Arguments for the abolition of private intellectual property rights
Andreas Von Gunten
4. A Just Society with Intellectual Commons
There are two main opposing conceptions of how a just society ought to look. One strand stresses the aspect of individual freedom whereas the other focuses on equal distribution of natural resources. There have been attempts to reconcile these views, for example by John Rawls (1999). I will show in this last chapter that the concept of intellectual commons can be endorsed from both sides.
As we have seen in the previous chapters, there are good reasons to claim that neither natural rights nor personality rights arguments provide enough justification for intellectual property rights of the sort implemented today through a repressive global legal framework. So there is only the utilitarian argument left — which says that granting intellectual property rights serves the just society as such, as outlined in Chapter One. I assert that for all types of just society it is desirable that human communication, cultural productivity and scientific progress serve the development of society in a sustainable way. Sustainability here means that the just society can be developed in line with its values while maintaining its resources for the following generations. There is disagreement of course about values, and about how resources can be maintained in such a way. There is also a lot of disagreement about whether a political structure is needed, how such a structure should be constructed, and how much interference with individual freedom would be acceptable to create wealth equality amongst its members. And values are of course not static but are always in slight modification. My aim is not to try to solve these fundamental problems but to show that a society where intellectual property is common property has a better chance to prosper, independently of the question whether its basic values are more libertarian or more egalitarian. The premise is that the more cultural artefacts and the more scientific ideas are developed and produced, and the more freely human communication can happen, the more sustainable a society grows. This is the classical liberal argument for freedom of speech.1 Supporters of intellectual property rights argue that because these temporary monopoly rights are granted, more cultural artefacts are produced (Moore 2011). There would be less medical research without patents and fewer new books, songs or movies without copyright, because exclusive income rights are a necessary incentive for individuals to be creative. This is an empirical argument and there are many observations which show us that there is not much evidence for its truth.
The missing evidence for the incentive argument
First of all, there exists a huge body of cultural and scientific artefacts which have not been created to gain monetary incentives but just because of personal intrinsic motivation. There are millions of musicians, writers, painters, photographers out there, who create wonderful pieces of artwork every day. But they are not doing it because intellectual property rights are granting them exclusive income rights on their works. Personal interest, fun, social integration and gratification, and many other reasons are the drivers for their creativity. In fact, there are many signs from the findings of psychology and neuroscience that to be creative is a hard-wired part of the human condition. A look back in history shows us that a huge body of knowledge and cultural artefacts was produced long before intellectual property rights were established globally and that the intellectual property regime does not seem to be the driver for innovation, as its proponents from the media, pharmaceutical and software industries often claim.2 Most of the radical works of the Enlightenment were published – except in England – without copyright protection. A comparative economic study of the development of the market for printed books in England (with copyright protection) compared with Germany (without copyright protection) has revealed that all indicators which are relevant to the justification of copyright show a negative impact. The average price of books was lower, there were more books produced and more people read books in Germany compared to England between 1710 and 1850 (Höffner 2010:386-388). An analysis of exhibition data from the period of the industrial revolution showed that patent rights were not the driving factor of the scientific and technical development. Instead:
“Historical evidence suggests that in countries with patent laws, the majority of innovations occur outside of the patent system. Countries without patent laws have produced as many innovations as countries with patent laws during some time periods, and their innovations have been of comparable quality. Even in countries with relatively modern patent laws, such as the mid-nineteenth-century United States, most inventors avoided patents and relied on alternative mechanisms when these were feasible.” (Moser 2013:40)
Another more recent example is open source software and the open knowledge movement. Thousands of programmers have created the world’s most-used software stack for servers in the Internet without the exploitation of monopoly rights. The Linux operating system, the Apache web server and many other programs have been created not because of intellectual property rights, but because some human beings found it important to do so. Hundreds of thousands of voluntary editors have created Wikipedia, the most comprehensive encyclopedic work in human history with more than 30 million articles in 207 languages3. There are millions of photographs and illustrations which are published under the creative-commons licences, which allow the copying and reuse of the material without asking for permission. Most scientific writings are not copyright protected because the researchers asked for it or wanted to make a profit, but because the publishers want to exploit public resources. More and more researchers are beginning to publish their work through open access publications which often use the creative-commons licenses as their legal framework. Public research funding organisations have also begun to demand open access publications and no one, not even the publishing houses, would assert that there is a risk that scientists would stop researching if their works were freely available.4
One strong objection against my argument, that innovation and creativity occur also when there is no intellectual property protection, is that it could still be the case that there is more innovation and creative output with private intellectual property than without. Even though it is hard to prove, as we cannot test two social situations which differ only in their intellectual property regimes, there is evidence from historical comparative economic studies that this would not be the case. As we have already seen above, there were more books produced and sold in Germany without copyright than in England with copyright protection between 1750 and 1850. In an analysis of different historical studies about the economic implications of patents Michele Boldrin and David K. Levine came to this conclusion:
“To sum up, careful statistical analyses of the nineteenth century’s available data, carried out by distinguished economic historians, uniformly shows two things. Patents neither increase the rate of innovation nor are the best instrument to maximize inventor’s revenue.” (Boldrin: 2008:216)
As I wrote above, I do not assert that such findings can clearly disprove that there is more innovation and creative output with intellectual property, but they definitely give us important evidence to dispute the thesis.
Libertarian justification for intellectual commons
A just society, from a libertarian point of view, gives individuals equal rights to maintain and develop a life according to their own desires.5 If the distribution of resources has developed from free and consensual transactions, it is just6. In a world where intellectual property is individual property, only a few have access to the income rights of the ideas and cultural expressions which are appropriated by a ‘creator.’ And these few are not entitled to this benefit because they gain it through monopoly rights granted by the state. In a world in which intellectual property is common property, all ideas and cultural expressions are available to everyone. As we have discussed at several places in this essay, I am not questioning the self-ownership thesis. In fact this thesis is compatible with my argument for common intellectual property. I have shown in Chapter Two that we can question the natural law justification for intellectual property rights while still accepting the self-ownership claim that one owns one’s body, talents and labour. And in Chapter Three we saw that we may need to revise our perception that an individual has a moral right to claim ideas as his property even if we do not question his self-ownership as such.
One could argue though that for libertarians private property rights are essential rights for a just society, and therefore the idea of not allowing private intellectual property can never be endorsed by them. Besides the fact that there are also left-libertarian concepts which question the idea of full private property rights,7 we should keep in mind that intellectual property rights create rights over abstract objects and their justifications can be contested. To question intellectual property rights does not mean to question private property as such. Therefore it is not the case that a society without an intellectual property rights framework necessarily interferes with the personal freedom of its people. It is rather the other way around. Intellectual property rights are making it possible to privately appropriate abstract objects which otherwise would be in the commons. They create an artificial scarcity which otherwise would not exist. In a world without private intellectual property, every person would be able to innovate freely and to be creative without the interference of others. This is not the case today. I am not allowed to put a video, showing me playing a satirical cover version of Michael Jacksons ‘Billie Jean,’ on my website. I am not allowed to write a ‘Gone with the Wind’ version from another perspective. I am not allowed to create an online shop using a ‘one-click’ check-out process, as this is patented by an online retailer in the U.S.8 These are just a few examples, and it is true that I might be allowed to do all this, if I asked for permission, but we can easily see that such a system reduces my freedom to innovate. In a world without private intellectual property, no one is discriminated against. It is true that in such a society someone other than the creator or inventor can also take part of the income which can be generated from a particular invention or work of art. But as long as no one is prevented from doing the same, there is no problem with that from a libertarian point of view.9 It is also probable that in such a society we would not see the same accumulation of capital from inventions and cultural artefacts because of the lack of monopoly rights. Instead of having just a few big pharmaceutical companies we probably would see thousands of small ones, as the ideas for new health products would be copied all over the world in a short period of time. In other words, intellectual commons would massively increase the speed of the dissemination of ideas, far more than in the actual private property system. It is said that less medical research would take place without the incentives from monopoly rights, especially because it is so expensive to invent a new medical therapy and bring it into the market. Besides the fact that there are also other possible ways to pay the pharmaceutical industry for its effort,10 it is important to consider the possibility that the ways in which the funding of the research works, or how the processes to approve a new medical therapy are implemented, can be changed to adapt to a world without intellectual property, if needed. In particular, digitalisation and global connectivity over the Internet reduce the need for hierarchical organisations to run ambitious projects. I recall again the open source software movement, which creates the same type of complex products in collaborative networks as big companies do in hierarchical environments.
In a just free-market economy as it is endorsed in the libertarian literature, no one is prevented from participating in the market either as a buyer or as a supplier.11 There is also no hindrance to gathering the information needed to make rational decisions. Such a market is highly competitive. One important aspect of intellectual property rights is that they grant monopoly rights through the state. Such types of de jure monopolies should not be confused with temporary de facto monopolies which arise because of innovation and competitive advantage. In a free market economy de facto monopolies cannot stand for long if they are trying to generate profits above production costs. And even if they could, as long as they are evolved through a series of consensual market transactions, they are not unjust (Nozick, 1974). De jure monopolies are unjust because they limit the rights of other potential sellers to enter the market and they are inefficient because they hinder competition. Egalitarians and left-libertarians would disagree here and claim that unequal distribution of worldly resources is unjust even if it is the result of consensual transactions.12 If de jure monopoly rights help to create less inequality, they may be justified according to them. We will discuss the question of whether intellectual property rights can be justified from an egalitarian point of view in the next section.
That intellectual property rights are not to be considered as monopoly rights is another objection which can be stated. As long as there are substitutes availiable in a market, one cannot talk about a monopoly. Intellectual property is property like any other property in the physical world. So the fact that Gillette does not let you use its patents for their razor is in the same category as the fact that they do not let you use their fabrication lines. This is not a question of monopoly but a question of property rights. The same can be said about copyright. The book or the movie markets are very competitive. There are hundreds of thousands of new books published each year. One cannot say that consumers have no choice, and if an author does not let you use their work for a remix or a translation, it is the same as when he does not let you live in his writing house in Ireland. The argument that intellectual property rights are not about monopolies but about property, as convincing as it sounds, is begging the question. The type of property to which intellectual property rights are applied are cultural expressions of any sort, which are abstract objects. These objects as we have seen are by nature not scarce, and they do not lose any of their attributes when they are used by many people, unlike physical objects. An abstract object has in fact none of the attributes that can be ascribed to physical objects. Only after the application of intellectual property rights, through the granting of monopoly privilege, does an abstract object achieve some of the property attributes that are available for physical objects. Monopolies are not attributes of properties but of markets. Intellectual property rights grant the rights holders the exclusive rights to exploit the profits which can be created in the market for this cultural expression. It is true that property rights for physical products do usually also include the same type of monopoly rights for such a product, but as this product is a single instance, one cannot talk about a market for that single instance of this product. When I am the owner of an apple, it is true, I have as a side effect of my property rights also a de jure monopoly right for this particular apple. But there is no market for this particular apple, only for apples in general. I can sell my apple only once and then I have to pass it over to the buyer. No one would say that a monopoly right has been granted for the exploitation of their apple to this seller. The situation is different in the market for cultural artefacts. In the case of books, for example, we often talk about the market for books, which includes all book titles which can be bought. But from the author’s, and also most often from the reader’s perspective, there is rather the market for a particular book title. A member of the vegan community may want to buy a particular vegan cookbook and it does not help him much that there are also a lot of meat cookbooks on the market. An author of a fictional story is mostly interested in how many of his books have been sold and not much in how the overall book market has developed. There is no doubt that every individual cultural artifact has, unlike every individual apple, its own market. And intellectual property rights are granted monopoly rights to exploit that particular market exclusively.
It is important to clarify here that even without the de jure monopoly rights, a creator is not hindered from gaining profits from his cultural expression or invention; he just has to face more competition. It is even possible that he creates a temporary de facto monopoly just because of some other advantages he may have over his competitors. An author, for example, or a musician may create a market not for a particular song or a particular book, but for all expressions coming exclusively from him. Even if there are hundreds of bands which cover AC/DC songs, the particular band AC/DC still play their concerts for very high-price tickets in big concert venues all over the world. Only if there are no de jure monopoly rights in the form of intellectual property rights is a real market with many sellers and buyers possible. In such a market, all suppliers have the same chance to differentiate the product or the services around it and find their customers. Such a situation would most probably lead to more innovation than the current system,13 and more innovation is what the utilitarian justification for intellectual property rights claims as its reason.
We have not discussed whether a free market is a just market. That is not part of this work. What I have shown here is that there is not much room for proponents of a free market economy to justify intellectual property as they are granting de jure monopolies to its rights holders. Now we are going to analyse whether there is such a justification for the supporters of governmental redistribution of the profits gained in free markets on egalitarian grounds.
Egalitarian justification for intellectual commons
A just society from an egalitarian point of view gives individuals, in addition to equal rights to maintain and develop a life according to their own desires, equal access to worldly resources, such that the rules for distributing the resources equally amongst its members can overrule the personal freedom of the individual14. As we have seen above, intellectual property rights are monopoly rights which grant a temporary privilege to exclusively exploit income rights from abstract objects which are created collectively. Nevertheless there are several possible arguments to justify these rights on egalitarian grounds.
First, it could be argued that these privileges are not arbitrary. They are granted to individuals who deserve them, because they are the creators or inventors. It is not individuals with the most money who get the monopoly rights from the state, but those who are willing to bring their ideas into existence in form of expressions. If a privilege for creators serves the goal of getting a more equal distribution of wealth, it can be justified. A second point is that social justice from the egalitarian point of view needs state-enforced redistribution of goods, and therefore the state needs an intellectual property rights framework to redistribute the profits which can be raised from abstract objects. And a third argument would be that intellectual property rights are rights which help the individual creator against exploitation by powerful corporations or other organisations.
While discussing these arguments, we should be aware that we tend to apply distribution problems from physical objects to abstract objects. And in the world of physical objects and a private property rights-based society, we do in fact face the problems which come with unequal appropriation of worldly resources. An individual who has more talent may be able to appropriate resources faster than others, so that in the end there is nothing left. Today, there is not one square foot of land on our planet which is not ‘owned’ by someone. Whether the owner is an individual or a collective of some sort, there is always someone who claims ownership. Land and every other worldly resource are finite15 and therefore there is always a struggle about the question of to whom they belong.
But in the case of abstract objects, the situation is totally different. The use of abstract objects like cultural expressions, ideas, inventions and so on is not limited simply because someone else is using them, as we have discussed already. If I build my house on a piece of land, and someone wants to do the same on the same piece of land, he has to send me packing. He then has the land and I don’t. If I invent a wheel and use it for my convenience, I can share this invention without reducing its value for me. In fact any invention and any expression can be shared by anyone without diminishing its utility for others. The value for me also does not reduce if someone who has more capital at his disposal than I do is able to produce wheels to sell them on a market. I can still use my own wheel, which I have created. There is even a chance that the producer of the wheels innovates on it and makes it better, and as he cannot claim intellectual property rights either, I am able to use his ideas to upgrade my wheel as well. If there is a demand for wheels, chances are high that I will still be able to find my market for my handmade wheels, even if a lot of other ‘wheel makers’ are producing them at lower costs. Buyers do not value only monetary aspects; a lot more is often taken into account for a buying decision.
In a world with private intellectual property rights the rights holder can exploit the income exclusively; in a world with intellectual commons everyone has the chance to do so. From an egalitarian point of view this fact raises the problem that the more talented and/or the more powerful may be able to exploit the profits from the cultural expressions of any kind much more effectively than the less talented, whether this is the creator or someone else. This is partly true, but it is true in any world, whether there exists a legal framework for intellectual monopoly rights or not. We can see this very well in the actual situation in our world. Most of the income from intellectual property rights is concentrated around a few big players in every market. The main difference is that the powers are more stable in a world with intellectual property and more dynamic in a world without. In a world without intellectual property rights, monopolies could still occur but they would be de facto monopolies, and these types of monopolies will not last long. The abolition of intellectual property rights would lead to a more fragmented and decentralised economic situation as no one can be prevented from copying inventions and cultural expressions. Profits will be near zero for those who just copy and will be higher for those who innovate on the copy.
Intellectual property rights are not an effective instrument for redistribution of income or wealth. From an egalitarian point of view the problem of inequality persists, and as intellectual property rights are monopoly rights they create even more inequality on one part between the “winners” and the “losers” inside the system, but also between rights holders and users. If we consider the situation that without intellectual property rights, the use of any expression or invention is open to everyone, we can easily see that in such a world a much more diverse market would evolve. As there are no monopoly rights, probably many more individuals and smaller groups would use the cultural expressions which are free to use, and remix them with their own ideas to create new products and services to make a living. With the system of intellectual property rights which we have in place now, the exploitation of the inventor or the creator through big corporations is the reality. Only for a few ‘superstars’ might the situation be the other way around. There are two main reasons for this. First, it is expensive to get and even more expensive to enforce intellectual property rights; and second, the big money lies in the portfolio of rights and not in the single expression. Even if there are blockbusters which generate a multiple of the income from the average ‘product’ for the rights holders, it is usually the backlist, the sum of thousands of single products, which is the important source of a permanent revenue stream for the big rights holders. But isn’t it the case that the creator gets at least his share from the revenue stream and without intellectual property rights these companies could take everything for themselves without even thinking of letting the creator or inventor participate? This is true, but for most creators the share is so small that it does not contribute to enhancing their economic situation. In many cases they would be in a better situation to generate income with their creations if they had not exclusively sold the licences for the exploitation of his work to a single company.
From an egalitarian perspective, the most important question is: how can wealth be distributed equally amongst the people? The intellectual property rights regime obviously does not contribute much to solving this problem; it rather looks like it does the opposite. I do not argue here that the absence of individual intellectual property solves the general distribution problem, but it leads to a situation where many more people can benefit from cultural expressions, scientific research and inventions than now, and therefore less redistribution is needed.
The creative work as a common good
One objection against the abolition of private intellectual property raises the question of how the creative worker or inventor can make his living, when there are no property rights to protect his work from exploitation by others. It is often added that the creator or the inventor should have his fair wage for his labour like every other craftsman does. These are two different points and should be handled separately. First, as I have mentioned already, the creator is not hindered at all in generating an income from cultural artefacts or inventions. In fact the lack of intellectual property rights makes it impossible to hinder him from making something valuable for other people out of all cultural expressions, not only his. This gives him much more opportunity to generate an income. It is true that some business models would not work anymore, for example the pay-per-use model, which is widely implemented but massively under pressure since the dissemination of digital technology and the Internet. But others can arise and can be realised, models which are based on personal services and engagement. But, and this is important also for the second point from above, there can be no right to get an income from any business model, product or service someone wants to conduct or sell. There is no moral right for the artist to claim that he has done some work and therefore he wants to get paid for it. Imagine a small village with three bakeries in place, where these three bakers can all make a good living from selling their bread to the inhabitants of this village. Now, a new baker arrives in town and opens a fourth bakery but the economy of the village does not provide enough consumers to pay four instead of three bakers. The inhabitants continue to buy their bread from the three traditional producers. The new baker does not sell one loaf. Of course no one would say that as he has put a lot of labour into it he shall get his fair wage for his work. It is just that he has no market for his bread in this village. He has either to go and find a place where he can sell his bread or find something else which is lacking at this place.
4. The situation today is still that almost all academic research publications are copyright protected although the costs for the research and most often also for the publication are funded by public money. Academic institutions, libraries and private researchers have to pay a high price to the publishing houses to get access to the newest research material. This way the public pays twice, first to create the research results and second to access them, all in the name of copyright protection justified by utilitarian arguments.
13. This is an empirical statement like the statement from the proponents of the current system that intellectual property rights leads to more innovation. We have discussed already in this chapter that there is evidence that this claim may not be true and that even more innovation and creative works are produced without intellectual property.