The Blind Giant (18 page)

Lawyers break IP into three parts: copyright, patent and trademark. They are absolutely not mutually interchangeable, having distinct applications. Copyright applies to written and recorded original work: this book, for example, is protected by copyright. Derivative works are also protected, so you can’t simply read the book aloud and charge money for recordings. However, if you did make a recording, some rights in it would rest with you: I could not come in and take it for my own use without your permission. We’d have to make a deal, and agree some kind of split. Or, of course, I could read the book aloud myself, and require your recording to be destroyed.

Patent is for mechanisms and chemicals; it has a much more limited lifespan, and a more arduous registration process. It is the
rule by which drugs companies prevent others from reverse-engineering their products – and, some would argue, keep prices artificially high. In the past, drug research was hit and miss and very expensive, so pharmaceuticals manufacturers argued that they had to cover their costs. Recently, however, advances in computing and genetics have begun to change that.

Trademark is the stamp you see on official merchandizing and designer clothes. It restricts use of, for example, Gucci’s logo to Gucci clothing and products and anyone licensed by the company. It’s an origin mark. It also prevents anyone except the
Walt Disney Company from using Disney’s famous characters in toys.

It’s worth noting that some, including
Richard Stallman, contest the grouping of these three ideas under a single banner.
²
To Stallman’s eye, the various aspects of what is commonly called intellectual property have only a superficial similarity, and the conflation leads to errors of comprehension and logic. It’s true that under the US construction, for example, trademark is enacted under a different part of the constitution from copyright, although the law was originally created under the same clause and subsequently struck down and then re-created in a new venue. The US perception, however, is far from being the only one.

In fact, the rationale behind intellectual property of different types varies from country to country. In some places, it is regarded as an inherent right, a moral right, derived from what in the UK is called ‘sweat of the brow’. Some people, both pro- and anti-IP, see it as something that comes out of the act of creation. In the case of those who resist IP, this leads them to deconstruct the notion of creation, to represent it as a manner of synthesis. They argue that all
creativity is in fact derivative, that in consequence nothing is ‘original’, but draws on a collective intellectual heritage and is therefore common property. (I can’t shake the feeling that accepting this assertion ultimately entails a belief that
we are all owned outright by the group from birth to death, and that anything we have must be yielded up on request to others, an idea I deeply mistrust because it seems to feed straight into writer
Ursula Le Guin’s Omelas dilemma, in which a perfect society is sustained by the effective torture of an innocent.)
³

In the US, by contrast, the basis of IP law is notionally utilitarian: it is a financial inducement to creators to make work, secured by Article 1 of the constitution, authorizing Congress to ‘promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries’. That basis seems to me a
post facto
rationalization, a way of coding for something that appeared right but which was a bad fit for the legislative ethos presently in the ascendant; the consideration was derived from British law, but the British thinking behind it was unpalatable, perhaps because it was British, or because it happily appealed to intangibles where the US was to be a rational enterprise. It certainly doesn’t stand up well to the modern world or to the copyright wars in which large companies fight to retain control of long-running franchises – essentially to avoid having to come up with new, brilliant, competing works. More interesting to me is the notion – which I believe prevails in German law – that a creative work is an extension of the creator’s identity or person into the world.

Whatever its jurisprudential basis, we mostly encounter copyright in the digital realm in negative ways: rules telling us not to share songs, download movies without paying for them, and so on. Very often, efforts to enforce the rules are more obnoxious than the rules themselves, especially to those who are trying to obey the law. Digital Rights Management software can make perfectly legitimate actions impossible and when it glitches, which alas it does, can shut down altogether entirely sanctioned use of purchased media. But IP is also what prevents a photographic shop (or, these days, a photographic website such as Flickr) from selling my holiday snaps to a tour company for use
in their brochure. And as citizen-creators become more common – as more and more people have at least some presence on social networks – it becomes a way of preventing an unwelcome entity from turning playful production into a profit centre without permission: in June 2010, for example, it emerged that the UK’s
Sun
newspaper had had to scrap a football competition it was running that made use of thirty-two football blogs, some without permission.
⁴
The Sun’s coverage of the Hillsborough Stadium disaster in 1989 in which ninety-six people died was wrong-headed and accusatory, and is remembered among Liverpool fans as an unforgivable bit of media thuggery. Naturally, therefore, some bloggers on the football scene wanted nothing to do with the paper. Contact with it would have represented an invasion of their space by an unwelcome force. Copyright was the legal lever that allowed them to push back against the
Sun
and assert – as the German perception would have it – a right of identity.

The concept of IP or something like it is only going to become more important, rather than less, as we embrace new technology. In a world where the human genome itself is legible to us, for example, who owns the rights to our
DNA? A few years ago it would have been ridiculous to worry about it, but now it’s merely far-fetched to ask: if I were to collect DNA from someone I found attractive, say from a hairbrush, and have it combined with my own and placed into a viable human egg, would I have committed some sort of violation? What if I didn’t bother with my own and simply had a clone made of the object of my desire? Or, more immediate: suppose my genetic make-up is in some way valuable, as was that of
Henrietta Lacks, whose tumour became the HeLa cell line from which are derived nearly 11,000 patents (I use that number not as a measure of financial but medical value)? Should Lacks have been entitled to some compensation, even if it was only palliative care, for use of that line? Should a government have a right to step in and acquire DNA that is thus beneficial, so preventing an unscrupulous person
from holding back the cure for some appalling disease in the name of vast personal profit? Or should the individual be protected from claims by the state to own the body and genetic map of a human individual? It’s important to ask these questions now, before they’re pressing. If we have to answer them in haste, we may not like the outcomes.

Less dramatic, perhaps, but liable to cause considerable perturbation and tumult in the commercial world: advances in 3D printing – making objects by rapidly ‘printing’ or extruding layer upon layer of material in a pattern controlled by a machine – will soon mean some objects can be created from digital templates using a printer that can be run from a car battery and which can make all the necessary parts to replicate itself. In other words, increasingly complex physical objects (the latest iteration of the RepRap 3D printer can incorporate basic printed circuits into its products) will soon be reproducible with almost the same ease as digital files. The technology can in theory use plastic refuse – old fizzy drink bottles – and could bring fairly high-tech manufacturing to remote locations. Is there a mechanism for paid-for printing? Should there be? Many people already put templates online for communal use, in the Free Software tradition. Others will wish to exact a payment for the work in creating and testing their objects. How should we view that request? When the discussions of ownership that are now restricted to the digital arena start to touch upon conventional manufacturing, what does that mean for our economic assumptions? And what should it mean?

Walter Benjamin wrote that ‘Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be.’ But in the digital context, this is of only limited help; in the first place, digital objects do have a history of physical presence, though it’s one we choose to ignore because it boggles our human scale perceptions somewhat: an existence as electrons arranged to hold information, which could actually be a very
loose description of us, too. On the other hand, in the conventional setting, some artworks – and some objects – now never have a physical existence until they are reproduced. A little while ago (like quite a lot of people I know) I fell in love with the artwork of Sydney Padua’s
Lovelace & Babbage
web comic.
⁵
Tentatively, I got in touch with Sydney and asked her about the originals. I had it in mind that I might try to persuade her to sell me one; but, of course, she draws the entire thing digitally. The brushstrokes and pencil lines are all intangible, and there has never been a fragile A2 sheet taped to an easel that I could have on my wall. (Instead of buying a drawing, I found a friend: as ever in my experience, the downsides of digital living were outweighed by unanticipated benefits.) So how would Benjamin find its ‘unique existence’? But at the same time, would anyone (or at least, anyone not of the persuasion that original work is impossible) seriously deny Sydney’s authorship of a unique piece of art just because pencil never touched paper?

No. Intellectual property, more than ever, is a line drawn around information, which asserts that despite having been set loose in the world – and having, inevitably, been created out of an individual’s relationship with the world – that information retains some connection with its author that allows that person some control over how it is replicated and used.

In other words, the claim that lies beneath the notion of intellectual property is similar or identical to the one that underpins notions of
privacy. It seems to me that the two are inseparable, because they are fundamentally aspects of the same issue, the need we have to be able to do something by convention that is impossible by force: the need to ringfence certain information. I believe that the most important unexamined notion – for policymakers and agitators both – in these debates is that they are one: you can’t persuade people on the one hand to abandon intellectual property (a decision which, incidentally, would mean an even more massive upheaval in the way the world runs than we’ve seen so far
since 1990) and hope to keep them interested in privacy. You can’t trash privacy and hope to retain a sense of respect for IP.

Walter Benjamin wrote about art in the age of mechanical reproduction in 1935. The fear that machine-made objects are less real, less virtuous than those created by human hands reaches back further, to Victorian-era
John Ruskin and his espousal of the gothic as an expression of the human soul. It’s very much what you’d expect if creation and making really are central to being human. In the digital age, this question becomes one of pattern versus presence: a digital recording or live online connection versus the physical presence of a person in a room (or the physical presence of an artwork). Those who dislike digital interactions often assert that computer-mediated communication is different from and lesser than physical meeting.

If you’re the right age, you may also remember the scene from
The Matrix
in which
Laurence Fishburne sits back in a leather chair and skewers a bewildered
Keanu Reeves with his gaze. All around them is a charred cityscape, a civilized world made ash. Fishburne wears black sunglasses that have no arms and so are affixed to the bridge of his nose; his voice is resonant with truth and a kind of menace. He says: ‘Welcome … to the desert of
the real.’

The Matrix
came out in 1999; it was far from being the first film to suggest that the world we live in is an illusion, but certainly one of the most enjoyable. The uneasiness of the idea – that everything around us is fake, that at any moment someone may come along and show us the world rolled up like a scroll (to borrow from the Bible) and the real truth behind it all – flows through a lot of recent popular movies.
Memento, The Truman Show, Inception, Unknown, Dark City:
all of them are premised on some variant of the idea that the world as we understand it is not real. The idea has even been proposed as a literal scientific truth; the logic is that any universe capable of supporting life will eventually
evolve technological life able to simulate a universe. Within a simulated universe, cultures will emerge that are similarly able, and so on and so on in an infinite regress of simulations. If there is only one physical universe and a potentially unlimited number of simulated ones, the chance that we are living in the original and not one of the simulations becomes vanishingly small.