When speaking about transhumanism, one might think either about genetically altered human beings, or about ones with cybernetic enhancements and augmentations. Those second ones are popularly known as cyborgs. Most of us, optimists, would be likely to view neuroprosthetics and neural implants as a commodity available for every human being on the planet… to be honest, it’s more like a cyberpunk noir.
First let's start with the definition of a cyborg. Essentially, a cybernetic organism1, according to the old-fashion recognition of the term, is a merger between a living organism and a machine. The machine is both essential for that organisms existence, and controlled by its brain due to a feedback system. Newer acknowledgments find another type of a cyborg. As the previous one was mostly “hardwired”, with no way whatsoever to disconnect the cybernetic/bionic components, without severely damaging, disabling or endangering the life of the organism. The connectable cyborg, containing only the interface sockets with interchangeable implants is a modern approach to the topic. The next step would be leaving behind the direct neural connection between the organism and his mechanical components, and connecting them either by brainwaves or movements of the body, still rendering them crucial for the cyborgs survival or abilities… then a person with a smartphone, living in a information based society, deprived of this device, would be on some sense crippled.
Cutting to the chase, the first two cyborg types are the most probable. The first one is mostly amputees and patients undergoing surgical treatments, due to major health risk. The second one would concern mostly commercial alterations2 ( brain computer interfaces and implants for any purpose possible3) and military applications (exoskeleton power armours, simultaneous control of drones and bots, combat vehicle control, mission purpose implants), which could be harmlessly removed out of a soldier when relieving4 him form service.
As many of you may realize, neuroprosthetic and implants are a very serious industry, worth billions of dollars and growing larger with the need for implants increasing. One can’t blame them, people are fragile and vulnerable to damage and trauma, they’ll pay with everything they’ve got to save themselves or their children, and the media is a good public image for augmentations and bionics5. But where there is business, there’s money involved.
Every new technical solution, before it reaches the market and becomes a product must undergo a series of steps. First, it has to be invented in the R&D department. An invention, if it meets the proper requirements6, an application is filed to the proper patent office, requesting a patent for it. A patent is both a personal and a property right of the owner to his invention7, including the right to use it, to sell it, to gain profit from it or to license it to a manufacturer. It also gives the patents owner the right to sue anyone who infringes his patents, by creating products based on this invention without his permission. The next step is to “adapt” the patented invention for the needs of the market. An inventive but a unreliable product is unlikely to gain much public attention or bring any considerable profit8. For an example, a novel type of a servomotor for an neuroprosthetic hand, allowing to better move its digits with lower energy usage would certainly pass the prior arts search with a proper description and claims, while it is not as weather or shock resistant as the “standard issue” servomotor, or just being too bulky to fit in a market ready product. After adapting the invention, there is the final step, called the diffusion of innovation. It takes place when the information about the availability of the new product spreads across the market. This has certain outcomes, like the creative imitation, creating other applications for this solution, improvement of the product or even substitution. But this is not our concern, although this field of industrial property law and technology management has a lot to do with technological progress.
What does an implant or a prosthetic body part consist of. It consists of two main components. The hardware and software. That’s correct, for there must be a signal recognition, translation, sending and receiving system. As in Europe there are computer implemented inventions9, the US law has software patents. The outcomes of that are as follows.
The issue of property. The artificial limb, that you have paid for, and has just been “installed” to your body, and connected to your nervous system, still belong to the company. Yes, it is still their property, and they own every bit of its design, software and so on. You’re just a user. You cannot resell it to any other person with a similar condition to yours. Nor can lend it, or alter its software, circuitry or purpose. If the EULA that you had to accept, because in this case there would be one, says that they can remotely turn off your implant/bionic if you’re using it for illegal purpose, claiming the user fully responsible for the eventual outcomes, they would have the right to do that.
If a company patents and introduces to the market an implant, enabling the user to gain telepathic abilities with other implant users, as well as remote control of compatible objects, it would also gain the monopoly right to telepathy10.
Of course, this is not the transhumanist way, transhumanists believe that every such implant should be available for everyone, with no such restrictions of whatsoever. Your body, your right, your choice. But companies aren’t driven by altruistic ideologies, they’re fuelled by profit. It happened with the software, it’s happening to the automotive industry. The good news is that a court or a tribunal can find such statements illegal and life threatening, which should be removed at once and their practice seized immediately. The bad news is that it can go the exact opposite way, and state or corporate lawyers would prove an urgent need for such solutions. Some user licenses imply, that any artwork or an invention created using the licensed software is free to use by the software owner. Sounds creepy, but most social networks’ terms of service have such clause, allowing them to sell and manage your intellectual property, without your permission. Some of the DRM technologies alter the users computer, mostly in a non apparent way, sometimes containing spyware. User monitoring is done quite often, and it is not unlikely that some crucial info about users habits or suppliers can be transferred to certain entities, in a same way as industrial espionage is preformed. The issue of unifying interfaces and compatibility relies on agreements between patent owners, in creating patent pools11.
The other possibility comes with the question – since when do you stop being human? Or how much implants and bionic replacements does it take to turn a person into ones property?12 Can a company or a corporation loan you a artificial heart, and after you cease to pay the proper fee, they can take their own property back, leaving you to die? As harsh as it seems, this is the way that most lawyers would advise companies to follow. We also can create an analogue procedure with the commercial laws’ “controlling interest”. If more than fifty percent of your body parts are replaced with certain company’s products, then it would make you only an automaton, not a person anymore13.
One must realize that business lacks compassion, seeking mostly profit, treating everything as a loss or gain, and technology is mostly an asset to be realized.
There is also an alternative. Recently there has been created the Open Prosthetics Project, with open source circuitry like the Open Myoelectric Signal Processor14. These open inventions and solutions provide the alternative to the corporate patent pending products on a “vulture license”15. As a part of the Shared Design Alliance16, its purpose is to promote and develop a community based on shared designs. This may also come in handy when looking on the 3D printing- mania, that is spreading around the globe. Yes, this also has to with cyborgs and prosthetics17. As today’s 3D printers remind us the “nanoassembling units” of past sci-fi works, the “implants for everyone” may recall “the street finds its own uses for things”18. Additive manufacturing and 3D printing is starting to pose a great threat to large companies19, based on the ld principles of industrial property, and the modern, malformed patent law and intellectual property, which today are the main tools of economic and legal abuse. This is far closer to the transhumanist dream, although creating medicine out of 3D printers would meet a strong resistance from the pharmaceutical corporations. The same with nano or microbots, which could be used as a leukocyte prosthetics ( in case of patients suffering from HIV or Leukemia ), instead of buying them in capsules or other packets, one could make his own, according to the openly available design prescription or design.
Summing up, humanity at its current state can’t make the large leap, from here to the transhuman age of abundance and postscarcity. Instead we have to cope with corporate end industrial property law. Although we have some alternatives in the form of open designs, open source software or the GNU license, most consumers would go to the branded prosthetic manufacturer and pay lots of money for their prosthetics and implants, only to be treated merely as a user in the end, than to the local “print’em all” chop shop.
1 The „Living tissue over a metal endoskeleton” like the T-800 from „The Terminator” is in reality an android.
3 Like in William Gibson's’ “Burning Chrome” short story.
4 Leaving some of those devices inside of him would threaten the national security.
5 Quite debatable, for the most known cyborgs in the US are Darth Vader and the Borg, in the UK there are the Daleks and Cybermen… but with every year the amount of positive protagonists with bionic replacements or augments increases. And let’s be honest, most Sci-Fi fans, or people who are into the neuroprosthetics, never read sci fi books, not to mention hard sci fi or cyberpunk genres.
6 Novelty, inventiveness (non-obviousness) and industrial application .
7 In the case of most companies, any invention created by its employee while carrying out his duty belongs to the company, unless a specific agreement says otherwise.
9 Where the device is patented, but the software operating it receives only copyright protection.
10 As it isn’t scientifically proven to occur in nature
11 A patent pool is a group of patents form several companies which when combined together give us a complex product, like the Bluetooth system or a Blueray player. These are essential in our current technological development, as they provide us with technological compatibility of devices coming from different producers.
12 “ Do you exist, Mr. Jones?” short story by Stanislaw Lem
19 Even arms producers https://www.youtube.com/watch?v=JK55GSbSWQ0
Kamil Muzyka is a lawyer specializing in industrial property law and technology management, with a focus on issues of artificial intelligence, asteroid mining and international space law.
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