Enclosures of the Mind: Intellectual from a Global Perspective

Wybo Wiersma University of Groningen [email protected]

A Confrontation with the Subject determination who had to reject the authori- ties of distant, uninformed powers. We must “Governments of the Industrial World, you declare our virtual selves immune to your weary giants of flesh and steel, I come from sovereignty, even as we continue to consent Cyberspace, the new home of Mind. On be- to your rule over our bodies. We will spread half of the future, I ask you of the past to leave ourselves across the Planet so that no one can us alone. You are not welcome among us. You arrest our thoughts. have no sovereignty where we gather. We will create a civilization of the Mind in We have no elected government, nor are we Cyberspace. May it be more humane and fair likely to have one, so I address you with no than the world your governments have made greater authority than that with which liberty before.” itself always speaks. I declare the global so- - From the Declaration of the Independence cial space we are building to be naturally in- of Cyberspace, by John P. Barlow, co-founder dependent of the tyrannies you seek to impose of the Electronic Frontier Foundation.1 on us. You have no moral right to rule us nor do you possess any methods of enforcement 1 Introduction we have true reason to fear. As this almost unearthly quote of J. Barlow Governments derive their just powers from suggests, cyberspace — or for many of us just the consent of the governed. You have neither the internet — is currently one of the most vis- solicited nor received ours. We did not invite ible, accessible and far reaching vehicles of you. You do not know us, nor do you know our globalisation. Globalisation is not just hap- world. Cyberspace does not lie within your pening on the internet, it is also well under borders. way in the spheres of economy and law. In ... addition, with the increasing importance of in- Your increasingly obsolete information in- novations and information, our society is also dustries would perpetuate themselves by transforming into what has been called the In- proposing laws, in America and elsewhere, formation Society: in which information and that claim to own speech itself throughout the other intellectual produce are becoming the world. These laws would declare ideas to primary source of wealth. This, in turn, has be another industrial product, no more no- — together with, and against increased file- ble than pig iron. In our world, whatever sharing and recombination of existing works the human mind may create can be repro- on-line — made more parties interested in duced and distributed infinitely at no cost. enclosing these riches by stricter Intellectual The global conveyance of thought no longer Property (IP) Laws, resulting in what some requires your factories to accomplish. have called a virtual land-grab. It is at these These increasingly hostile and colonial 1 A Declaration of the Independence of measures place us in the same position as John Perry Barlow. Cyberspace. 1996. URL: http://homes.eff.org/ those previous lovers of freedom and self- ~barlow/Declaration-Final.html, p. 1. Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma increasingly relevant crossroads of informa- cause of the problems that IP runs into due tion technology, globalisation, and IP-law that to historical and technological developments, this paper finds its subject. IP is no longer justified. Then some alter- The main question asked is whether IP and natives will be briefly discussed, such as the IP-laws can still, or no longer, be justified emergence of a second, parallel, market for from a historic and global perspective. While virtual goods in which usage, or popularity is answering this question we do not just look at rewarded, not the piece-wise sale that mainly the contemporary ethical issues, but take his- works well for physical goods. Finally we toric developments as our basis and starting- will criticise the reification that is central to point. This because historic analysis can un- the debate in the form of both talk of ’nat- earth not just the history of IP-law itself, but ural’ rights and the blind acceptance of the also — and especially relevant for our ques- need to impose artificial scarcity on works of tion here — how it functions in the world as the intellect in order to extract a fair profit the times and technology change, changing from the first market. We will conclude with the ways and degrees to which these laws ap- a short answer to the question of the justifia- ply and function, similar to how not just mod- bility of and a sketch of recent de- ifications to a text, but also the further evolu- velopments. tion of the language it is written in, can change its readings. 2 A Short History of We will start with a short history of IP in early, modern, and contemporary history, to We will begin with a short history of IP in provide the necessary background. Then we chronological order, starting with the early will attempt to clear the conceptual muddle history upto the 18th century Statute of Anne, that is currently swamping much of the day to then the modern, culminating in the Berne day debate about IP. It starts with an explica- Convention, followed by that of the contem- tion of the central concepts: property, intellec- porary United States (US). tual and intellectual property. Following, all stakeholders and interests involved in IP are 2.1 Early History: In Service of the King identified; authors, publishers, the public and In classical history we do not encounter the society. The introductory explication of con- concept of IP for a long time. In the India of cepts ends with a listing and discussion of the ancient times ideas were ascribed to peoples, most important fields of power in which these not to individuals. What was said mattered interests are opposing and balancing against more than who said it. In Greek oral tradition each other. works were fluid, and traveling story-tellers Then we will go into the two main clas- freely adopted and adapted stories from their sical theories of justification for Intellectual shared tradition. It was only hesitatingly that Property: the utilitarian stimulation of cre- in 6th century BC Athens creative works be- ation theory and the Lockean labor desert the- gan to be associated with individual authors. ory. In the sixth section an outline will be In the Jewish Talmud we see true attribution given of the long term structural changes that of ideas to authors for the first time, but this are of relevance for our understanding of IP in was mostly for the determination of authority, relation to the two theories of justification; the not for the assertion of rights. Then in Ro- rise of the information society, the second en- man times — while writing was still mostly closures movement, globalisation, decentral- something for the leisured class — we find a ized (re-)production, and creation by globally few records of publishing-contracts. Still, in dispersed communities. Roman Law there is no trace yet of the con- In the last part the findings will be pre- cept of IP, and where a living was to be made, sented. First of all it will be argued that be- patronage was still the most common form of

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financial support for authors.2 the East India Company.7 Then again in the Middle Ages, authorship Besides the protection of infant industries was not a popular notion. Most works were and an expectation of loyalty, the employment anonymous and ascribed to ones group or at- 3 of censorship also played a role when queen tributed to the glory of God. Obsession with Mary I granted — what was to become — the improvement of ones social-economic po- a 150 year monopoly on publication to the sition was frowned upon, as was profit (via the Stationers Company in 1557.8 This company, doctrine of the ’just price’). For a long time next to its obligation of censorship, had the the church was the only party concerned with right to organize book-sales, to limit the num- anything intellectual, and they did not exploit ber of master-printers to 25, and to keep a ideas or texts in any direct way: copying of public registry of which of them was allowed manuscripts was free, besides the monks labor to publish which titles.9 required to do it. The only exception were a few Benedictine monasteries who did charge For a long time most works published and money, land, or cattle for access to their li- in demand were classics. Because of the braries (but again not for copying). Even Company’s monopoly, the few authors who when around the turn of the first millennium did produce new works were in a very weak the University of Paris — and later other uni- bargaining-position for royalties. It thus took versities — started to offer (manual) copy- more than a hundred years — until 1667 — services to students, the stationers that were before John Milton was the first author who licensed to provide this service still had the received something (£8) from the Company obligation to lend out works for free to people for his book Paradise Lost. It was in this set- who wanted to make the copies themselves.4 ting that in 1704 — when the Company’s 150 It is only with the advent of Mercantil- year-monopoly was about to expire — Daniel ism that something resembling true intellec- Defoe made a good case for changes in his: 10 tual property appeared.5 In 1449 Henry VI Essay on the Regulation of the Press. Par- awarded the first to a Flemish stained tially in response to it the Statute of Anne was 11 glass maker who was introducing a new tech- erected in 1710. It stated that the monopoly nique. Not long thereafter, in 1468, a 5 year on copying was as of that moment vested in monopoly for the use of the printing-press each individual author for his own titles, and was awarded to an investor in Venice. Eight years later the same thing happened in the

UK, when a monopoly was awarded (liter- 7 Bettig, “Critical Perspectives on the History and Philoso- 6 ally ‘the ’) to Westminster Abbey. phy of Copyright”, pp. 139-140. These and copyrights were awarded to 8 Bettig, “Critical Perspectives on the History and Philoso- stimulate investments, just as the monopolies phy of Copyright”, pp. 138-139; Hesse, “The rise of in- granted to other mercantile operations such as tellectual property, 700 B.C. - A.D. 2000: an idea in the balance”, p. 31. 9 . Free culture: The nature and future of 2 Ronald Bettig. “Critical Perspectives on the History and creativity. New York: Penguin, 2004, p. 85; Harry Hill- of Copyright”. In: Critical Studies in Mass man Chartrand. “Christianity, Copyright, and Censorship Communication (1992), p. 131, p. 134. in English-Speaking Cultures”. In: Journal of Arts Man- 3 Ibid., p. 136. agement, Law & Society (1992), p. 253, p. 10; Irr, “Lit- 4 Ibid., p. 137. erature As Proleptic Globalization, or a Prehistory of the 5 Caren Irr. “Literature As Proleptic Globalization, or a New Intellectual Property”, pp. 781-782. Prehistory of the New Intellectual Property”. In: South 10 Eva Hemmungs Wirten. No Trespassing: Authorship, in- Atlantic Quarterly 100 (2002), pp. 773–802, p. 779. tellectual property rights, and the boundaries of global- 6 Carla Hesse. “The rise of intellectual property, 700 B.C. - ization. University of Toronto Press, 2004, p. 17. A.D. 2000: an idea in the balance”. In: Daedalus (2002), 11 M. Boldrin and D. K. Levine. Against intellectual p. 26, p. 29; Hastings Center. “A History of Patents”. In: monopoly. Cambridge: Cambridge University Press, Hastings Center Report (2007), S4, p. 4. 2008, p. 48.

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for a period of 14 years only.12 In 1886, one year after Hugos death, and at his instigation, the for 2.2 The French Revolution: Universal the Protection of Literary and Artistic works Natural Rights was drafted by the Association Litéraire et In 1793, in the turmoil following the French Artistique Internationale.15 It required signa- Revolution, the Chénier Act was passed in tories to apply their own copyright laws also France. This was the first copyright-act of to works from other signing nations, and it France. It was named after André Marie required copyright to last for 50 years after Chénier, a revolutionary and a famous poet the authors death, and for it be automatic, of the early Romantic movement. Besides without requiring central registration of the the right to sell publishing rights, it also as- work, or any other formality.16 In 1887 this signed to the author a number of natural rights convention was signed by France, Belgium, that were considered inalienable, and that thus Germany, Great Britain, and four other Euro- could not be sold. They were the right to de- pean countries. It was preceded by 4 years termine the first publishing date, the right of by the Paris Convention for the Protection of attribution, the right to prevent modifications Industrial Property of 1883, which protected to ones work, and the right to withdraw it from patents and . The Berne Conven- the market. tion was revised in 1908, 1928, 1948, 1967 Regardless of the talk of natural rights, and 1971 to accommodate new media. With copyrights were by then still a national af- the passing of decades it was signed by over fair. Copyrights of foreign authors were not 160 countries, but only in 1989 by the United respected, and only a few specific bilateral States. treaties for protection were in power. In the Netherlands and in the areas that later would 2.3 The American Century: Business and become Germany, there even were no offi- Globalisation cial copyrights, and copying was controlled In the United States the first national copy- by publishers among themselves there. It was right was introduced in 1790. It was mostly in this climate that France in 1852 unilater- a copy of the Statute of Anne, with the dif- ally declared that it would protect the copy- ference that the 14-year authors monopoly rights of all foreign authors. This was not could be extended once with another 14 years as big a sacrifice for France as it seems, be- at the authors request.17 It was written just cause at that time much more literature was three years after the American Constitution, exported from France than came back from in which a clause on intellectual property had the rest of the world.13 It was thus in 1878 that already been included (article 1, section 8, the famous French author Victor Hugo (au- clause 8):18 thor of Les Miserables) still complained in his keynote speech at the Congrès Litéraire of the “The Congress shall have Power To World Exhibition in Paris, that his books were . . . promote the Progress of Science illegally printed and sold in Belgium. He con- and useful Arts, by securing for lim- tinued to rally for international copyrights for ited Times to Authors and Inventors the rest of his life.14 15 Boldrin and Levine, Against intellectual monopoly, p. 34; 12 Lessig, Free culture: The nature and future of creativity, E. W. Ploman and L. C. Hamilton. Copyright: intellectual pp. 85-91; Chartrand, “Christianity, Copyright, and Cen- property in the information age. Westport: Routledge & sorship in English-Speaking Cultures”, p. 8; Wirten, No Kegan Paul, 1980, p. 49. Trespassing: Authorship, intellectual property rights, and 16 Wirten, No Trespassing: Authorship, intellectual property the boundaries of globalization, p. 17. rights, and the boundaries of globalization, p. 36. 13 Wirten, No Trespassing: Authorship, intellectual property 17 Bettig, “Critical Perspectives on the History and Philoso- rights, and the boundaries of globalization, pp. 21-23. phy of Copyright”, pp. 145-147. 14 Ibid., pp. 5-15. 18 Ibid., p. 148.

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the to their respec- 1989, and worldwide exports doubled from tive Writings and Discoveries” that year until 1991 to $2.2 billion. The ex- port of US corporations mainly producing IP The founding fathers were concerned with was 36 billion 1991, and it grew to 89 billion the dangers of (centralized) monopolies, and in 2001 (which is more export than sectors they thus determined that copyrights should such as auto- and airplane-industries generate, be limited in time and vested in individual au- but at the US national level traditional indus- thors only. Also their standpoint — and that tries are still larger).21 In 1984 some of these of many prominent Americans — was that the corporations, among which Disney and Time United States as a newly independent coun- Warner, together with IBM, General Electric try could freely print and use foreign litera- and various other organizations founded the ture. Even in 1842 a US publisher declared: International Intellectual Property Alliance: a “All the riches of English literature are ours lobby organization that wanted, and wants, . . . Why dam the rivers of knowledge?”. the US-government to defend their interests In 1841, as a result of the Folsom vs Marsh by pressing for more IP rights, both nationally case — which was about the publishing of and internationally.22 president Washingtons letters for use in a bi- In response to this, US Congress signed the ography — the concept of was intro- Berne Convention in 1986. This happened duced into US . With the Copy- just before the start of the Uruguay round of right Act of 1976 this right of fair use became the General Agreements on Tariffs and Trade law, and it was granted depending on: the pur- (GATT). At this round the World Trade Or- pose of the copying (educational or commer- ganisation (WTO) was created to replace the cial), whether the work copied from was fac- GATT treaty. Near the end of it, the US, tual or fiction, the amount that was copied in together with most of the West, pressed for relation to the totality of the work, and the inclusion of IP regulations in the WTOs set effects that the copying would have on the of treaties.23 They were successful, and the 19 market for the original work. Another im- agreement on Trade-Related aspects of In- portant change introduced by this act was that tellectual Property rights (TRIPs) became a commissioners, besides employers, were now fact. It went into effect in 1995, allowing for also considered authors, stretching the limits a grace period until 2005 before developing posed by the Constitution. countries needed to have implemented strict By this time the United States had still IP-regulations.24 Since WTO-membership en- not signed the Berne Convention, and for- tailed accepting all WTO-treaties, many de- eign authors still had no rights unless they published their works in the US first. Many 21 B. E. A. US Department of Commerce. Gross Output by US-publishers however did make use of the Industry in Current Dollars. 2008. URL: http://www. Berne Convention for protecting their own bea.gov/industry/gdpbyind_data.htm, p. 1; works, by simultaneously publishing them in Wirten, No Trespassing: Authorship, intellectual prop- Canada (which did sign the Berne Conven- erty rights, and the boundaries of globalization, pp. 89- 20 91; Boldrin and Levine, Against intellectual monopoly, tion). Over the years, however Intellectual p. 109. Property had become more profitable to the 22 Wirten, No Trespassing: Authorship, intellectual property US: movie and television series exports to Eu- rights, and the boundaries of globalization, pp. 90-93. rope had risen by 225% between 1984 and 23 S. Deng et al. “A Guide to Intellectual Property Rights in Southeast Asia and China”. In: Business Horizons 39 19 Irr, “Literature As Proleptic Globalization, or a Prehis- (1996), pp. 43–51, p. 46; Wirten, No Trespassing: Au- tory of the New Intellectual Property”, p. 789; Wirten, thorship, intellectual property rights, and the boundaries No Trespassing: Authorship, intellectual property rights, of globalization, pp. 55, 92-106. and the boundaries of globalization, p. 69. 24 Christopher May. “The denial of history: reification, in- 20 Wirten, No Trespassing: Authorship, intellectual property tellectual property rights and the lessons of the past.” In: rights, and the boundaries of globalization, p. 94. Capital & Class 88 (2006), pp. 33–56, pp. 34-35.

5 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma veloping nations (and other nations such as It was under this law that in 2001 Dmitry China and Russia) that never would have Sklyarov, a Russian programmer working for signed the Berne Convention, now were effec- a company offering e-book decryption soft- tively forced to implement strict IP laws in ex- ware, was arrested by the FBI after giving a change for access to the world-market.25 With presentation on e-book security at a confer- this the US — who in the past had liberally ence in the United States. He was released used British IP — now practically stated: ’do only after significant public protests, . . . and as we say, not as we did’.26 of course, because the DMCA did not apply IP-protection went further in the US it- in Russia.30 self. After extensive lobbying of Disney and others the Copyright Term Extension Act 3 Clarification of Concepts (CTEA) was passed in 1998. It extended In order to have a clear picture of what IP ex- copyrights by 20 years to 70 years after the actly is, we give an explanation of the concept authors death, and to 95 years for corporate of Intellectual Property here, and clarify how 27 IP. This act was also pejoratively named it is the application of the concept of property the Mickey Mouse Protection Act by Stan- to that of the intellectual creation. ford Law School prof. Lawrence Lessig, as it — just in time — prevented many animation- 3.1 Property figures of Disney from falling into the pub- Property is historically a contested concept. lic domain.28 In that same year (1998) the Especially by Marxist authors much interest- Digital Millennium Copyright Act (DMCA) ing critique of property has been produced.31 was passed. This act made the circumven- Nevertheless, in modern, liberal societies, tion of copy protections (DRM) illegal, even property is usually taken for granted, and for if attempted for legal ends such as fair use.29 good, and generally well-understood reasons, such as the efficiency of markets at maximiz- 25 S. Bannerman. “Copyright and the Global Good? An ing production and regulating the allocation of Examination of ’The Public Interest’ in International Copyright Regimes”. In: Intellectual Property Rights and resources. Property as such is not contested Communications in Asia: Conflicting Traditions (2006), here. p. 58, p. 4; Alexandra George. Globalization and intel- Property as it is normally understood, how- lectual property. Hampshire: Ashgate, 2006, pp. XXIII- ever, applies to physical, and easily delineable XXVII, 139-143. 26 May, “The denial of history: reification, intellectual prop- goods, such as houses, a car, or land. Farm- erty rights and the lessons of the past.”, p. 51; Wirten, land for example can be fenced off, and it is No Trespassing: Authorship, intellectual property rights, definitely physical. Land and other physical and the boundaries of globalization, pp. 102-107, 138; Y. goods have two characteristics that are very Benkler. The wealth of networks. New Haven: Yale Uni- relevant from an economic standpoint: they versity Press, 2006, p. 414. 27 R. A. Spinello. “The future of intellectual property”. are rivalous, and exclusive. First of all land is In: Ethics and information technology 5 (2003), pp. 1– rivalous, in that if you would farm my land, 16, p. 4; Wirten, No Trespassing: Authorship, intellec- for example, I could not farm it at the same tual property rights, and the boundaries of globalization, time. Only one person can use a rivalous good p. 10. 28 Lawrence Lessig. The future of ideas: The fate of the com- for a certain purpose at the same time. Sec- mons in a connected world. New York: Random House, ondly land is exclusive, I can keep you off my 2001, p. 107; A. D. Thierer, W. Crews, and D. McCul- land if I want to. For exclusive goods it is easy lagh. Copy Fights: the future of intellectual property in to prevent others from using them. Rivalous- the information age. Washington: Cato Institute, 2002, p. XXVI. 30 Wirten, No Trespassing: Authorship, intellectual property 29 Spinello, “The future of intellectual property”, p. 5; rights, and the boundaries of globalization, p. 141. Boldrin and Levine, Against intellectual monopoly, 31 D. Pels. “Power or property? levy, foucault, poulantzas, p. 122; Lawrence Lessig. Code: Version 2.0. New York: and the dilemma of reduction”. In: Sociologisch Tĸsd- Basic Books, Inc., 2006, p. 174. schrift (1982), pp. 212–237, pp. 218-231.

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ness and exclusivity make private ownership “If nature has made any one thing of physical goods both beneficial, and possi- less susceptible than all others of ble.32 exclusive property, it is the action of To further explain the benefits of having the thinking power called an idea. land in private property, one can look back . . . Its peculiar character, too, is that at the times before the enclosures of the 15th no one possesses the less, because and 16th centuries in Britain. This forms the every other possesses the whole of setting for a thought-experiment by Garrett it. He who receives an idea from me, Hardin, known as the Tragedy of the Com- receives instruction himself without mons: There is a grazing-pasture, held in lessening mine; as he who lights his common by a village of shepherds. Each taper at mine, receives light without shepherd can use it for grazing his flock of darkening me. . . . Inventions then sheep. Now if there are no further regulations cannot, in nature, be a subject of or inhibitions, it will be in the personal inter- property.” est of each shepherd to increase the size of his flock, as the reduced quality of the pasture Consequently, a Tragedy of the Commons weights on him less, than the added benefit of is unlikely to happen for the intellectual once an extra sheep. Therefore the pasture is go- it has been created. Because once created, ing to be over-grazed, and rendered useless.33 ideas can be learned, instead of physically Thus applying private property to things such taken from their owners such as in the case of as land is not a bad idea. theft or over-grazing.36 Ideas are not pastures, their quality does not dimish with sharing.37 3.2 Intellectual 3.3 Intellectual Property The intellectual creation is an idea, or the for- mulation of an idea. It is a work of the mind, Intellectual Property is the application of the a point of view, or a fleeting thought. What concept of property to the intellectual. There could be less similar to a piece of land or a are different kinds of IP, such as: patents, helm of grass, than the intellectual? Impor- which apply to applicable ideas, and are en- tantly the intellectual is non-rivalous and non- forceable regardless of another person in- exclusive.34 To quote Thomas Jefferson:35 venting the same thing independently; copy- rights, which apply to creative expressions 32 J. B. DeLong and A. M. Froomkin. “Speculative microe- fixed in a medium; trade-marks, which ap- conomics for tomorrowâA˘ Zs´ economy”. In: Internet pub- ply to product-names and logos; and trade- lishing and beyond: The economics of digital information secrets, such as the Coca-Cola recipe.38 The and intellectual property (2000), pp. 6–44, pp. 2-4. 33 Gian Maria Greco and Luciano Floridi. “The tragedy focus here will be on copyrights and to a lesser of the digital commons”. In: Ethics and Information extent patents. Trade-marks and trade-secrets Technology (2004), pp. 73–81, p. 74; Dan Hunter. “Cy- are not being criticised here as they are funda- berspace as Place and the Tragedy of the Digital Anti- commons”. In: California Law Review (2003), p. 439, 36 Lessig, The future of ideas: The fate of the commons in a p. 102. connected world, p. 255. 34 Lessig, The future of ideas: The fate of the commons in 37 R. Ghosh and L. Soete. “Information and intellectual a connected world, pp. 21-22; Lessig, Code: Version 2.0, property: the global challenges”. In: Industrial and Cor- p. 181. porate Change 15 (2006), p. 919, p. 928. 35 John Perry Barlow. “The economy of ideas: a framework 38 Barlow, “The economy of ideas: a framework for patents for patents and copyrights in the Digital Age (Every- and copyrights in the Digital Age (Everything you know thing you know about intellectual property is wrong)”. In: about intellectual property is wrong)”, p. 12; Boldrin and Wired 2 (1994), p. 85, p. 1; Lessig, The future of ideas: Levine, Against intellectual monopoly, p. 8; Irr, “Liter- The fate of the commons in a connected world, p. 94; ature As Proleptic Globalization, or a Prehistory of the James Boyle. “Second Enclosure Movement and the Con- New Intellectual Property”, p. 775; Deng et al., “A Guide struction of the , The”. In: Law and con- to Intellectual Property Rights in Southeast Asia and temporary problems 66 (2003), p. 33, p. 53. China”, p. 44.

7 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma mentally different from the first two, and pose struct a fence around it, making fruit scarce much fewer problems. again, and put a fruit-store in front of it, where A distinct characteristic of IP is that it is or- the fruits are sold piece-wise: a Paradise Lost. thogonal to, and thus crosses with, physical It deprives those who cannot pay for some- property.39 For example if I buy a book, I do thing which could, in essence, be multiplied own the physical object (the paper), but I am for free.42 Thus physical objects and intellec- not free do with it as I please, because some- tual creations are different to such an extent as one else still owns the expressions and ideas to make property and intellectual property two inside the book. As long as books can only fundamentally different concepts, enabling us be commercially printed, and this printing in- to hold different views on the justifiability of volves piecemal costs, this is not so problem- IP than those we hold for proper property. atic. Because adding a little fee for the au- thor is sensible under those conditions, and 4 Involved Interests enforcement is easy because of the centralized Now we will look at the various parties and in- nature of industrial publishing. But as copy- terests that are involved in IP, namely authors, ing can be done at home and becomes free, publishers, the public, and society as a whole, both piece-wise selling and enforcement can and their respective stakes and needs. pose ethical problems, as we will argue. In short, the functioning of IP, and thus its justi- 4.1 Authors fiability depends on historic circumstances. The first group we look at are the authors Importantly, intellectual creations, once of the works. Over time this interest-group created, are not endangered by a tragedy of also came to include inventors, playwrights, the commons when held in common.40 They actors, artists, film-makers and performers.43 rather are endangered when appropriated and They are usually considered to be uniquely turned into property. This happens because creative, or inventive, creating something of what one could call a Tragedy of the Anti- which would have not been there without their commons, or more fittingly the Tragedy of efforts. the Lost Paradise.41 Imagine a small forest of The idea of an author, however, has been trees that, once mature, produce an endless criticized, both from non-western and post- amount of fruits. Pick a pear from a branch, modern perspectives. The non-western camp and immediately a new one appears, just as points to shared cultural heritage such as folk- edible as the first. Millions could eat from a stories, which cannot be ascribed to single single branch. This sounds like paradise, does authors, and which come to be through re- it not? A problem, however is that the trees do tellings, tellings in ever slightly better varia- not get there by themselves. They need plant- tions.44 Even in medieval Europe it was very ing, watering, and such care before they start uncommon for artists to claim authorship of to bear fruit. their works.45 In those times God, a people, Now, to provide themselves with a living 42 Siva Vaidhyanathan. “Copyright Jungle: Reporters seem the gardeners of the forest — based on their lost in the realm of copyright, where a riot of new re- experience with normal plantations — con- strictions threaten creativity, research, and history”. In: Columbia Journalism Review (2006), p. 42, p. 4; Lessig, 39 Thierer, Crews, and McCullagh, Copy Fights: the future The future of ideas: The fate of the commons in a con- of intellectual property in the information age, pp. XVII- nected world, pp. 104, 115; R. De George. “Information XVII. technology, globalization and ethics”. In: Ethics and In- 40 Ghosh and Soete, “Information and intellectual property: formation Technology 8 (2006), pp. 29–40, p. 29. the global challenges”, p. 928. 43 Wirten, No Trespassing: Authorship, intellectual property 41 Spinello, “The future of intellectual property”, p. 3; Ben- rights, and the boundaries of globalization, p. 107. kler, The wealth of networks, pp. 143-146; Hunter, “Cy- 44 Ibid., pp. 111-124. berspace as Place and the Tragedy of the Digital Anti- 45 Chartrand, “Christianity, Copyright, and Censorship in commons”, p. 104. English-Speaking Cultures”, p. 11.

8 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma a tradition, or a profession were identified as tioners held a monopoly on publishing, and the source of the creativity. Post-modern cri- used this strong bargaining position against tique of the concept of the author is similar authors. Later, in the 18th and 19th centuries, in that it views texts as shaped or even pro- American publishers were opposed to copy- duced by the discourses (conversations, other rights while many authors were in favour of texts) in which they are embedded.46 It sees them. Also, most big movie-studios are in the ’author’ as an invention of 18th century Hollywood now, and not along the East Coast Romanticism, as a ‘Privileged moment of in- where they started, because in 1909 they fled dividuality’. from New York to escape the enforcement of While acknowledging the sensibility of this patents on filming-equipment.49 While nowa- critique, it is so that, even if authors would live days Disney, Warner-brothers and other large with illusionary identities, there still is labour publishers built their business-models around involved in creation, or an efficient cause in IP, and lobbied for an extension of copyright- more philosophical terms.47 It takes time to terms long beyond the lifetime of individual create or transform something, and no mat- authors.50 ter how much it is reduced because of all the As a group, they have their own interests. other texts and facilities one can draw from, First of all corporations can live for much there always is a cost involved in terms of longer than humans, thus they are expected to time. Professional authors can thus at least be be interested the mentioned term-extensions. identified as a group because of their similar They depend on IP for their stock-value and set of interests, namely: some form of income thus their existence.51 They also need profits, or pay for their work; access to the cultural just as artists need an income, but a differ- heritage as input for new works; and attribu- ence is that for musical artists most of their tion and recognition by others.48 income comes from concerts, not from CD- sales, while this is the other way around for 4.2 Publishers record-labels. Most notably publishers are middle-men between the author and the pub- Publishers are the companies who buy, con- lic, and they naturally are interested in main- tract, amass, licence and sell intellectual prod- taining this position.52 ucts. They work according to what Habermas called a factory model of culture, where cul- 4.3 Public ture is a finished ’product’ to be sold to ’con- sumers’, instead of something made for its With the public we here mean individuals in own sake. Later, they also included record- their private or cultural sphere. They are lay- labels, studios and private research and devel- men, but not in the sense of being passive con- opment companies. They are often referred to sumers that are only in need of easily acces- as authors in jurisprudence, though they have sible, cheap, quality content and such. Mem- quite different, and changing interests. bers of the public often are producers of cul- For example, in the 16th century the Sta- ture too. Many people contribute to culture in some 46 Spinello, “The future of intellectual property”, pp. 2-3,7; way or an other. In the past this could have Wirten, No Trespassing: Authorship, intellectual property been in the form of contributions to a religious rights, and the boundaries of globalization, pp. 4-7, 100- 109, 124; D. J. Halbert. Intellectual property in the infor- 49 Boldrin and Levine, Against intellectual monopoly, p. 36; mation age: the politics of expanding ownership rights. Lessig, Free culture: The nature and future of creativity, Westport: Quorum Books, 1999, pp. 123-126. pp. 53-54. 47 Wirten, No Trespassing: Authorship, intellectual prop- 50 May, “The denial of history: reification, intellectual prop- erty rights, and the boundaries of globalization, p. 21; erty rights and the lessons of the past.”, pp. 47-50. Spinello, “The future of intellectual property”, p. 8. 51 Benkler, The wealth of networks, p. 25. 48 Hesse, “The rise of intellectual property, 700 B.C. - A.D. 52 Ploman and Hamilton, Copyright: intellectual property in 2000: an idea in the balance”, p. 33. the information age, pp. 190-192.

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festival, or playing an instrument at a wed- plex organisms.56 However even from an an- ding party, while nowadays it also can be done thropocentric point of view (value begins and by playing in a local jazz-band or even in the ends with humans) social functions of culture form of creating a new level for a computer- can be considered to be important, if only in game, or by posting an answer to a question the derived sense of their value for humans.57 on the web. Some of these people are ex- For society, it first of all is important that perimenters with, and creators of whole new many creative works of good quality are pro- forms of culture, and some of them develop duced. Still, a greater availability of exist- into future professional authors and artists. ing (or even fewer and slightly inferior new An important distinction with authors and works) can also be good, as it will mean publishers, however, is that where the public greater access and therefore a further ex- participates in culture, they are foremostly in- tended cultural sphere. As, for example, this trinsically motivated. Their interests vary be- would allow for a better informed and edu- tween education, entertainment, personal de- cated public. In addition, an increase in the velopment, recognition and self-expression.53 diversity of cultural production could also be This makes them both interested in the avail- beneficial to society.58 ability of cheap, or free culture, and in being able to recombine (remix, mashup) and build 5 Fields of Power 54 upon existing cultural creations. We will conclude our clearing out of the con- ceptual muddle with a sketch of the fields of 4.4 Society power in which the interest-groups operate: law, economy, technical architecture and so- The societal interest of a nation or the world cial norms. in general, is the last interest discussed here. Its needs are things such as an informed pub- 5.1 Law lic opinion for the functioning of democra- The most conspicuous field of power is that cies, science and research for progress, and of law. Intellectual Property is created by law, art for general enjoyment and national pres- and IP could have been, and can be different, tige. These needs are of a collective nature or even not exist at all, all depending on the and are more long-term than the interests of law.59 The important question for this field is individual members of the public.55 whose interests will be law, that of authors, According to Luciano Floridi the infos- phere (which is his term for data, informa- 56 Charles Ess. “Floridi’s Philosophy of Information and In- tion and knowledge) even is a moral pa- formation Ethics”. In: The information society : an inter- national journal (2009), pp. 159–168, pp. 159-163. tient (morally relevant entity) in its own right. 57 Wirten, No Trespassing: Authorship, intellectual property Analogous to how environmentalist philoso- rights, and the boundaries of globalization, p. 145; Greco phers assign an intrinsic value to ecosystems, and Floridi, “The tragedy of the digital commons”, p. 78. 58 he takes information as the primary ontolog- Bannerman, “Copyright and the Global Good? An Ex- amination of ’The Public Interest’ in International Copy- ical category from which moral value is de- right Regimes”, pp. 10-14; Hesse, “The rise of intellec- rived, including the value of humans as com- tual property, 700 B.C. - A.D. 2000: an idea in the bal- ance”, pp. 33-40; Boyle, “Second Enclosure Movement 53 . Why Software Should be Free. 1992. and the Construction of the Public Domain, The”, pp. 58- URL: http://www.gnu.org/philosophy/shou 62; Ploman and Hamilton, Copyright: intellectual prop- ldbefree.html, p. 6. erty in the information age, p. 220. 54 Lessig, Code: Version 2.0, p. 196. 59 Wirten, No Trespassing: Authorship, intellectual property 55 Wirten, No Trespassing: Authorship, intellectual property rights, and the boundaries of globalization, p. 13; Lessig, rights, and the boundaries of globalization, pp. 133-134; Free culture: The nature and future of creativity, p. 84; Vaidhyanathan, “Copyright Jungle: Reporters seem lost Thierer, Crews, and McCullagh, Copy Fights: the future in the realm of copyright, where a riot of new restrictions of intellectual property in the information age, pp. XIV- threaten creativity, research, and history”, pp. 2-3. XVII.

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publishers, the public, or society. Something market and the money earned there are both which is easily forgotten, is that the law both an instrument for things such as lobbying, and is the subject of the disputes about IP, and — the object of the dispute.62 The rules and the by referring to the illegality of certain acts — ’board’ that the economic game is played on, also used as a means in the conflicts about it. are not neutral relative to interests, nor given Law is considered to be established demo- as they are. cratically in the West, but lobbying and mis- The way in which the economy functions is information also play their part there. Espe- determined both historically, and politically. cially internationally, force and the bundling Since the works of Adam Smith it took cen- of treaties, such as in the case of the WTOs turies to become what it is now, and it is still TRIPs, which included IP clauses, are also developing. Law, norms, and the public opin- important ways to shape the law. In addi- ion play a role in shaping and structuring the tion the interpretation of existing laws pro- market-place by, for example, limiting what vides quite some leeway for establishing ju- can and cannot be sold, and under what con- risprudence (which then practically functions ditions (such as in the case of the abolishing as new laws, especially in the UK and US, and of slave trade). There even are Pirate Parties other tradition-based legal systems), and thus now (already having one seat in the European money to hire more and better lawyers makes Parliament for Sweden) that try to reform the an important difference here too.60 economy by abolishing copyrights as applied Currently IP is relatively strong, and it lasts to home-copying. on average at least 80 years longer than the 14 Currently the market-system as it exists for years it should to induce the creation of new physical goods is applied to intellectual cre- works according to various estimates.61 En- ations.63 In a sense it is thus structured to forcement on the other hand, especially out- the wishes of the publishers. But the lim- side of the commercial sphere, is very weak. ited extent to which copyrights are enforce- Both the existence of fair use exceptions (in able creates a free-rider problem, as copy- the US), and the fact that in some countries ing is most likely displacing some sales at (such as the Netherlands) downloading (not least. Sales to students went down with $25, uploading / providing), and sharing files pri- from $126 to $101 according to one survey, vately with friends, is legal, do allow for some though it is hard to exclude confounding fac- leeway, though exceptions are uncertain and tors, such as them preferring to spend their vary from case to case. money on other things than CDs, such as mo- bile phones for example.64 Thus the current 5.2 Economy IP-situation seems less than perfect even for Another important field of power is the econ- those it favours, as music-sales in the US omy and its rules. The question here is how dropped from 14.6 to 10.1 billion between much wealth or use-value will be created in 1999 and 2008, while file-sharing grew enor- total, and who will get what share of it. The 62 Lessig, Code: Version 2.0, p. 323. 60 Barlow, “The economy of ideas: a framework for patents 63 Barlow, “The economy of ideas: a framework for patents and copyrights in the Digital Age (Everything you know and copyrights in the Digital Age (Everything you know about intellectual property is wrong)”, p. 6; Lessig, Free about intellectual property is wrong)”, p. 2; Wirten, No culture: The nature and future of creativity, pp. 180-191; Trespassing: Authorship, intellectual property rights, and Lessig, Code: Version 2.0, pp. 313-331. the boundaries of globalization, p. 77. 61 R. Pollock. “Forever minus a day? Some theory and 64 R. Rob and J. Waldfogel. “Piracy on the High C’s: Mu- empirics of optimal copyright”. In: Society for Eco- sic Downloading, Sales Displacement, and Social Wel- nomic Research on Copyright Issues Annual Congress. fare in a Sample of College Students”. In: The Journal of Humboldt-UniversitÃd’t Berlijn: Cambridge University. Law and Economics 49 (2006), pp. 29–62, p. 60; Felix 2007, pp. 2-30; Lessig, Code: Version 2.0, p. 78; Ploman Oberholzer-Gee. “The Effect of File Sharing on Record and Hamilton, Copyright: intellectual property in the in- Sales”. In: The journal of political economy (2007), formation age, pp. 175-181. pp. 1–42, p. 39.

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mously during this period. cryption, these are not likely to be very effec- tive without banning the use of encryption and 5.3 Architecture policing all network-communication.68 A field of power that is often missed, is that of 5.4 Norms architecture. With this we mean physical bar- riers, such as walls, gates, locks and fences, The last, but not least important field of and their virtual counter-parts. In the software power, is that of norms. These are the norms, world DRM (Digital Rights Management; en- views and ideas that make up the public opin- crypting the data, and allowing it only to be ion. It is how people think about IP, how they opened by certain programs) is the equivalent act towards it, and also how they view oth- to a lock. Lawrence Lessig called this Lex In- ers’ behaviour towards it. Most effective laws formatica, as DRM often functions as a law.65 depend on, and correspond to, widely held DRM makes very strict control possible, norms, rather than on constant policing.69 down to how often one can play an iTunes As historians know, norms differ with time song or whether one can print a PDF file. and place, and are often determined by his- Architecture is determined by private compa- toric factors. Specific ways in which norms nies and there are not many possibilities for can be (partially) steered are public rela- other parties to influence it, apart from the tions campaigns, ideologies, and views ex- buying-decisions of consumers, who already pressed in movies and the press.70 In addi- do not seem to like DRM implementations tion, as Michel Foucault made clear, language and their limitations.66 An other way around itself — in the form of discourses — also DRM, are cracks and DRM-free copies pro- co-determines what is considered reasonable, duced by hackers or crackers. However, this and what is marginalized. Important for this latter strategy has been made illegal in 1998 are the analogies used, and the way the sit- with the DMCA, which bans the breaking of uation is framed: whether one equates data DRM, even for exercising fair use rights. This to physical goods, and thus considers copy- means that DRM can not just act as a law, but ing comparable to the stealing of a purse; or even legally override law such as that granting whether one calls it sharing, as in the sharing fair-use.67 of ideas with a friend.71 On the other hand most of the current ar- In general the public opinion is divided. chitecture is quite opposed to IP and DRM. While almost everyone in the West sees This partially is so for the historic reason that property-rights as useful for physical goods, the web was designed by academics, and thus many doubt its effects when applied to ideas according to the academic values of freedom and expressions.72 There seems to be a gener- and decentralization. Attempts are currently ational divide as well: Contrary to those born being made to change this by making the in- and raised before the web, the people who ternet and computers less neutral with regard 68 Lessig, Free culture: The nature and future of creativity, to the kind of data that is transferred, but be- pp. 121-125; Lessig, Code: Version 2.0, p. 346. cause people copying things can also use en- 69 Lessig, Code: Version 2.0, p. 11; Greco and Floridi, “The tragedy of the digital commons”, p. 79. 65 Lessig, Free culture: The nature and future of creativity, 70 Bettig, “Critical Perspectives on the History and Philoso- p. 148; Lessig, Code: Version 2.0, pp. 1-8, 24, 78, 138, phy of Copyright”, pp. 151-152. 288. 71 Bannerman, “Copyright and the Global Good? An Exam- 66 Lessig, Code: Version 2.0, p. 37; Dan Cohen. Kindle’s ination of ’The Public Interest’ in International Copyright DRM Rears Its Ugly Head... And it is Ugly. 2009. URL: Regimes”, p. 12. http://www.geardiary.com/2009/06/19/ 72 Anders Sandberg. Intuitive pirates: why do we accept file kindles-drm-rears-its-ugly-head-and- sharing so much? 2009. URL: http://www.practi \it-is-ugly/, p. 1. calethicsnews.com/practicalethics/200 67 Lessig, Free culture: The nature and future of creativity, 9/04/intuitive-pirates-why-do-we-acce pp. 151-162; Lessig, Code: Version 2.0, pp. 174-175. pt-\file-sharing-so-much.html, pp. 1-3.

12 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma grew up with it, and have a fuller understand- it. Such land could become ones property by ing of the digital world (and arguably a lesser clearing it out and farming it. Central to the of the world of professionals), are mostly op- original Lockean version was that one trans- posed to strict IP. In addition, more than 60% forms something useless into something use- of internet-users, and thus more than 100 mil- ful, that one actively uses it, takes no more lion people in the US alone, take part in file- than one uses (the waste prohibition), and that sharing.73 For youngsters (from the UK), this one leaves enough of the same for others (suf- number is even higher, as 95% of them par- ficiency provisio), so no one is worse off.76 In takes in file-sharing. Of the music on their more formal terms: as long as the situation MP3 players, about half had been copied ille- at T2 is pareto optimal (no one worse off, at gally.74 least one better off), compared to the situation at T1 and the prohibition and provisio are met, 6 Justifications then one has a full property right over things Now that we have a clear picture of IP, we will produced or transformed through ones labour. go into the two justifications for IP most com- Now because expressions are not just non- monly held, namely the labour desert theory, rivalous in their usage, but also in the sense and the theory of stimulation. that there can be a practically unlimited num- ber of possible phrasings, the theory could fit 6.1 Labour Desert for copyrighted original works. However for The first justification for IP is John Lockes’ more extended applications of copyright (such labour desert theory. In a nutshell: People as to story-lines or sequels) and as applied to own themselves, and derived from this they the input of derived works and remixes, the also own the fruits of their labour, as oth- labour desert justifications’ sufficiency provi- erwise they would be slaves. Now creating sio, and especially the requirement to be ac- or inventing things can be considered labour. tually using it (the waste prohibition), pose Therefore works of the intellect are property, a problem: Not just for works no longer in no less than the goods manufactured by a print, but also because non-rivalousness ar- workman.75 This justification is what philoso- guably makes any forgone use a waste. Fur- phers would call a deontological justification, thermore, patents on anything but finished in the sense that it is a rights-based approach, consumer products certainly do not meet the that does not take the consequences of the ex- requirements, as it is common for future in- ercise of these rights, into account. ventions to depend on earlier ones, and thus for new courses of innovation to be barred In Lockes original description unowned 77 waste-land is used as an example of some- by patents (so called patent thickets). Thus thing that can be appropriated by labouring while there may still be something to be said for it, we do not consider this justification for 73 John Tehranian. “Infringement Nation: Copyright Re- IP binding here. form and the Law/Norm Gap”. In: Utah Law Review 2007 The labour desert justification is mostly (2007), p. 543. 74 Katie Allen. Home copying - burnt into teenage psyche. held in Europe and is included in the Berne 2008. URL: http://www.guardian.co.uk/musi Convention. In France it is specifically en- c/2008/apr/07/news.katieallen, p. 1. 75 Bettig, “Critical Perspectives on the History and Philos- 76 Spinello, “The future of intellectual property”, p. 10. ophy of Copyright”, p. 141; Spinello, “The future of in- 77 Lessig, The future of ideas: The fate of the commons tellectual property”, pp. 10-11; Irr, “Literature As Pro- in a connected world, pp. 204-206, 212-215; Thierer, leptic Globalization, or a Prehistory of the New Intel- Crews, and McCullagh, Copy Fights: the future of in- lectual Property”, p. 788; A. R. Chapman. “Approaching tellectual property in the information age, pp. 221-228; Intellectual Property as a Human Right: Obligations Re- Benkler, The wealth of networks, p. 39; Boldrin and lated to Article 15 (1)(c)”. In: United Nations Committee Levine, Against intellectual monopoly, pp. 51-85, 92-95, on Economic, Social, and Cultural Rights. New York 27 251-265; Hunter, “Cyberspace as Place and the Tragedy (2000), pp. 4-30. of the Digital Anticommons”, pp. 105-107.

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coded in the so called ’droits moraux’, or sense, it is quite a workable theory. It can de- moral rights, that French authors have in addi- liver a very sensible justification for IP. tion to economic rights.78 The moral rights en- It should be noted, however, that the stim- tail things such as the right to decide whether ulation justification hinges on two assump- something is to be published, the right to with- tions that can be questioned. The first is draw it from the market, and the right of attri- whether most, or all, authors are indeed mo- bution. They cannot be sold by the author, and tivated by direct financial gains. Even if are perpetual.79 The interests that the labour some are, there might still be enough intrin- desert justification centers on mostly are those sically, or differently motivated authors left of authors and publishers.80 to provide for new cultural works (as we see in the competition between bloggers and 6.2 Stimulation news-paper journalists).83 The second is that The second justification for IP is the stimu- scarcity (a monopoly property right) is the lation of creation theory. It starts with the only feasible way to extract money from the idea that authors and inventors are motivated market.84 While historically, in the age of by (the possibility of) financial gain. Then printing, this may have been true, we will ar- it reasons that under unregulated free market gue that while the first assumption at least par- conditions people will copy and share with- tially does hold, the second is not an a-priori out paying writers or inventors. To fix this, given, and certainly does not need to hold any authors and inventors are given a monopoly more. over their creations, so they can extract money The influence of the stimulation of creation from the market. By making creation thus justification can be seen in the fact that prac- (more) profitable, more people will be in- tically everywhere copyrights are for a lim- clined to create.81 In philosophical terms this ited time only, to eventually benefit the cul- approach is utilitarian, as it is primarily about tural commons.85 Also the use of monopolies consequences, not about rights. to stimulate creation is explicitly mentioned in , as introduced by William the American constitution: “... securing for Bentham, was a real improvement over pre- limited Times to Authors and Inventors the ex- viously held ethical theories, as by looking clusive Right to their respective Writings and at the consequences things had for the gen- Discoveries ... to promote the Progress of Sci- eral well-being, instead of for God, or soci- ence and useful Arts”. The interests central ety as it existed, it was the first ethical theory to the stimulation justification are those of the that put normal human beings at the center.82 public and society. There may be theoretical problems with utili- tarianism such as how welfare is to be defined, 7 Developments and to what degree an increase in welfare for one person can legitimately weight up to that As we are familiar with the two justifications of another, but if kept in check by common for IP, we will now sketch the historic de- velopments that have changed the extent to 78 Chartrand, “Christianity, Copyright, and Censorship in English-Speaking Cultures”, p. 10. 83 N. W. Netanel. “New Media in Old Bottles? Barron’s 79 Hesse, “The rise of intellectual property, 700 B.C. - A.D. Contextual First Amendment and Copyright in the Dig- 2000: an idea in the balance”, p. 39; Ploman and Hamil- ital Age”. In: George Washington Law Review 76 (2008), ton, Copyright: intellectual property in the information pp. 113-118. age, pp. 108-113. 84 Lessig, The future of ideas: The fate of the commons in a 80 Wirten, No Trespassing: Authorship, intellectual property connected world, p. 265; Lessig, Free culture: The nature rights, and the boundaries of globalization, p. 117. and future of creativity, pp. 73-84; Benkler, The wealth of 81 Stallman, Why Software Should be Free, p. 7. networks, p. 37. 82 George, “Information technology, globalization and 85 Vaidhyanathan, “Copyright Jungle: Reporters seem lost ethics”, p. 31; Chartrand, “Christianity, Copyright, and in the realm of copyright, where a riot of new restrictions Censorship in English-Speaking Cultures”, p. 8. threaten creativity, research, and history”, p. 6.

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which current IP-laws are justifyable. of the 20th century onwards, a lot of pro- fessionalisation has been going on in culture: 7.1 Information Society leading to the so called factory model of cul- The first development we will describe is the ture. At least for some forms of culture this rise of the Information Society. The advent has brought us many quality improvements. of the Information Society is what makes in- So totally removing all forms of IP and tellectual creations and IP globally relevant. market-based compensation for creation does Information is namely becoming a major re- not seem justified. Especially because in our source, as more and more people spend more Information Society immaterial goods will of their productive capacity creating things become an ever more important and bigger that take the form of information; designs, share of total production. In addition, leav- movies, research and other digitized or easily ing all private sector creation and innovation digitizable works, instead of physical goods. to hobbyists or factories of physical goods According to Alvin Toffler, with the advent will be detrimental, because even if it were of the Information Society, we are currently possible, there are many talented artists and entering the third of three waves. The first was actors that would benefit society more when the agricultural revolution, in which hunter- they would be creative on a full-time basis. gatherer societies were replaced by agricul- 7.2 Second Enclosures tural ones. Land became the most impor- tant resource, and was therefore increasingly The ongoing private appropriation of informa- enclosed. Then came the Industrial Revolu- tion has been unfavorably compared to the en- tion in which capital and the means of pro- closures of the 16th century and some even duction became all important. It was a time called it a virtual land-grab.89 More and more of mass-production, mass-consumption, and creative works, and more kinds of works (first mass-media. Now, in the third wave, informa- just books, then music, now also software) are tion is becoming the most important resource, being appropriated.90 Not just new, but also hence its protection with stronger IP-laws.86 old themes that are part of our cultural her- There are now even what a true Hacker Mani- itage are being enclosed (such as ’Pinokkio’ festo calls, not proletarians, but ‘cogitarians’: and ’Snow White and the Seven Dwarfs’).91 the wage labourers of the Information Soci- But it does not stop there: Plant-species that ety.87 have been used for generations, and even our Still; IP is to some extent justifiable in 89 Bettig, “Critical Perspectives on the History and Philos- that the increase of information production ophy of Copyright”, p. 797; Irr, “Literature As Prolep- also brings, and makes sensible, a division tic Globalization, or a Prehistory of the New Intellectual of labour between research and production, Property”, p. 797; Boyle, “Second Enclosure Movement and between various types of private research. and the Construction of the Public Domain, The”, pp. 33- Where in the past R&D mainly happened in- 74. 90 Irr, “Literature As Proleptic Globalization, or a Prehis- house, and in the service of the production- tory of the New Intellectual Property”, p. 795; Bettig, line, it is now becoming the core business of “Critical Perspectives on the History and Philosophy of many companies.88 Also from the beginning Copyright”, p. 149; Wirten, No Trespassing: Authorship, intellectual property rights, and the boundaries of glob- 86 Alvin Toffler. The third wave. New York: Morrow, 1980, alization, p. 108; Lessig, Free culture: The nature and pp. 35-40, 41-120, 153-187; Barlow, “The economy of future of creativity, pp. 135-136. ideas: a framework for patents and copyrights in the Digi- 91 Lessig, Free culture: The nature and future of creativity, tal Age (Everything you know about intellectual property pp. 21-23; Wirten, No Trespassing: Authorship, intellec- is wrong)”, p. 18. tual property rights, and the boundaries of globalization, 87 McKenzie Wark. A Hacker Manifesto. Harvard Univer- pp. 7, 109, 133; Barlow, “The economy of ideas: a frame- sity Press, 2004, pp. 24-47. work for patents and copyrights in the Digital Age (Ev- 88 Ghosh and Soete, “Information and intellectual property: erything you know about intellectual property is wrong)”, the global challenges”, pp. 923-924. p. 7.

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very own genes, especially those related to piece-wise production-cost, cannot, because diseases such as cancer, are being patented its price is kept artificially high. For exam- and locked away for profit in the US (by Myr- ple if someone sells bricks at 50 cents while iad Genetics and Monsanto among others).92 piece-wise production costs (including wages The terms of copyrights are also being ex- and management) are 20 cents, then the peo- tended; starting at 14 years, then 28, life + 50, ple to whom bricks bring a marginal bene- they now are the life of the author + 70 years, fit of between 20 and 50 cents would not be and these extensions happened retro-actively, able to buy them at 50 cents. This means a that is for authors long dead, as if this could loss to consumers, as they can not have the stimulate their creativity again.93 product, but also a loss to the producers, as it In short: Information is being forced into represents a sale they never make. Now be- the straight-jacket of the market for physical cause for virtual goods there are no marginal goods, and being enclosed to protect invest- costs once a single copy is created, there will ments, in hope of similar results as for land in always be a large (theoretically an infinite) the 16th century. But can we reasonably ex- deadweight loss.96 In the following figure (fig- pect any good from enclosures of the intellec- ure 1) the deadweight loss for virtual goods is tual? Markets are good for three reasons: First the bottom-right corner 97. of all they allow for decentralized decision- In a study it was found that while for typi- making. That is people can — each for them- cal students their spending on CDs went down selves — decide what is good for them, such with 25$ (from 126$ to 101$), their dead- as which music they like. Secondly they allow weight loss (as measured by how they value for efficient investments. That is people are their downloads) went down with 45$, for a most often right about which investments are total consumer surplus of 70$ (25 + 45). In good ones, such as what movie productions to other words: a maximum 25$ of sales was invest in. Thirdly, markets allow for efficient displaced, while the students gained 45$ in use. That is, resources and products are not music which they would never have bought being wasted, because they cost money.94 But at market-prices, and which are thus no lost for digital goods this last part does not make sales.98 To summarise: music is being shared sense, as copying can be done for free, so no that would never have been bought, and that resources can be wasted.95 neither replaces the buying of other CDs. This The issue of efficient use is also directly re- leads to a growth in welfare that is hard to crit- lated to what economists call deadweight loss. icise. Deadweight loss occurs when people who could have used a product if it were sold at 7.3 Globalisation While the Information Society is arriving, and 92 Spinello, “The future of intellectual property”, pp. 1-3; information is being enclosed, the world is Wirten, No Trespassing: Authorship, intellectual property rights, and the boundaries of globalization, p. 10; Boldrin also increasingly becoming globalized. States and Levine, Against intellectual monopoly, pp. 87-90; become ever more dependent on trade and for- Boyle, “Second Enclosure Movement and the Construc- tion of the Public Domain, The”, p. 39. 96 Rob and Waldfogel, “Piracy on the High C’s: Music 93 Lessig, Free culture: The nature and future of creativ- Downloading, Sales Displacement, and Social Welfare in ity, pp. 133-134; Boldrin and Levine, Against intellectual a Sample of College Students”, p. 37. monopoly, pp. 111-113. 97 The figure is an adaptation for virtual 94 Stallman, Why Software Should be Free, p. 4. goods of an image on Wikipedia http: 95 May, “The denial of history: reification, intellectual prop- //en.wikipedia.org/wiki/File: erty rights and the lessons of the past.”, pp. 34-37; Vaid- Deadweight-loss-price-ceiling.svg hyanathan, “Copyright Jungle: Reporters seem lost in 98 Rob and Waldfogel, “Piracy on the High C’s: Music the realm of copyright, where a riot of new restrictions Downloading, Sales Displacement, and Social Welfare in threaten creativity, research, and history”, p. 4; Stallman, a Sample of College Students”, p. 60; Oberholzer-Gee, Why Software Should be Free, p. 5. “The Effect of File Sharing on Record Sales”, pp. 38-39.

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Figure 1: The deadweight loss for virtual goods (bottom-right corner). eign capital. Corporations are outgrowing the disconnected. This not just in terms of access economies of many small and medium-sized to the internet, but also with regard to access nations, and the WTO and its treaties, are de- to the content and knowledge that it harbours. termining the agenda for international, and Currently the best connected are urban, well- national regulations to an ever greater degree, educated, young males.100 also regarding IP, with the TRIPs.99 Historically, the presence of, and strength Parallel to this, according to Manuel of, IP-law was related to whether a nation ex- Castells, what he calls the divide, has shifted ported more books than were imported. The over time. Historically it was the divide be- United States for example did not sign the tween north and south, between the mother- Berne Convention until 1986 (in response to lands and the colonies. Then in 19th century corporate interest-groups), and at least until it became the division between the haves and the 19th century, argued that as a developing have-nots. Now it is increasingly becoming nation and a former colony, it had a right to the distinction between the connected and the the English literature. But nowadays the for- mer colonies are deprived even of this right, 99 R. Piasecki and M. Wolnicki. “The evolution of devel- requiring them to become haves, before they opment economics and globalization”. In: International can become connected in terms of access to Journal of Social Economics 31 (2004), pp. 300–314, content. Developing nations do not want or p. 308; Manuel Castells. The Rise of the Network Soci- ety. Cambridge USA: Blackwell Publishers, Sept. 1996, need IP-laws, but via WTO treaties they have pp. 101-162; Wirten, No Trespassing: Authorship, intel- been forced upon them in exchange for access lectual property rights, and the boundaries of global- ization, p. 77; J. Osterhammel, N. P. Petersson, and D. 100 Piasecki and Wolnicki, “The evolution of development Geyer. Globalization: a short history. Princeton: Prince- economics and globalization”, pp. 303-305; Greco and ton University Press, 2005, pp. 108-122. Floridi, “The tragedy of the digital commons”, p. 75.

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to the world market.101 ried speech.104 Because of this, the internet What is the global welfare, or the inter- has the power to make publishers obsolete as est of the global society in this context? I the middle men between the author and the think certainly not millions of people dying public. This does not mean that the other roles of AIDS because the enforcement of patents that publishers have fulfilled, such as those of on AIDS-medicines in third world countries gate-keepers, editors, managers and marketers makes them too expensive for almost every- are now foregone, but that what were histori- one living there. Especially if one remem- cally their main functions of printing and dis- bers that 2/3rd of the funding for medical re- tribution, can be provided by the internet now. search is currently payed from tax-money, not In addition, with frictionless copying the from private investors, or from profits made deadweight loss for things such as music, on medicines.102 Thus if the third world — movies and books has become much larger where almost no one can attain the needed than it was in the time of the press. Copying marginal benefit of enclosed IP (in terms of still brings some marginal costs (about 0.10$ western currencies) — is included in ones dollars for a gigabyte; or one movie, 200 analysis, then the deadweight loss is literally songs, or 3,000 books, transferred across the immense. globe) but they are tiny, and still falling (and practically never billed to internet-users di- rectly). Thus while everyone, including those 7.4 Frictionless Copying living in third world countries, could have Another important development is that of fric- free access to all existing books and culture in tionless copying. That is; copying has become the world, copyrights are currently preventing free and perfect. Copies can be fully equiva- this. Therefore, if pareto optimality is an ar- lent to the original, and can be made without gument for intellectual property in the labour marginal costs. Never before has this been so desert theory, then similarly it should be pos- easy. The printing press for example, still re- sible to provide such an argument for all those quired substantial investments. Not just for its copies made in the deadweight loss zone. initial purchase, but also for type-setting, the This can be done as follows: If only copies paper used, and distribution of the copies.103 are made that would not have been purchases, then no author is worse off (nothing physi- The internet automates all this. It is to the cal is taken away or used up, and no sales press, what the press was to writing. To speak are lost). But the copying public is definitely with McLuhan: The internet carries the press, better off in this case. Thus we can argue as the press carried writing, and writing car- that the current situation is not pareto optimal, compared to what is possible with a differ- 101 Irr, “Literature As Proleptic Globalization, or a Prehis- ent copyright system, in which authors would tory of the New Intellectual Property”, pp. 796-797; get the same profits as they do now, but peo- Wirten, No Trespassing: Authorship, intellectual prop- erty rights, and the boundaries of globalization, p. 106; ple would be allowed to copy freely. Addi- May, “The denial of history: reification, intellectual prop- tionally, given the non-rivalousness of virtual erty rights and the lessons of the past.”, pp. 35-38, goods, creating deadweight losses is a case of 50-53; Barlow, “The economy of ideas: a framework wasting, and thus a violation of Lockes waste for patents and copyrights in the Digital Age (Every- thing you know about intellectual property is wrong)”, prohibition: Creation alone does not give a p. 7; George, Globalization and intellectual property, right to absolute property, similarly to how pp. XXIII-XXVII, 139-143. merely discovering land, or clearing it, is not 102 Benkler, The wealth of networks, pp. 344-353; Boldrin and Levine, Against intellectual monopoly, p. 257; Hesse, 104 Wirten, No Trespassing: Authorship, intellectual property “The rise of intellectual property, 700 B.C. - A.D. 2000: rights, and the boundaries of globalization, p. 67; Mar- an idea in the balance”, p. 45. shall McLuhan. Understanding media : the extensions of 103 Lessig, Code: Version 2.0, pp. 300-304. man. Cambridge USA: MIT Press, 1994, pp. 23-28.

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enough. The labour desert theory importantly enough, however, it is impossible to scan all includes the requirement that one uses what conversations for technical reasons (architec- one has appropriated, and that one does not ture). This because just as encryption can be waste it. used in DRM, people can also encrypt their conversations. There already are peer to peer 7.5 Decentralized (Re)production file-sharing networks that are encrypted, such Copying nowadays is not only frictionless and as Freenet (popular with dissidents in China), perfect, but the tools for copying are also and OneSwarm (much easier to use) by the widely available. Almost everyone has, or University of Washington. These networks do has access to, a computer or a smartphone not just hide their data-streams, but also which nowadays. Each of these are capable of mak- files are being shared, and importantly also ing digital copies as good (better) and as fast by whom. This makes it impossible to stop (faster) as (/than) expensive printing-presses file sharers without a total ban on encryption, in the past. Where printing used to be a and policing every (private) communication- centralized, commercial enterprise, copying is stream for unlicensed copyrighted content. now available to all. Any digitized piece of in- Current IP-laws, with their reach extended formation — once out there — becomes what over every form of communication, are thus has been called greased information, and can unenforceable without giving up or curtail- not be contained any more.105 ing many important civil rights, such as pri- For copyrights, its reach, and its limits, this vacy and free speech. It is likely that enforc- has profound consequences. Once instituted ing IP would even neccesitate giving up some as business to business regulation, IP was rel- aspects of globalisation, as the global inter- atively easy to patrol and enforce, because the net crosses borders and thus erodes jurisdic- number of publishers was limited.106 But as tions over IP, which would make enforcement copying became ubiquitous and affordable, it even harder otherwise.109 Thus assuming the became personal. The fact that IP crosses pri- maintenance of privacy, IP is unlikely to work vate physical property is what causes it to in- even for publishers, as being unenforceable, trude into the personal sphere. Every con- it is not likely to continue to provide a reli- versation through any digital medium (data- able source of payment.110 If IP persists it ei- stream) between any two or more people (also ther must be kept up by norms, as any effec- the exchange of an USB-stick), is now a po- tive law, or be limited again to the business- tential breach of copyrights.107 Even the flip- sphere. ping of the page of an e-book invokes copy- rights, as for every reading it is copied from 7.6 (Re)productive Communities disk or RAM to screen-memory. These de- Copying and remixing are becoming the velopments have extended the reach of copy- norm. As already noted, most people who 108 rights enormously. were raised with the Internet have no pressing If all digital conversations are to be eaves- moral intuitions against file-sharing. They, dropped upon, this will effectively eliminate and the rest of the public, are not just con- not just piracy, but also privacy. Luckily suming things for free here. There is a true 105 Halbert, Intellectual property in the information age: the revival of community-based amateur culture politics of expanding ownership rights, pp. 126-127. going on, and this time it is not happening in 106 Lessig, Code: Version 2.0, p. 24; Lessig, The future of back-rooms or on village-squares, but on the ideas: The fate of the commons in a connected world, pp. 8-13; Lessig, Free culture: The nature and future of 109 Lessig, Code: Version 2.0, pp. 286-291. creativity, p. 139. 110 Lessig, Free culture: The nature and future of creativity, 107 Tehranian, “Infringement Nation: Copyright Reform and p. 66; Barlow, “The economy of ideas: a framework for the Law/Norm Gap”, pp. 539-540. patents and copyrights in the Digital Age (Everything you 108 Ibid., pp. 543-547. know about intellectual property is wrong)”, pp. 4-8.

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global scale of the web. These creations are postal packages on-line, and assembling fur- created both ex nihilo, from a blank slate, and niture from construction-kits. But now with by originally re-combining, or re-mixing ex- the web, where people have all the neces- isting culture and themes. In the latter case sary means of production in the form of easy it often happens in defiance of copyrights and to use editing-software, communication, and out of sight because fair use exceptions are so publishing-tools, communities are sometimes vague that, for example TV stations refuse to already capable of doing much more.115 air films that are not cleared second by second It is no small movement. is used by and insured against IP lawsuits.111 22% of web-surfers, 67% of the million most Community culture on the web started visited websites use FOSS on their servers, out with Free/Open Source Software (FOSS). and 60% of all the content on the internet is This is software, built from the ground up created by amateurs.116 Wikipedia is the 7th (thus legal), that everyone has the freedom most visited website in the world, and con- to use, copy, and change as one pleases, as tains 2.8 million articles in English, and more long as one does not stop others from having than 8 million articles in 235 other languages, the same freedoms.112 It is in a so called pro- as opposed to the 0.7 million in the Encyclo- tected commons that, to prevent private appro- pedia Britannica 117. The web has not just priation, uses copyright licenses such as the brought frictionless copying on a global scale, GNU General Public, or Creative Commons it has also allowed community-culture to be- License (also called copy-left licenses).113 come globalized, and thereby be much more Well-known examples are Ubuntu , the productive.118 The social sphere has been en- Apache web-server, the Firefox browser, and larged by the web, similar to how free trade Open Office. Later, such licenses were ap- enlarged markets earlier on.119 plied to create the encyclopedia we all know, 115 Ghosh and Soete, “Information and intellectual property: and most of us use: Wikipedia. With the the global challenges”, pp. 924-933; Lessig, The future rise of Youtube, Jamendo, Stack Overflow, of ideas: The fate of the commons in a connected world, and other Web2.0 (modern community-based) p. 52; Benkler, The wealth of networks, p. 9. websites it was applied to video, music and 116 Benkler, The wealth of networks, p. 64; Boldrin and other media as well, and has become main- Levine, Against intellectual monopoly, p. 21; Matt Asay. Linux jumps to 13.4 percent of the stalling server stream. market | The Open Road - CNET News. 2008. URL: Some (especially web-based) companies http : / / news . cnet . com / 8301 - 1350 are turning to user-based innovation as well, 5 _ 3 - 10027925 - 16 . html, p. 1; Netcraft. asking them what new features avid users May 2009 Web Server Survey. 2009. URL: http : / / news . netcraft . com / archives / 2009 / 0 would want, and how exactly they envisage 5/27/may_2009_web_server_survey.html, them. Even the NASA has ran a successful p. 1. croud-sourcing project, where they asked peo- 117 This paper was written on Ubuntu Linux, edited with ple to identify craters on Mars.114 To speak the editor VIM, type-set with the FOSS with Toffler again: consumers have become LaTeX type-setting package, the footnotes and list of literature were managed with the help of BibTex and the pro-sumers, taking over part of production, by Firefox Zotero-plugin, it includes a figure that is a de- for example: tele-banking, tracking their own rived work from a figure on Wikipedia, and was drafted on LogiLogi at http://en.logilogi.org/ 111 Lessig, Code: Version 2.0, p. 189; Lessig, Free culture: History/Ethics/Intellectual_Property/ The nature and future of creativity, p. 98. Confrontation=Wybo_Wiersma_64 112 Richard Stallman. The Free Software Definition - GNU 118 Benkler, The wealth of networks, pp. 3-16, 54, 83-126. Project - Free Software Foundation (FSF). 1996. URL: 119 Nicholas Gruen. Adam Smith 2.0: Emergent Public http://www.gnu.org/philosophy/free- s Goods, Intellectual Property and the Rhetoric of Remix. w.html, p. 1. 2009. URL: http://clubtroppo.com.au/2009/ 113 Ghosh and Soete, “Information and intellectual property: 05/28/adam-smith-20-emergent-public- the global challenges”, pp. 929-930. goods-\intellectual-property-and-the- 114 Benkler, The wealth of networks, pp. 69-70. \rhetoric-of-remix/, pp. 2-11.

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8 Findings uation in which copyright-laws, as they cur- rently exist, are enforced globally. We will now present our findings, and con- In addition, the wide distribution of copy- clude that IP is no longer justified. There ing devices such as computers, e-book readers are good alternatives for it, even if they are and mp3-players, has enormously expanded currently being overlooked because of reifica- the range of situations to which IP applies. tion. A minor law that regulated the business of publishers, now applies to almost anything 8.1 No Longer Justified related to information, and importantly also As shown in the previous chapter copyright- to the private sphere. This is a case of his- laws as they are now have become harder to, toric changes, slowly but drastically, changing or even impossible to, justify. On the other the law, even if nothing had changed in the hand, completely abolishing any form of di- wording of the law itself.120 Currently DRM, rect profit from creation, can neither be justi- ’trusted computing’, and various legal excep- fied. There are, however, reasonable alterna- tions are giving IP-organisations the right to tives for IP which still allow for direct profit, search personal computers and to ’tap’ private and which are much less problematic, as will internet-communications, bringing us to the be explained next, so the reader is asked to brink of abolishing privacy and other impor- momentarily suspend doubts about practical tant civil rights.121 While at the same time it problems. So far we have argued, first of all, is becoming ever harder and harder to enforce that physical property and intellectual prop- copyrights, and eventually it will become im- erty are really different: IP is non-exclusive, possible, as those who share files turn to en- and especially non-rivalous, contrary to phys- cryption. Thus with the current approach to ical property, making copying and stealing re- IP, in the end everyone — even those who cur- ally different from each other. Thus having rently benefit from copyright-enforcement — different views about physical property (being will lose out. for it) and IP (criticising it) is both possible Additionally, the public is not just consum- and sensible. ing culture, but also producing and remix- Secondly, the increasing ease at which ing it thanks to the internet. With the en- copying can be performed with modern de- largement of the social sphere that the web vices, compared to the times of the press, has has brought, and the cheap, or free, editing- enormously increased the deadweight loss: tools that have become available, people are resulting in empirically proven loss, both again taking control of their own culture. If losses in usage, and a lost sales. This loss set free to use and remix all existing culture, especially is huge if we take into account story-lines, and themes, all of these art-forms that frictionless copying is not only possi- can come out of the shadows of illegal un- ble between friends living in the same street, certainty, and bloom. Because, while pro- but also globally, crossing the colonial north- fessionally produced culture has its place and south divide, and bridging the gap between brings us many benefits, the public should, haves and have-nots. Instead of perpetuating and now can, have as much freedom as possi- these divides into the Information Age, they ble to shape and transform their own culture. could, at least partially, be overcome thanks This because sounds, images, film and digital to the non-rivalousness of virtual goods. At media have become almost as central to free minimum those situations in which a down- expression as writing and the alphabet.122 loaded song would not have been bought any- way, and does not replace the sale of another 120 Lessig, Code: Version 2.0, pp. 189, 214. 121 Ibid., p. 140. CD, are hard to criticise. Such instances of 122 Irr, “Literature As Proleptic Globalization, or a Prehistory sharing are pareto-optimal, compared to a sit- of the New Intellectual Property”, p. 793.

21 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma

8.2 Two Markets an organisation (whether the state or other- There are many alternatives to current IP- wise) collects fixed fees from the public (such laws that do not bring with them all, or as $10 a month), which are then distributed any, of the problems that have now come to among creators and possibly inventors, based be because of the historic and technological on the popularity of their work. In exchange changes since their introduction. Things that for this, copying and usage are free. Important have been proposed are: shortening copy- here is that the dividends to creators should right terms to 14 years again, requiring re- be determined by the decisions of many inde- newals every few years, and even abolishing pendent people, such as in a free market, and copyright (enforcement) in the private and/or not by the whims of a small clique as is the non-commercial spheres all-together.123 Ad- case for most existing compulsory licensing ditionally, licenses have been used to and levy-systems. Thus one can have decen- stake out commons under the current copy- tralized decisions and efficient investments in right regime. Nevertheless, all of these solu- both markets, but they will differ in what con- tions have one or both of the following two stitutes efficient use. In the first market it con- major drawbacks: they either do not provide stitutes limited use, which makes sense there a real solution to the artificial scarcity prob- to account for the natural marginal costs of lem, and/or they do not provide any form of physical goods. But in the second it means as direct compensation for virtual creations in- much use as possible, as copying and sharing tended for the public: for home users. are free, and thus should not be barred. However William W. Fisher, and others, For determining what popularity entails have proposed an alternative that does not there are many options such as page- or have these limitations.124 It is a levy-based download-ranks, counting the number of system, or what we would rather call: a sys- products ideas are used in, or the number of tem of two markets. For the second mar- patients taking medicines based on medical ket — the one for virtual goods and ideas — patents, surveys of use (such as the Nelson families for TV), or about perceived value, 123 Lessig, The future of ideas: The fate of the commons in and even vouchers representing a share of a connected world, pp. 252-253; Lessig, Code: Version 2.0, pp. 221, 277; Spinello, “The future of intellectual ones fees. Many alternatives and combina- property”, p. 6; Barlow, “The economy of ideas: a frame- tions are possible, but one advantage of sur- work for patents and copyrights in the Digital Age (Ev- veys and vouchers is that they are harder to erything you know about intellectual property is wrong)”, game and can provide privacy to those who pp. 15, 20; Stallman, Why Software Should be Free, p. 8; value it. Naturally it will take some time un- Thierer, Crews, and McCullagh, Copy Fights: the future of intellectual property in the information age, p. XXII; til the second market has been perfected, just J. Litman. “Revising copyright law for the information as it took centuries for the first market to be- age”. In: Oregon Law Review 75 (1996), p. 19, pp. 125- come what it is today. However some of the 145; Boldrin and Levine, Against intellectual monopoly, problems are less big than they seem. For ex- pp. 135-142. ample derived works can simply be compen- 124 W. W. Fisher. Promises to keep: technology, law, and the future of entertainment. Palo Alto: Stanford Uni- sated to their last creator, as the transparency versity Press, 2004, pp. 199-258; Boldrin and Levine, of the internet can easily lead people to the Against intellectual monopoly, pp. 279-296; D. Baker. original source, and when it is liked less, then “The artistic freedom voucher: Internet age alternative apparently there is a greater demand for re- to copyrights”. In: CEPR paper, at http://www. cepr. net/publications/AFV. htm, accessed 1 (2004), pp. 1- combinations of existing works than for orig- 8; Electronic Frontier Foundation. A Better Way For- inal ones, and thus the recombination is right- ward: Voluntary Collective Licensing of Music File Shar- fully rewarded. The technology that created ing. 2008. URL: http : / / www . eff . org / ’the problem’ also can provide many of the wp / better - way - forward - voluntary - solutions. \collective - licensing - music - file - \sharing, p. 1. In cases of fraud the legal system can of

22 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma course still step in, just as it regularly does in harsh terminology of theft is justified. File- the first market. For example the occasional sharing can just as easily can be called civil robbery, or the collapse of a few market bub- disobedience, or even doing the right thing.126 bles, are no reasons either to give up on the Here one can see the power of discourse first free market. In addition, it is to be ex- at play: by using harsh language, hiding im- pected that in the Information Society, with plicit assumptions, and by conveniently ig- information and research becoming an ever noring the historicity of the first market, the more important part of production, the cre- debate is framed to serve the interests of the ation of a second market is justified, and in- publishers. I say here publishers, not authors, creasingly worth the effort. Especially as with as another strategy regularly applied by those the advent of fablabs and 3D printers which defending copyrights is lumping record com- allow one to ’print’ physical goods in plas- panies/publishers and artists/authors into one tic (just plastic for now, but nano-technology group, and then telling the tale of the starv- promises much more) communities and indi- ing artist as the inevitable end-result of the viduals will soon not only be able to share increased violation of copyrights.127 Seeing and create software, but also to invent and (re- them as a combined group is not only histori- )design consumer-products. Thus, if we want cally incorrect, but also results in a more con- to ensure freedom and fair profit in the up- vincing story than that of the record-company coming Information Society, then it is impor- manager that has to get creative himself, or tant to have not just one, but two free markets. find a different job, because the distribution of cultural products can now be done on-line, 8.3 Minds Being Enclosed directly from the artist to public (especially in Given the possible alternatives, copyright- a levy- or two-market system). laws that restrict copying and invade privacy Similarly, in the labour desert justification, are no longer justified. They are becom- talk of natural rights is a reification, and a ing counter-productive. People nevertheless mystification of the historicity of ethics, and still believe in their need. They assume that their dependence on the kind of world that the one market they currently know is some- historical and technological changes have cre- 128 how naturally given, instead of a historic phe- ated, and made possible. The international nomenon that is well-adapted to a reality of history of copyrights shows a nice example of physical goods, but is hopelessly unsuitable this, and of the role that power plays in such for virtual ones. It is thus that — under the affairs: France, in the 19th century, mainly stimulation of creativity justification — the started respecting the copyrights of foreign need for artificial scarcity (so a profit can be authors to invite others to do the same. Hardly extracted from the first market), is being rei- any living foreign author was being read in fied (thing-ified, assumed to be given).125 In France at that time. The US used the reason- turn this enables publishers to call copying ing of a developing nation in order not to have stealing, instead of sharing. But sharing is to respect the copyrights of British authors. only stealing (and then only in the sense of But only until their own IP lobby and IP in- free-riding) when both the first market is as- terests had grown. Then — not until 1986 — sumed, and the sharing happens outside of the they signed the Berne Convention, and started deadweight loss zone: Quite some assump- pushing for international copyrights through tions that need to be met before the use of the 126 George, “Information technology, globalization and 125 Bettig, “Critical Perspectives on the History and Philos- ethics”, pp. 34-35. ophy of Copyright”, p. 146; Lessig, Code: Version 2.0, 127 Brock Read. “Piracy and Copyright: an Ethics Lesson”. p. 183; May, “The denial of history: reification, intellec- In: Chronicle of Higher Education (2006), p. 46, pp. 1-5. tual property rights and the lessons of the past.”, pp. 35, 128 Thierer, Crews, and McCullagh, Copy Fights: the future 39-45. of intellectual property in the information age, p. XIV.

23 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma the WTO TRIPs treaty. Thereby not allowing in the US.132 The last victim was Jammie the developing nations of our times, to do as Thomas-Rasset, who, on the 18th of June they did themselves.129 2009, was fined with 1.9 million dollars for 133 For now, the market as a field of power the downloading of just 24 songs. While seems to be controlled by the publishers. this procedure surely is slightly more civilized They have a strong position in the law as and profitable than the burning of witches at well. This happened both for historic rea- the stake, it is not likely to be any more ef- sons and because of the laws slow pace of fective at putting an end to the publishers’ change. Laws which have been increasingly misfortunes, than the latter was for preventing interpreted in their favour, because they have medieval natural disasters. The publishers are been able to enlist the best lawyers. The up against the magical of the inter- law is currently tailored to their vision of net, progress, and a ’paradise of plenty’, not an information society dominated by digital dark magic: so far convicted 4,280, and more locks and paywalls.130 In practice, neverthe- than a hundred million to go. One wonders less, they are having a hard time in the field of what they have in mind. architecture, where the possibility of encryp- As argued, from a global, historic per- tion makes both camps more powerful, but spective, current IP-laws are no longer jus- with the slight advantage for the file-sharers tified. IP first of all is fundamentally dif- that in order to release a piece of information ferent from physical property and it even onto the web its DRM has to be cracked only crosses it, and invades it. While IP made once, while every encrypted private commu- sense as business-to-business regulation in the nication in which it is shared is a new chal- past, when presses were expensive and large, lenge for those holding on to IP. In the sphere and were owned and operated by a few eas- of norms, those opposing IP laws seem to be ily identifyable companies, it no longer does. winning out as well. Both at the theoretical With the rise of the internet and the ubiqui- level — as this paper argues — but also in tous availability of computers, copying has practice, as can be confirmed by looking at become something everyone can do in the pri- the hundreds of millions of (otherwise) per- vate sphere of their home. Thus copying can fectly decent citizens who are also file shar- no longer be policed without abolishing pri- ers.131 Thus the balance is undecided, though vacy. Add to this the ever growing global the influence of power in the first two (or even deadweight loss caused by the tragedy of the three) fields is a worrying one. Lost Paradise, the promise of the crossing of global divides in a free Information Soci- ety, and an undisturbed rebirth of community- 9 Conclusion produced culture, and it is clear that current copyright laws have become an anachronism, As copyright-enforcement is breaking down, and need to be replaced. the witch-hunt continues. A few thousand un- It is to be hoped that we will soon enter suspecting file-sharing fathers, mothers and a free Information Society driven by not just children have already been financially ruined one, but two free markets. So that, when

129 Wirten, No Trespassing: Authorship, intellectual property 132 Tommy O’Reardon. Copyfutures: The Problem(s) with rights, and the boundaries of globalization, pp. 56, 137- Voluntary Collective Licensing. 2004. URL: http : 138, 146-147; Hesse, “The rise of intellectual property, //lsolum.typepad.com/copyfutures/200 700 B.C. - A.D. 2000: an idea in the balance”, pp. 40-41. 4/09/the_problems_wi.html, p. 1. 130 Barlow, “The economy of ideas: a framework for patents 133 Friend Elianne. Woman illegally downloads 24 songs, and copyrights in the Digital Age (Everything you know fined to tune of $1.9 million. 2009. URL: http : about intellectual property is wrong)”, p. 8. / / edition . cnn . com / 2009 / CRIME / 06 / 1 131 Tehranian, “Infringement Nation: Copyright Reform and 8/minnesota.music.download.fine/inde the Law/Norm Gap”, p. 543. x.html, p. 1.

24 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma the current copyright-system crumbles, and ened out for practical use, and a stable grip. the record-companies, movie-houses and pub- Ethics, the living thought scrutinizing good lishers have given up their roles as distributors and bad, justice and injustice, is also facing and manufactorers of physical data-carriers the rapid emergence of numerous ambigui- (such as CDs and blue-ray disks), they will ties. For now, they are mostly related to cases be able, and willing, to continue with their which involve information-technology, such new core-businesses as music-recording stu- as the issue under discussion. But sooner or dios, movie-studios, -producers, and editors, later they will affect questions related to the so they, and the artists, actors and authors they risks posed by nano-technology, the impact of employ — or that hire them instead —, can genetic engineering on social inequality, and make a living again, and receive the fair prof- what newborn humans should be like. As its they deserve. progress and science make our world more The Isle of Man is already planning to in- malleable, and a greater diversity of alter- troduce a levy-based system, and as a recent natives become practically realizable, human article in Wired suggests, the music industry decisions will eventually be about the shape is turning their ears to the opportunities that of reality itself. If that happens, then ethical a levy-system — what we here call a two- considerations will be the only guideline we markets system — can offer them.134 It re- have left. mains to be seen to what extent global inter- Hence, questions about changes in justifia- ests will really be represented by the system bility brought about by historical and techno- they might come up with. For this it is im- logical developments are of great relevance; portant that everyones interests are heard and for historians, but also for the future of hu- taken into account, and that there will be as manity as such. much freedom as possible for the public to recombine popular works; so everyone can References speak freely in the language of media-culture. Allen, Katie. Home copying - burnt into Previously nations were at least somewhat teenage psyche. 2008. URL: http : inclined to support society and cultural com- //www.guardian.co.uk/music/ mons. Even if this happened for reasons that 2008/apr/07/news.katieallen. might not always be noble, such as competi- Asay, Matt. Linux jumps to 13.4 percent of the tion with other nations for cultural prestige, it stalling server market | The Open Road - still had positive effects. While now, with the CNET News. 2008. URL: http://news. weakening of states, this source of support is cnet.com/8301-13505_3-100279 dwindling, and things look bleak for the inter- 25-16.html. ests of our increasingly globalized civil soci- Baker, D. “The artistic freedom voucher: ety. Internet age alternative to copyrights”. We live in times that ask for vigilance: As In: CEPR paper, at http://www. cepr. technology changes our world, our language, net/publications/AFV. htm, accessed 1 and our reality, latent ambiguities in laws are (2004). emerging, and changing the laws reach and Bannerman, S. “Copyright and the Global the way in which they apply. This happens Good? An Examination of ’The Pub- not just to laws — the fossiles of ethics, hard- lic Interest’ in International Copyright 134 Andrew Orlowski. Isle of Man wants legal P2P blanket. Regimes”. In: Intellectual Property Rights 2009. URL: http://www.theregister.co.uk/ and Communications in Asia: Conflicting 2009/01/19/isle_of_man_music_tax/, p. 1; Traditions (2006), p. 58. Frank Rose. Music Industry Proposes a Piracy Surcharge Barlow, John Perry. A Declaration of the on ISPs. 2009. URL: http://www.wired.com/ent ertainment/music/news/2008/03/music_l Independence of Cyberspace. 1996. URL: evy, p. 1.

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