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| The internet and common goods Own or share? Enforcing intellectual property law in the digital age means fighting ever more effective and powerful new modes of creation made possible in part by collaborative development through the internet. By Philippe Aigrain IS THERE any limit to property? Current developments might suggest not, as property rights are steadily extended. Property rights, in the form of patents, copyright and, to a lesser extent, brands, apply to ever wider fields and are protected by ever stronger laws, police powers and technological tools. Resistance to the patenting of medicines, software, plant varieties and cell strains has been active and determined. But it is up against a concerted offensive by multinational companies, patent offices, specialised legal consultants, the United States government and the European Union, all working together to reinforce and extend property rights. New technologies are helping to make copyright law more strictly enforceable, preventing the use of copyright material even for legitimate ends (1). When it comes to violating intellectual property rights, everyone is guilty until proven innocent, from users of peer-to-peer file-sharing networks to farmers whose crops have accidentally become mixed with genetically modified varieties for which they do not hold licences (2). Jean-René Fourtou, the CEO of Vivendi Universal and chairman of the International Chamber of Commerce, addressed directors representing pharmaceutical, media and software multinationals at the United Nations in October 2004. He announced a global war on intellectual property piracy, calling on business leaders to unite and form a massive lobby working to influence governments (3). This will be a pre-emptive war that lumps independent producers and users in with industrial counterfeiters and organised crime, imagining a single enemy that will be defeated via tightly and ingeniously enforced property mechanisms. There has been resistance to this offensive. Campaigns for access to medicines in developing countries have had some success, as have those against the patenting of software or living organisms. Increasingly, patent applications for GM crops or biotechnology products are rejected. But resistance is fragmented; campaigns only rarely succeed in pulling together as parts of a single cause. On the technological side, there is a strong pull away from ownership of published works or recorded media. New forms of collaborative innovation, whereby ideas and expertise are freely shared, are proving more productive than traditional ways of working. Once dismissed as the work of an eccentric fringe of naive scientists who didn’t understand the harsh reality of economics, these cooperative approaches are now being taken more seriously. They have the particular advantage of orienting innovation towards the general interest and the preservation of cultural diversity, rather than being tied to profit incentives. Academic research has convincingly established the superiority of what Yochai Benkler calls “commons-based peer production” (4) in a wide range of information technology development. In this model, every stage in the development of a product is freely accessible to all, and anyone who wants to use or modify it may do so as they see fit. The product is in this sense a common good, and is often protected against patenting by any individual or group. The development of diametrically opposed visions vying for pre-eminence will have profound implications for the future not only of technology, but also of the world’s economies and social systems. Two scenarios are proposed. One vision’s most fervent supporters are a small group of large multinationals, represented by Fourtou’s UN audience. Their position was summed up by Bill Gates, who dismissed those wishing to restrict intellectual property rights as “modern-day communists” (5). More moderately, the defence of intellectual property is based on a conviction that it is the oil, “black gold”, of the 21st century. Critics such as Jeremy Rifkin (6) regard that defensive vision as a plausible nightmare which is to be avoided. And the defensive vision has flaws that cannot be ignored. IT networks do not lend themselves to requisitioning or to restrictions on access and usage; such restrictions are a hindrance to their development. A number of important projects (see Open sources, below) have shown how powerful the alternative vision of cooperative development can be when freed of the constraints imposed by property and contracts. But there are difficulties: attempts to expand free cooperation models and apply them to new areas meet internal obstacles. One problem is the complexity and perceived impenetrability of technology, whose future we have been too willing to abandon to specialists. Another is fear about what reappropriation by the public might mean. Society’s inventiveness is gradually finding ways around these problems. The preservationists, with their artificial engineering of scarcity to maintain monopoly prices, are encountering serious difficulties: information capitalism is proving as fragile as it is powerful. A serious illustration of this fragility is the total divorce between pharmaceutical companies’ profits and share values, and their strategies’ real effects on public health. Financial concerns lead them to prioritise research objectives that are not those which society needs (7). Coalitions are now emerging to challenge the arrogance of big pharma proposing an alternative that will re-establish the common good alongside the principle of property, complementing the more general effort to rein in the financial sphere’s unrestrained power over the economy and society. Is this hoped-for coalition of the common good possible? Or is the fight against restrictions on the circulation of information goods (including data, software, expertise, genetic information and the organisms that contain it) a utopian dream? The movement has had a few successes: resistance to software patents in Europe; the emergence, at the World Intellectual Property Organisation; and at Unesco, of coalitions that bring diverse NGOs together with developing countries’ governments. Officially, documents such as the 2004 EU directive “on the enforcement of intellectual property rights” (8) are intended to fight organised crime and its links with industrial counterfeiting. In practice, they facilitate attacks on generic medicines, freeware and voluntary sharing of products. Do charities and campaign groups working with impoverished countries, plus a few lawyers and political figures, have a chance against highly organised business lobbies defending IP with armies of lawyers and connections at the highest level in governments and political parties? There are reasons for optimism. Though the international legal system seems biased towards the interests of multinational companies, it does not know how information is exchanged and innovation achieved in reality. Despite redoubled efforts, tighter rules and harsher enforcement practices, stopping free information exchange is about as easy as pushing water uphill. The popularity of freeware is helping to establish the principles on which it is based. Goods developed through free exchange and cooperative innovation present such advantages, in independence from suppliers, that they are finding their way into more homes and offices, including those of major administrations and companies. This kind of creeping, underground spread among users is not enough. It keeps commons-based peer production at a distance from the mainstream economy, instead of developing new forms of integration. It cannot provide funding to enable all citizens to participate in the development of common goods and of a large, vibrant sphere of activity. If it is to be credible, any coalition in defence of common goods must articulate its proposals around the general aim of bringing capitalism back under control. To do that, we need to reject the defeatist mentality that treats technological change as an external factor independent of human choices and actions.
See also Open sources Translated by Gulliver Cragg Philippe Aigrain is a campaigner for common goods and author of Cause Commune (Fayard, Paris, 2005, www.causecommune.org) (1) EU Directive 2001/09 frees the providers of “protection” technology from any obligation to allow for legitimate uses of the material they protect, even where the law recognises these legitimate uses. If the protection is bypassed, it is so hard to prove that this was for a legitimate end that in practice the technology makes the law instead of the judge. (2) See the case of Canadian farmer Percy Schmeiser’s battle with the chemical giant Monsanto. Schmeiser was found guilty of violating its patent even though the Monsanto patented crops he was accused of “exploiting” had grown on his land because of natural accidents. See www.percyschmeiser.com (3) Financial Times, London, 12 October 2004. (4) Yochai Benkler, “Coase’s Penguin, or Linux and the Nature of the Firm” in Yale Law Journal, New Haven, 4 June 2002. (5) Michael Kanellos, “Gates, ‘Restricting IP is Tantamount to Communism’”, CNET News.com. (6) Jeremy Rifkin, The Age of Access, Putnam Publishing Group, Itasca, 2000. (7) See Frederic M Scherer, “Global welfare and pharmaceutical patenting”, The World Economy, Oxford, July 2004. (8) Directive 2004/48/CE, 29 April 2004.
English language editorial director: Wendy Kristianasen - all rights reserved © 1997-2005 Le Monde diplomatique.