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Enclosures of the Mind: Intellectual Property from a Global Perspective

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Enclosures of the Mind: Intellectual Property from a Global Perspective Enclosures of the Mind: Intellectual Property 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 copyrights 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 Intellectual Property 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 2 Enclosures of the Mind: IP from a Global Perspective Wybo Wiersma 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.
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