier contributors to the development of
ideas are not present. Today's contributor therefore cannot validly claim
full credit.

Is the market value of a piece of an intellectual product a reasonable
indicator of a person's contribution? Certainly not. As noted by Hettinger
and as will be discussed in the next section, markets only work once property
rights have been established, so it is circular to argue that the market can
be used to measure intellectual contributions. Hettinger summarises this
point in this fashion: "The notion that a laborer is naturally entitled as a
matter of right to receive the market value of her product is a myth. To what
extent individual laborers should be allowed to receive the market value of
their products is a question of social policy." (p. 39).

A related argument is that people have a right to possess and personally use
what they develop. Hettinger's response is that this doesn't show that they
deserve market values, nor that they should have a right to prevent others
from using the invention.

A second major argument for intellectual property is that people *deserve*
property rights because of their labour. This brings up the general issue of
what people deserve, a topic that has been analysed by philosophers. Their
usual conclusions go against what many people think is "common sense."
Hettinger says that a fitting reward for labour should be proportionate to
the person's effort, the risk taken and moral considerations. This sounds all
right -- but it is not proportionate to the value of the results of the
labour, whether assessed through markets or by other criteria. This is
because the value of intellectual work is affected by things not controlled
by the worker, including luck and natural talent. Hettinger says "A person
who is born with extraordinary natural talents, or who is extremely lucky,
*deserves* nothing on the basis of these characteristics" (p. 42).

A musical genius like Mozart may make enormous contributions to society. But
being born with enormous musical talents does not provide a justification for
owning rights to musical compositions or performances. Likewise, the labour
of developing a toy like Teenage Mutant Ninja Turtles that becomes incredibly
popular does not provide a justification for owning rights to all possible
uses of turtle symbols.

What about a situation where one person works hard at a task and a second
person with equal talent works less hard? Doesn't the first worker deserve
more reward? Perhaps so, but it is not obvious that property rights provide a
suitable mechanism for allocating rewards, especially since the market
disproportionately rewards the person who successfully claims property rights
for a discovery.

A third argument for intellectual property is that private property is a
means for promoting privacy and a means for personal autonomy. Hettinger
responds that privacy is protected by not revealing information, not by
owning it. Trade secrets cannot be defended on the grounds of privacy,
because corporations are not individuals. As for personal autonomy,
copyrights and patents aren't required for this.

A fourth argument is that rights in intellectual property are needed to
promote the creation of more ideas. Hettinger thinks that this is the only
argument for intellectual property that has a possibility of standing up to
critique. He is still somewhat sceptical, though. He notes that the whole
argument is built on a contradiction, namely that in order to promote the
development of ideas, it is necessary to reduce the freedom with which people
can use them.

This argument for intellectual property cannot be resolved without further
investigation. Hettinger says that there needs to be an investigation of how
long patents and copyrights should be granted, to determine an optimum period
for promoting intellectual work. It should be noted that although the scale
and pace of intellectual work has increased over the past few centuries, the
length of protection of intellectual property has not been reduced, as might
be expected, but greatly increased. The United States got along fine without
copyright for much of the 1800s. Where once copyrights were only for a period
of a few years, they now may be for the life of the author plus 50 years. In
many countries, chemicals and pharmaceuticals were not patentable until
recently (Patel 1989). This suggests that even if intellectual property can
be justified on the basis of fostering new ideas, this is not the driving
force behind the present system of copyrights and patents.

THE MARKETPLACE OF IDEAS

The idea of intellectual property has a number of connections with the
concept of the marketplace of ideas, a metaphor that is widely used in
discussions of free speech. To delve a bit more deeply into the claim that
intellectual property promotes development of new ideas, it is therefore
helpful to scrutinise the concept of the marketplace of ideas.

The image conveyed by the marketplace of ideas is that ideas compete for
acceptance in a market. As long as the competition is fair -- which means
that all ideas and contributors are permitted access to the marketplace --
then good ideas will win out over bad ones. Why? Because people will
recognise the truth and value of good ideas. On the other hand, if the market
is constrained, for example by some groups being excluded, then certain ideas
cannot be tested and examined and successful ideas may not be the best ideas.

Logically, there is no reason why a marketplace of ideas has to be a
marketplace of *owned* ideas: intellectual property cannot be strictly
justified by the marketplace of ideas. But because the marketplace metaphor
is an economic one, there is a strong tendency to link intellectual property
with the marketplace of ideas. As will be discussed later, there is indeed a
link between these two concepts, but not in the way their defenders usually
imagine.

There are plenty of practical examples of the failure of the marketplace of
ideas. Groups that are stigmatised or that lack power seldom have their
viewpoints presented. This includes ethnic minorities, prisoners, the
unemployed, manual workers and radical critics of the status quo, among many
others (McGaffey 1972). Even when such groups organise themselves to promote
their ideas, their views are often ignored while the media focus on their
protests, as in the case of peace movement rallies and marches (Gwyn 1966).

Demonstrably, good ideas do not always win out in the marketplace of ideas.
To take one example, it can hardly be argued that the point of view of
workers is inherently less worthy than that of employers. Yet there is an
enormous imbalance in the presentation of their respective viewpoints in the
media. One result is that quite a few ideas that happen to serve the
interests of employers at the expense of workers -- such as that the reason
people don't have jobs is because they aren't trying hard enough to find them
-- are widely accepted although they are rejected by virtually all informed
analysts.

There is a simple and fundamental reason for the failure of the marketplace
of ideas: inequality, especially economic inequality (Baker 1989; Hanson
1981). Perhaps in a group of people sitting in a room discussing an issue,
there is some prospect of a measured assessment of different ideas. But if
these same people are isolated in front of their television sets, and one of
them owns the television station, it is obvious that there is little basis
for testing of ideas. The reality is that powerful and rich groups can
promote their ideas with little chance of rebuttal from those with different
perspectives. Large corporations pay for advertisements and other forms of
marketing. Governments shape media agendas as well as directly regulating the
media. The mass media themselves are powerful enterprises -- whether owned by
government or industry -- that promote their own interests as well as those
of their advertisers (Bagdikian 1993).

In circumstances where participants are approximate equals, such as
intellectual discourse among peers in an academic discipline, then the
metaphor of competition of ideas has some value. But ownership of media or
ideas is hardly a prerequisite for such discourses. It is the equality of
power that is essential. When, to take one of many possible examples,
employees in corporations lack the freedom to speak openly without penalty
(Ewing 1977), they cannot be equal participants in discourse.

Some ideas are good -- in the sense of being valuable to society -- but are
unwelcome. Some are unwelcome to powerful groups, such as that governments
and corporations commit massive crimes (Ross 1995) or that there is a massive
trade in technologies of torture and repression that needs to be stopped
(Wright 1991). Others are challenging to much of the population, such as that
imprisonment does not reduce the crime rate or that financial rewards for
good work on the job or grades for good schoolwork are counterproductive
(Kohn 1993). (Needless to say, individuals might disagree with the examples
used here. The case does not rest on the examples themselves, but on the
existence of some important cases where unwelcome but socially valuable ideas
are marginalised.) The marketplace of ideas simply does not work to treat
such unwelcome ideas with the seriousness they deserve. The mass media try to
gain audiences by pleasing them, not by confronting them with challenging
ideas (Entman 1989).

The marketplace of ideas is often used to justify free speech. The argument
is that free speech is necessary in order for the marketplace of ideas to
operate: if some types of speech are curtailed, certain ideas will not be
available on the marketplace and thus the best ideas will not succeed. This
sounds plausible. But it is possible to reject the marketplace of ideas while
still defending free speech on the grounds that it is essential to human
liberty (Baker 1989). Conversely, defending free speech does not mean
supporting the mass media (Lichtenberg 1987).

If the marketplace of ideas doesn't work, what is the solution? The usual
view is that governments should intervene to ensure that all groups have fair
access to the media (McGaffey 1972). But this approach, based on promoting
equality of opportunity, ignores the fundamental problem of economic
inequality. Even if minority groups have some limited chance to present their
views in the mass media, this can hardly compensate for the massive power of
governments and corporations to promote their views. In addition, it retains
the role of the mass media as the central mechanism for disseminating ideas.
So-called reform proposals either retain the status quo or introduce
government censorship (Ingber 1984).

Underlying the market model is the idea of self-regulation: the "free market"
is supposed to operate without outside intervention and, indeed, to operate
best when outside intervention is minimised. In practice, even markets in
goods do not operate autonomously: the state is intimately involved in even
the freest of markets (Moran and Wright 1991). In the case of the marketplace
of ideas, the state is involved both in shaping the market and in making it
possible, for example by promoting and regulating the mass media. The world's
most powerful state, the US, has been the driving force behind the
establishment of a highly protectionist system of intellectual property,
using power politics at GATT, the General Agreement on Tariffs and Trade
(Drahos 1995).

Courts may use the rhetoric of the marketplace of ideas but actually
interpret the law to support the status quo (Ingber 1984). For example,
speech is treated as free until it might actually have some consequences.
Then it is curtailed when it allegedly presents a "clear and present danger,"
such as when peace activists expose information supposedly threatening to
"national security" (Gleditsch 1987). But speech without action is pointless.
True liberty requires freedom to promote one's views in practice (Baker
1989). Powerful groups have the ability to do this. Courts only intervene
when others try to do the same.

As in the case of trade generally, a property-based "free market" serves the
interests of powerful producers. In the case of ideas, this includes not only
governments and corporations but also intellectuals and professionals linked
with universities, entertainment, journalism and the arts. Against such an
array of intellectual opinion, it is very difficult for other groups, such as
manual workers, to compete (Ginsberg 1986). The marketplace of ideas is a
biased and artificial market that mostly serves to fine-tune relations
between elites and provide them with legitimacy (Ingber 1984).

The implication of this analysis is that intellectual property cannot be
justified on the basis of the marketplace of ideas. The utilitarian argument
for intellectual property is that ownership is necessary to stimulate
production of new ideas, because of the financial incentive. This financial
incentive is supposed to come from the market, whose justification is the
marketplace of ideas. If, as critics argue, the marketplace of ideas is
flawed by the presence of economic inequality and, more fundamentally, is an
artificial creation that serves powerful producers of ideas and legitimates
the role of elites, then the case for intellectual property is unfounded.
Intellectual property can only serve to aggravate the inequality on which it
is built.


THE ALTERNATIVE

The alternative to intellectual property is straightforward: intellectual
products should not be owned. That means not owned by individuals,
corporations, governments, or the community as common property. It means that
ideas are available to be used by anyone who wants to.

One example of how this might operate is language, including the words,
sounds and meaning systems with which we communicate every day. Spoken
language is free for everyone to use. To allow any group to own language
raises the spectre of George Orwell's 1984. (Actually, corporations do
control bits of language through trademarks.)

Another example is scientific knowledge. Scientists do research and then
publish their results. A large fraction of scientific knowledge is public
knowledge (Ziman 1968). There are some areas of science that are not public,
such as classified military research. It is generally argued that the most
dynamic parts of science are those with the least secrecy. Open ideas can be
examined, challenged, modified and improved. To turn scientific knowledge
into a commodity on the market, as is happening with genetic engineering
(Mackenzie et al. 1990; Weiner 1986), arguably inhibits science.

Few scientists complain that they do not own the knowledge they produce.
Indeed, they are much more likely to complain when corporations or
governments try to control dissemination of the ideas. Most scientists
receive a salary from a government, corporation or university. Their
livelihoods do not depend on royalties from published work.

University scientists have the greatest freedom. The main reasons they do
research are for the intrinsic satisfaction of investigation and discovery --
a key motivation for many of the world's great scientists -- and for
recognition by their peers. To turn scientific knowledge into intellectual
property would dampen the enthusiasm of many scientists for their work.

Neither language nor scientific knowledge are ideal; indeed, they are often
used for harmful purposes. It is difficult to imagine, though, how turning
them into property could make them better.

The case of science shows that vigorous intellectual activity is quite
possible without intellectual property, and in fact that it may be vigorous
precisely because information is not owned. But there are lots of areas that,
unlike science, have long operated with intellectual property as a fact of
life. What would happen without ownership of information? Many objections
spring to mind. Here I'll deal with a few of them.

Plagiarism is a great fear in the minds of many intellectual workers. It is
often thought that intellectual property provides a protection against
plagiarism. After all, without copyright, why couldn't someone put their name
on your essay and publish it? Actually, copyright provides very little
protection against plagiarism and is not a good way to deal with it (Stearns
1992).

Plagiarism means using the ideas of others without adequate acknowledgement.
There are several types of plagiarism. One is plagiarism of ideas: someone
takes your original idea and, using different expression, presents it as
their own. Copyright provides no protection at all against this form of
plagiarism. Another type of plagiarism is word-for-word plagiarism, where
someone takes the words you've written -- a book, an essay, a few paragraphs
or even just a sentence -- and, with or without minor modifications, presents
them as their own. This sort of plagiarism *is* covered by copyright --
assuming that you hold the copyright. In many cases, copyright is held by the
publisher, not the author. In practice, plagiarism goes on all the time, in
various ways and degrees (Broad and Wade 1982; Mallon 1989; Posner 1988), and
copyright law is hardly ever used against it. The most effective challenge to
plagiarism is not legal action but publicity. At least among authors,
plagiarism is widely condemned. To be exposed as a plagiarist is more than
sufficient motivation for most writers to take care to avoid it.

There is an even more fundamental reason why copyright provides no protection
against plagiarism: the most common sort of plagiarism is built into social
hierarchies. Government and corporate reports are released under the names of
top bureaucrats who did not write them; politicians and university presidents
give speeches written by underlings. These are examples of a pervasive
misrepresentation of authorship in which powerful figures gain credit for the
work of subordinates (Martin 1994). Copyright, if it has any effect at all,
reinforces rather than challenges this sort of institutionalised plagiarism.

What about all the writers, inventors and others who depend for their
livelihood on royalties? First, it should be mentioned that only a very few
individuals make enough money from royalties to live on. Most of the rewards
from intellectual property go to a few big companies. But the question is
still a serious one for those intellectual workers who depend on royalties
and other payments related to intellectual property.

The alternative in this case is some reorganisation of the economic system.
Intellectual workers could receive a salary, just like most scientists do.

Getting rid of intellectual property would reduce the incomes of a few highly
successful creative individuals, such as author Agatha Christie, composer
Andrew Lloyd Webber and filmmaker Steven Spielberg. Publishers could reprint
Christie's novels without permission, theatre companies could put on Webber's
operas whenever they wished and Spielberg's films could be copied and
screened anywhere. Jurassic Park T-shirts, toys and trinkets could be
produced at will. This would reduce the income of and, to some extent, the
opportunities for artistic expression by these individuals. But there would
be economic resources released: there would be more money available for other
creators. Christie, Webber and Spielberg might be just as popular without
intellectual property to channel money to them and their family enterprises.

But what about the incentive to create? Without the possibility of wealth and
fame, what would stimulate creative individuals to produce works of genius?
Actually, most creators and innovators are motivated by their own intrinsic
interest, not by rewards. There is a large body of evidence showing, contrary
to popular opinion, that rewards actually reduce the quality of work (Kohn
1993). If the goal is better and more creative work, paying creators on a
piecework basis, such as through royalties, is counterproductive.

In a society without intellectual property, creativity is likely to thrive.
Most of the problems that are imagined to occur if there is no intellectual
property -- such as the exploitation of a small publisher that renounces
copyright -- are due to economic arrangements that maintain inequality. The
soundest foundation for a society without intellectual property is greater
economic and political equality. This means not just equality of opportunity,
but equality of outcomes. This does not mean uniformity and does not mean
levelling imposed from the top: it means freedom and diversity and a
situation where people can get what they need. There is not space to deal
fully with this issue here, but suffice it to say that there are strong
social and psychological arguments in favour of equality (Baker 1987; Deutsch
1985; Ryan 1981).

STRATEGIES FOR CHANGE

Challenging intellectual property is a daunting task. It is supported by many
powerful groups: the most powerful governments and the largest corporations.
The mass media seem fully behind intellectual property, partly because media
monopolies would be undercut if information were more freely copied and
partly because the most influential journalists depend on syndication rights
for their stories. Perhaps just as important is the support for intellectual
property from many small intellectual producers, including academics and
freelance writers. Although the monetary returns to these intellectuals are
seldom significant, they have been persuaded that they both need and deserve
their small royalties. This is similar to the way that small owners of goods
and land, such as homeowners, strongly defend the system of private property,
whose main beneficiaries are the very wealthy who own vast enterprises based
on many other people's labour.

Another problem in developing strategies is that it makes little sense to
challenge intellectual property in isolation. If we simply imagine
intellectual property being abolished but the rest of the economic system
unchanged, then many objections can be made. Challenging intellectual
property must involve the development of methods to support today's small
intellectual producers.

An obvious way to challenge intellectual property is simply to defy it by
reproducing protected works. From the point of view of intellectual property,
this is called "piracy." (This is a revealing term, considering that no such
language is used when, for example, a boss takes credit for a subordinate's
work or when a Third World intellectual is recruited to a First World
position (Verzola 1993).) This happens every day when people photocopy
copyrighted articles, tape copyrighted music, or duplicate copyrighted
software. It is precisely because illegal copying is so easy and so common
that big governments and corporations have mounted offensives to promote
intellectual property rights.

Unfortunately, illegal copying is not a very good strategy against
intellectual property, any more than stealing goods is a way to challenge
ownership of physical property. Theft of any sort implicitly accepts the
existing system of ownership. By trying to hide the copying and avoiding
penalties, the copiers appear to accept the legitimacy of the system.

Far more powerful than illicit copying is open refusal to cooperate with
intellectual property. The methods of nonviolent action can be used here,
including noncooperation, boycotts and setting up alternative institutions
(Sharp 1973). By being open about the challenge, there is a much greater
chance of focussing attention on the issues at stake and creating a dialogue.
By being principled in opposition, and being willing to accept penalties that
might be applied to civil disobedience to laws on intellectual property,
there is a much greater chance of winning over third parties (Herngren 1993).
If harsh penalties are applied to those who challenge intellectual property,
this is likely to produce a backlash of sympathy. If mass civil disobedience
to intellectual property laws were to occur, it would be impossible to stop.

Something like that is already occurring. Because photocopying of copyrighted
works is so common, there is seldom any attempt to enforce the law against
small violators -- to do so would alienate too many people. Copyright
authorities therefore seek other means of collecting revenues from
intellectual property, such as payments by institutions based on library
copies. There would be a much greater impact from a principled challenge to
intellectual property, especially if some prominent people took part.

Another important strategy is the promotion of non-owned information. A good
example is public domain software, which is computer software that is made
available free to anyone who wants it. The developers of "freeware" gain
satisfaction out of their intellectual work and out of providing a service to
other people.

A suitable alternative to copyright is shareright. A piece of freeware might
be accompanied by the notice, "You may reproduce this material if your
recipients may also reproduce it." This encourages copiers but refuses any of
them copyright.

Intellectual property gives the appearance of stopping unfair appropriation
of ideas although, as argued here, the reality is quite different. If
intellectual property is to be challenged, people need to be reassured that
misappropriation of ideas will not become a big problem. Therefore it is
important to develop principles to deal with credit for intellectual work --
even if credit is not rewarded financially. This would include guidelines for
not misrepresenting another person's work. So-called moral rights to be
recognised as the author of a work are relevant here.

More fundamentally, it needs to be recognised that intellectual work is
inevitably a collective process. No one has totally original ideas: ideas are
always built on the earlier contributions of others. Furthermore,
contributions to culture -- which makes ideas possible -- are not just
intellectual but also practical and material, including the rearing of
families and construction of buildings. Intellectual property is theft,
sometimes in part from an individual creator but always from society as a
whole.

In a more cooperative society, credit for ideas would not be such a
contentious matter. Today, there are vicious disputes between scientists over
who should gain credit for a discovery. This is because scientists' careers
and, more importantly, their reputations, depend on credit for ideas. In a
society with less hierarchy and greater equality, intrinsic motivation and
satisfaction would be the main returns from contributing to intellectual
developments. This is quite compatible with everything that is known about
human nature (Kohn 1990). The system of ownership encourages groups to put
special interests above general interests. Sharing information is undoubtedly
the most efficient way to allocate productive resources (Hahnel 1993). The
less there is to gain from credit for ideas, the more likely people are to
share ideas rather than worry about who deserves credit for them.

Finally, it should not be imagined that getting rid of intellectual property
is a solution to the link between information and inequality. Even without
intellectual property, information can be controlled by powerful groups.
National security elites use secrecy and spying to protect their operations.
Professions use specialised training, jargon and esoteric theories, as well
as licensing by the state, to make their work inaccessible to outsiders.
Corporations protect many of their ideas through secrecy rather than patents.
The law of defamation is used to punish free speech, especially criticisms of
powerful individuals. Intellectual property is only one technique of many by
which powerful groups control information in order to protect and expand
their positions and wealth. Challenging intellectual property is only one
part, though an important part, of challenging inequality.

ACKNOWLEDGEMENTS: I thank Steve Fuller, Brian Rappert, Wendy Varney, Ian
Watson and a hostile referee for The Information Society for providing
helpful comments on a draft of this paper and Mary Cawte for tracking down
some information. Numerous other people, through their writings,
conversations and other activities, directly or indirectly helped make this
work possible.

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------------------------------

Date: Sun, 19 Apr 1995 22:51:01 CDT
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Subject: File 2--Cu Digest Header Info (unchanged since 19 Apr, 1995)

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