Pink dolphins are my idea, and I refuse to let anyone else think of them. Anybody who does think of pink dolphins must pay a royalty fee for each time they think of pink dolphins, multiplied by the number of pink dolphins they think of.
That last paragraph is a simple – and absurd – example of why so-called intellectual property is an oxymoron. If it’s intellectual, it can’t be property. The concept is based on the premise that ideas can be treated as things, and that’s just not true.
Why is this important to us here in Vanuatu? This week, trade ministers from member nations of the Pacific Islands Forum have been meeting to discuss regional issues. One of the biggest items on the agenda is the creation of a new trade agreement with the European Union. Among the demands the EU is making is enforcement of what they call Intellectual Property Law. This includes trademarks, patents and copyright. In practice, it’s a hodge-podge of laws that are more or less useful for their original purpose, but which have lately been twisted into something else entirely.
The basic idea behind these laws makes perfect sense: Authors of creative works should have the right to be rewarded for their efforts. Copyright law says that people aren’t allowed to sell copies of a book (or a CD or a DVD – you get the idea) without permission from the author. After a reasonable period of time, copyright expires and anyone can copy these works without limitations, but the author gets first crack at it.
Trademark law says that a person or a company has the right to uniquely identify themselves. The Arnott company makes Timtam cookies, which I happen to love. Now imagine if another company were allowed to create second-rate cookies with the Arnott logo and the Timtam name. This other company would be trading on Arnott’s reputation, and not only would Arnott’s good name be sullied, I wouldn’t be guaranteed a reliable supply of my favourite cookies.
Patent law is another way for inventors to profit from their inventions. Let’s say I invent a process to manufacture pink dolphin toys and sell them as playthings to little girls the world over. That’s a pretty unique invention, and it would probably have a lot of appeal. But imagine if someone else with a lot of money – and no good ideas of their own – were able to copy my process and flood the market with their knock-off pink dolphins. I’d have the right to be upset, and patent law would allow me to either stop this happening, or at least to receive a royalty payment for every pink dolphin sold.
All the above examples have one thing in common. While ideas and creativity are crucial to each one, the laws themselves are about things. Copyright protects against copying. Trademark law protects against the abuse of identifying marks. Patent law gives protection against copy-cats.
But how do we apply these laws to computers and the Internet? In the material world, enforcement of the law is simple: I can lend my copy of a book to a friend, but I’ll be in trouble if I print off 500 copies and sell them in the market. But what about a song I download from the Internet? What if I want to make a copy to put on my iPod? What if I really like the song and want everyone I know to listen to it?
The big media and software companies have one answer: They want to be able to dictate exactly how people are allowed to use their creations. Their expectations range from the reasonable to the ridiculous. At the reasonable end of the spectrum, people or companies who invest their time in making something we enjoy deserve to be rewarded for their work. We should all try to make sure that the money we spend on software, music, movies etc. actually goes back to the people who worked so hard to create it.
But there are unreasonable aspects to the concept of intellectual property, too. I should be able to make a reasonable number of copies of song or a piece of software. I should not have to pay twice for the same thing. A reasonable ability to share files with friends and colleagues is actually good for everyone, too. It popularises creative works that might otherwise have a hard time getting people’s attention.
Applying patents to ideas is silly. If I invent a clever method for paddling a canoe left-handed, should I have the right to stop anyone else from paddling left-handed? Of course not. It might make sense if I made a special left-handed paddle. I could reasonably expect to profit from my invention. But a new paddle stroke? How could I possibly control its use?
Or suppose I write a song about pink dolphins? What reasonable expectations should I have? I should be able to be rewarded for my performance of it. And if I made a recording of that performance, it seems only right that I should earn some share of money that people pay to listen to it. But trying to stop people from ever writing other songs about pink dolphins – well that’s just foolish. Or trying to stop someone who likes the song from singing their own version of it, or letting their friends listen to it: Foolish foolish foolish.
And yet this is precisely what the EU want us to do. Trade negotiators have made it clear that they want to include ‘Intellectual Property’ laws in the next major trade agreement, the EPA.
Reasonable copyright, trademark and patent laws are fine. But they need to considered in light of what’s best for Vanuatu, not the EU. And they need to make sense.