Infreemation Part 2 – the tragedy of the intellectual commons

August 2nd, 2004 | by ian |

Intellectual properties include copyright, trademark, patent, trade secrets and mask works. (yes I needed to look that one up also!)

The laws that govern such properties and their relationship to society were designed to foster investment in creativity and innovation since society would (arguably) be much less productive without the commercial incentives of intellectual property ownership.

As such intellectual property law has been rather successful in the generation of new products and services that benefit society at large especially in the realms of culture and technology. (I say arguably since if you so not accept the prevailing market capitalism dogma there are many points to argue, but I digress. Let us accept the current mindset for the purposes of this argument.)

What we are experiencing right now is a phase transition. Historically there was some balance between the benefits to society and the incentive to intellectual property owners. We are rapidly heading towards a situation where almost everything can be locked up by lawyers, the ability to innovate and the healthy commerce which arises from technological and cultural creativity will be restricted, and only the very rich or well connected will be able to play the game. For an excellent and well reasoned account of this look no further than Laurence Lessig’s book Free Culture.

Thankfully phase transitions tend to be periods of instability and it is not too late to stop the mindless pillaging, or what I could refer to as the tragedy of the intellectual commons.

To take a classic example from biology: the exploitation of fish stocks has always required careful balance between the harvest of mature adults and the generational replenishment that cannot happen without the adults. Regulation of fishing is supposed to take this into account, and when regulations are poorly conceived or people get greedy or desperate there are consequences. It can take years for the result of overfishing to become apparent with a total crash or complete extirpation of fish populations. Short term gains for long term pains.

Economically I think we are facing a similar problem with intellectual property where the raw materials required for continued creativity and development of new technology is being seized and protected by lawyers. What will the impact be on society? I suspect society will find a way around this problem but it requires people to be more aware of these issues via education and be more politically active at one of the more politically apathetic times in history.

The patent system is a disaster and most people recognize it, with many in the industry trying to take advantage of the situation while it lasts. Thankfully in addition to the Federal Trade Comission and the National Academy of Sciences many other organizations are trying to do something about it. Anyone in the computer industry or biotech realizes that the patent system cannot meet its mandate since so many patents being granted that are both obvious to people who work in these fields, and in many cases have prior art. In any case it is not a strech to say there is a plundering of public domain intellectual property here by private interests.

In terms of social disasters, copyright is heading in a similarly depressing direction but it is much less obvious. Pretty much everyone is in agreement that we should be able to protect original works for a length of time. The problem is when original works are now automatically protected for an effectively unlimited time, equivalent to more than human lifespan. Given that every new creation is based on some influence, similar to how children are different from their parents due to a mixing of their parents genetic information, what we are doing is severely restricting the available raw materials required for the very act of creating original works. In biology, evolution’s ability to solve environmental and competetive problems faced by organisms is proportional to the availability of genetic diveristy in a population. Society’s ability to develop culture and adopt technologies also depends on a similar diversity of information available for free use.

Why would corporations who thrive on creation of original works actually want to limit the available raw materials as well as restrict access to many works that are available through high licencing fees? At the end of the day it means it will take lots of money to create many original works, and that is how these companies want it. Similarly the patent grab has companies trying to extort other companies who have used their illegitimately claimed inventions which will drive up the risks and costs of developing new technologies. In the end it is a tragedy of the commons: intellectual resources that are rightly public are consumed by self serving corporations and in the long run everyone loses since our society and economy are poorer for it.

Post a Comment