Intellectual Property – the big 21st century faultline?

Eqypt are set to pass a law forcing royalties to be paid to, erm, Egypt, every time anyone makes a copy of a pyramid or an ancient Egyptian relic. This presumably means I’ll owe them money every time I press the arrow (^) key. But of course, this isn’t the first time a government has passed a special law to protect a specific piece of intellectual property: after all in the UK we have given Peter Pan protected status specifically with a view to bankrolling the Great Ormond Street Hospital, and who could object to giving money to sick children?

This is a rather extreme example of the what is increasingly emerging as a major faultline in civilisation which seems set to dominate much of the 21st century. On the one hand we have global multi-media empires which look set to exploit – and extend – IP as much as possible. What some economists call “superstar economics” means that a piece of IP – pretty much any piece it seems can be exploited for millions, even billions of euros at a global level. On the other hand, there is the open source movement, the idea that the future lies in collaboration and sharing. Largely voluntary movements such as Creative Commons may seem benign enough, but Bill Gates has already denounced open source as a new form of communism, and beyond the obvious face offs such as Napster, we have yet to see how more sophisticated ideas about opening up other mediums and industries might challenge the status quo. One thing to look out for in my opinion is how the movement for opening up access to public data develops. Already there are rumblings objecting to the idea that people should have free access to something that the government has been flogging to private companies for years. Crown copyright has effectively lined the pockets of companies such as Dod’s for years; what will lobbyists do if large amounts of what companies such as this do suddenly becomes available to every Tom, Dick and Harriet? Somehow I doubt Dod’s is going to take this lying down.

One thing is sure, the traditional industries are feeling insecure and starting to behave in a manner not unlike a cornered animal. The ridiculous behaviour of the Performing Rights Society, described on this blog last month, is far from unique. Buy or rent a DVD, or go to the cinema, and it is now par for the course to essentially accused of theft by the very company you have just increased the coffers of in the form of their insulting and bossy FACT warnings (to be fair, their recent cinema adverts are somewhat gentler and might even be accused of having a sense of humour, if you don’t mind being talked down to by a cartoon rodent).

Over the past few days there have been a number of articles in the press about the music industry (and now MPs) taking a stance against websites such as eBay selling on tickets. We are now to understand eBay and the like as being virtual “pimps” – an analogy which is fine so long as you accept that the same basic description applies to estate agents (indeed any kind of agent) and indeed anyone working as a middle man in any industry (including, erm, record companies).

Harvey Goldsmith is proposing legislation to make it illegal to resell tickets to music gigs along similar lines to the existing legislation that applies to football matches. Yet this legislation is there for a very specific reason: it is designed to prevent football hooligans from buying their way onto their rivals’ terraces. Whether you approve or disapprove of this legislation, its intent is to stop people from being maimed and even killed; Goldsmith is calling for nothing more than the protection against their own gullibility.

Much of what seems to be developing appears to be perfectly legitimate. For example, what’s wrong with creating a futures market for ticket sales? It sounds like a perfectly good service for sports and music fans.

The solution to all this seems to be obvious to me: rather than trying to shut down the auctioneers, who are only providing services at the price people are willing to pay, why not sell all tickets in this way in the first place? The music industry appears to take great delight at how quickly they sell out of mega-gigs, yet all that ensures is that the tickets go to the most enthusiastic, the luckiest and the most organised. The average punter loses out at every turn. Surely auctioning tickets would not only ensure that the company (and artist) gets the right price, but would limit the potential resell value. We don’t need new laws, we just need new business models.

(The music industry in particular doesn’t seem to get market economics. If it isn’t complaining that the value of tickets to gigs is to high, it is complaining that the value of CDs is too low. The CEOs of Sony, EMI et al wouldn’t look out of place in the management board of a tractor factory in Stalin’s Russia)

But it doesn’t end there. Both global patent and copyright laws have been extended in recent decades. The original idea behind such laws appears to have been forgotten and pure greed has taken its place. Globalisation means that the earnings potential from a new idea has massively increased; yet at the same time we’ve artificially increased it further still, and long lives will extend this still further. To take one example, J.K. Rowling, a rich woman who can afford the very best in healthcare, is likely to have a very long life. Let’s assume she lives to 100, in 2065. The copyright on her books will stay with her estate until 2135. That means that her great-great-great grandchildren will still be profiting from their ancestor’s books. Is there really any justification for that? I’m all for an artist’s work being protected, but when a work becomes a global brand, doesn’t there come a point when the money made from it is no longer reflective of that work’s value and more based on the value of the marketing behind it? Doesn’t there come a point where these laws no longer protect creativity but stifle it?

Compare Batman to Robin Hood. Anyone can make a Robin Hood movie; the character is in public domain. To make a Batman film (or comic for that matter), you need the permission of Time-Warner. Who does this serve? Isn’t Batman now an iconic enough figure in popular imagination in such a way that is bigger than any corporation?

It is, I readily acknowledge, a moot point. But I’m less concerned about the here and now than I am about the prospect of a century of corporations owning vast catalogues of intellectual properties archived from the 20th century and trying to find ever more creative ways of exploiting them. As a civilisation, we’ve never had to face such a privatisation of ideas before. Technology will make it easier for corporations such as Disney to take legal action against anyone using their IP without permission – on the web and, without wanting to get too sci-fi here, ultimately in your mind? – yet what moral rights do they have over such cartoon characters that have become part of our folk memory?

It strikes me that all this could take a turn for the much worse and inevitably there will be a backlash. And ultimately this is deadly serious because it goes far beyond books, music and cartoon characters; much of the value of our stocks and shares are rooted in intellectual property; challenging the laws allowing Marvel to keep hold of Spider-Man could have enormous consequences for instance. And that means huge vested interests are at stake here.

As with land, I can’t help but feel that the debates on intellectual property that were raging at the turn of the last century will increasingly be revisited in the not so distant future. At stake is nothing less than who owns our very culture.

12 thoughts on “Intellectual Property – the big 21st century faultline?

  1. I have often thought that about tickets to gigs – the organizers are losing money by allowing the touts to buy at face value and sell on for a profit that the organizers themselves could be capturing. We don’t need to outlaw touting, gig organizers need to stop being cretins, or stop complaining.

  2. I think this is somewhat harsh with regard to selling tickets to gigs or sports events. The reason fro trying to control the price is not stupidity or quasi-communism where you would least expect it. Sports organisations want to keep a large long term audience. Auctioning tickets to big sports events would no doubt raise huge amounts of money in the short term, but as it would effectively price large numbers of people out of ever attending major sports events it could erode long term broad based support for the sport. The widespread determination of sports organisations to control prices to major events suggests this is a widely held opinion and as it applied to commercially successfully sports is probably economically rational. If an organisation sets up an event, it strikes me that the organisation is entitle to control the price of entry and do what it can to prevent reselling. Of course there is no reason for government to get involved here except in the normal law enforcement way. One of many nanny state Blairite actions was to set up some official body on prices of sporting events, an absurd duplication of the commercially based actions private sports organisations may undertake to keep a large supporter base.

  3. I’m not so worred about art. You can take it or leave it. Innovations is more of an issue.

    ISTM it is fair enough to say to an innovator – thanks for coming up with this, have a monopoly. And, further, somebody else would have thought of it sooner or later, so you can’t have the monopoly for ever. A flat number of years for a patent seemed a reaonable arrangement. Yet to most small and medium innovative software companies, patent law will only ever be a threat and never an opportunity. It is too expensive and cumbersome to play with, and more expensive to be tripped up by. I imagine this may often be the case outside software. Perhaps a higher innovativeness threshold is needed. And perhaps a different approach to fast moving fields, that might allow us to spend more on innovation than on lawyers.

    Anyhow, would anybody else, sooner or later, have invented Harry Potter?

  4. I think there is an even more worrying trend in IP. That is the patenting of inventions that are ‘alive’ in the US. It is now legal to register any part of life in the US Patents Office. This includes, eventually, the entire human genome. Before you know it we’ll probably have to pay royalties to Disney, Coca-Cola or Nestle for reproducing!

  5. Lots to respond to here.

    Firstly, Barry. I wasn’t singling out sporting events so much as music events – as I alluded to with football for instance there are legal restrictions on ticket sales which have very little to do with revenue protection and everything to do with crowd control and crime reduction. But even with that caveat, I’m not convinced your criticism holds up.

    For one thing, ticketing at a standard price often leads to stadiums being empty. Auctioning tickets would create incentives for people to attend less popular matches. Ultimately, the reason there is a touting market out there is that people are willing to pay more for tickets for certain events; far better to formalise that at the point of sale rather than this informal market.

    In terms of long term crowds, there are other ways of ensuring this than artificially reducing the ticket price. The time honoured way of course is to sell season tickets, which are much easier to link with an individual and therefore less prone to touting. Yet all the football fans I speak to complain of their clubs cutting back on season tickets. I’m not convinced they are the benevolent guardians of long term supporters that you present them as.

    Joe, mea culpa. I didn’t discuss patents at all in that article and it is certainly a glaring omission. The reason I think it is relevant to the arts is that this amounts to the mass privatisation of our culture. Already we are seeing a music industry going bonkers and trying to get people fined or imprisoned for what they put on their iPod, despite the fact that popstars’ earning potential now is vastly more than it was a couple of decades ago. With the pace of technology what it is, how long before they move on from iPods and onto people’s brains? Can’t get that annoying new song out of your head? That’ll be £50 please. I’m exaggerating, but not much.

    As for Harry Potter, yes, I do think that if Rowling hadn’t had come up with the idea someone else would have. After all, all she ultimately did was combine the whole boy wizard idea (Luke “Summer Magic” Kirby, Tim “Books of Magic” Hunter, er, Luke “Star Wars Episode 4″ Skywalker) with the longstanding British genre of boarding school-related fiction (Billy Bunter, the Four Marys, etc.). Some would argue that Stan Lee and Jack Kirby did that decades earlier with the X-Men. Enjoyable though the books may be, a startling act of originality they most certainly are not.

  6. I think this is a good post.

    There are a number of battles already ongoing:

    1. The continual extension of copyright under Lobbyist pressure of the US Congress – to protect Mickey Mouse and older movies.. Can this go on forever, and does the EU have to follow the US down this route, as our politicians are less dependent on the industry for funding?
    2. The EU looks keen to legislate on patents, as mentioned above. Innovation and hence economic growth will be largely dependent on the tightness of patent law as it evolves in the next 20 years. It could all go horribly wrong, we’ll see. The Lib Dems in the European Parliament haven’t exactly been on the side of the light so far.
    3. The regulation of the Internet – control of servers, encryption libel, illegal information, anonymity and the like rages at the moment. The US Congress simultaneously requiring more control over US companies, whilst chastising them for working in cooperation with the requirements of China. There could be some technology solutions to anonymity and the like here, but what will lawmakers do?

    I guess we’ll have to wait to see what the next battles of the 21st century will be. I’m already sensing concerning moves in terms of DNA, human genome, plant/crop DNA ownership issues – Right now this all seems terribly uncoordinated.. I wonder if there’s an opportunity for a new settlement that doesn’t take too much of a corporatist perspective on things.

  7. Your contrast between Batman and Robin Hood is interesting, but a much more apposite contrast is with Sherlock Holmes. Holmes, aside from the Case Book in the United States (which was published posthumously there), has been out of copyright for a long time, and was never trademarked. Batman is about fifty years more recent than Holmes, but will remain in copyright for many decades more.

    The question of whether the great-grandchildren of Sir Arthur Conan Doyle should have approval over Sherlock Holmes films and TV, plus an income from the copyright, or whether Sherlock should be accepted to be part of the wider culture, no longer exclusively owned by the Conan Doyles does not seem one that is difficult to settle.

    So why do we have a problem with the same issue when it’s about Walt Disney’s great-grandchildren, or Time-Warner?

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