Continuing our effort to flesh out the parameters of technoprogressive policy ideas by building our “Technoprogressive Policy Wiki”, we turn now to the problems created by the push to patent everything, including human genes, and shut down all fair use and copying of music, texts and film. IEET intern Ed Miller has been engaged with open source and intellectual property issues for some time, and has taken a crack at a general policy statement on this issue. We welcome feedback. - J. Hughes
Intellectual Property Overreach
Property rights are the cornerstone of modern liberal democracies, and since the Enlightenment, democracies have funded their defense through taxation for the purpose of promoting innovation. However, the concept of “intellectual property” is an artifact of a 1980’s campaign to lump distinct legal regimes (copyright, patent, and trademark) into a purposely misleading concept that is fundamentally dissimilar to physical property rights. A patent, for example, is a purely negative right, it confers the power to exclude others, creating neither the obligation, nor the guaranteed ability for the holder to practice the invention in question or bring it to market.
Paradoxically, situations arise where mutually blocking patent claims can prevent anyone from utilizing an innovation. “Submarine” companies, also known as “patent trolls” exist, whose sole business model is to sue productive businesses. For most of history, economists and policy makers honestly acknowledged that the granting of a monopoly right for innovation was a temporary and necessary evil, a special case exception that must meet a stringent test, not a routine case of “property.”
During the 1980’s a few judicial decisions, with no public or policy deliberation whatsoever, opened the floodgates to an exponential expansion in the filing of patents covering new subject matter and technologies that were never anticipated in the industrial age during which the patent system evolved. Indeed, there is a growing consensus that the unchecked proliferation of patents is perversely out of touch with, and downright inimical to, the collaborative, cumulative, and interdependent essence of innovation in the 21st century’s networked knowledge economy.
Thanks to lax oversight, patents are now being filed around the world for nearly everything under the sun, no matter how obvious, undeserved, or harmful. Thus, the original purpose of patenting, innovation, is being perverted. We have everything from “business method” patents to software patents to patents upon the human genome itself. Such patents cannot be considered “intellectual property” in any reasonable sense of the term, and are merely government-sponsored entitlements. Yet, these entitlements differ categorically from other sorts of entitlements because they have the potential to disrupt the future technological progress of civilization itself. Considering the accelerating pace of change, this issue is more urgent than ever.
Biology and genetics are increasingly being removed from their rightful place in the commons, and placed into private ownership regardless of the best interests of the public. Instead of free and open innovation, we are left with stagnant monopolies. Instead of working towards renewable resources, the incentive structures promote artificial scarcities which hold us back from ever reaching an otherwise attainable post-scarcity future.
To reverse these trends, a number of public policy changes must be implemented.
Patent Reform
Patent reform must be implemented which prevents egregious patents from ever being granted. The recent Bilsky ruling should help limit some of the egregious “business method” patents, but the percentage of the human genome which has been stolen from the commons grows every day. The same is true of genomes of other species. Software patents cannot be allowed either. Software must be considered like any other mathematical algorithm, and not be patentable, but merely limited to standard copyright protections.
Copyright Reform
It is ridiculous that people must go out of their way to place things in the commons. Instead of copyrights being granted automatically, works should default to the commons unless a copyright is explicitly specified. So called “orphan works,” where it is impossible to identify the owner, should be released to the public domain. A registration fee to maintain copyrights could be implemented, growing increasingly expensive the closer the terms came to expiration. Authors (to the extent that they rather than middlemen) capture most of the value of a work in the first few years of publication, and thus the extra time in which copyright applies adds little to no incentive for production, and merely stifles creativity and innovation.
Intellectual Property Taxes
Intellectual property which isn’t egregious should become more similar to other types of property. Patent holders should pay a user fee, in the form of a tax, as they would for any other property, for the privilege of the government-sponsored monopoly on an idea. This would have the side benefit of incentivizing the development of the commons.
Prevention of Artificial Scarcities
Outright bans on terminator seeds would be a reasonable measure. Other policies which discourage artificial scarcities must be considered. Networked, global “civil disobedience”, subversion of, and blatant disregard for (“piracy”) of unjust restriction technologies is a viable tactic, as the recent political success of the Pirate Party demonstrates.
Support of the Technological Commons
Acquiring information is not a zero-sum game. If I share an idea with you, I am not deprived of the idea. Now, with the Internet, massive amounts of information can be shared perfectly, instantaneously, and collaboratively. Why, then, do we continue to spend all our time propping up outmoded systems of production? The benefits of decentralized production methods like Open Source are clear. We should foster the technological commons from all angles: the government, civil society, and the private sector. Not just for software. We must support Open Manufacturing, DIY Biotechnology, Open Source Medicine, DIY Electronics. These are the areas which offer the most promise for a technoprogressive future.
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