Infrequently Noted

Alex Russell on browsers, standards, and the process of progress.


This article got Jennifer and myself talking about IP (no, not that one, the other "IP") restrictions for developing nations.

Jennifer said that she could see both sides of the debate: on the one hand, developing nations need a helping hand, not a slap across their collective wrists (or worse). OTOH, incentive for firms in rich nations to produce products of universal benefit is lessened by lack of IP protection in many of the possible markets.

So what's the right answer? What is an "appropriate" level of IP protection for developing nations to enforce?

To answer this, I think we need to take a step back and ask ourselves a more basic set of questions: what is being protected and why?

As the article rightly points out, America's infatuation with IP isn't some core value which has been enforced since time immemorial, it's largely an affectation of the last half century. For the first century of America's rise to promeninence, we were, in the words of Lessig, a "pirate nation." The copyright, trademark, and patent systems which now seem to ensure that every sunset is copyright someone (in perpetuity) in fact only arose in America because of an organic need. Said another way, America's IP system doesn't cover some sort of intrinsic right (such as liberty or the pursuit of happiness), rather they are expedients to economic well being.

Intellectual Property has tenuous position in the constitution, and the reasons for this are well considered: the founders understood that intellectual property (patent, copyright, etc...) should only be tolerated in a society insofar as they promote the public good. For the first century of our nation, we (collectively) viewed a rich public domain as beneficial. A rich public domain allowed Americans to create derivative works at a break-neck pace. Abuse did occurr (what is legal and what is moral are rarely in sync), but the point isn't that "piracy" was a problem, the point is that what would now be called "piracy" by some vested parties is what allowed those parties to have a stake in the first place! Without IP with which build upon, today's music, movie and patent industries would be woefully devoid of anything to sell. The funny thing about IP is that it's both an input and an output of the same system: the human mind. What mattered to the founding fathers was providing a mechanism that would capitalize best on that limited resource (creativity) for the good of society. Creators (hopefully the beneficiary of IPR, but this this is less and less the case in America's "IP Industry") require three things in order to create:

It's unintuitive, but these three things are often at odds. The requirement of IP to work from seems odd at first glance, but if one considers how much is really new in this world (and not an extension or addition to someone else's efforts), the requirement comes into focus. It's simply not possible to expect creators to work without raw material for their creativity. If the tarrif for using this input is too high, we can reasonably expect creators to simply leave the business of creating (perhaps good for incumbents, but demonstrably bad for any society that values progress). But in addition to needing reasonable inputs to production (like any industry), creators of IP also need to receive some way of making their way in the world. If a creator cannot expect to be reasonably compensated for his/her work, we can expect that person to seek another vocation. But payment must never become a dole. If a creator can expect to be paid in perpetuity for some work, then incentive to create is reduced and we can also expect the artist/inventor to likewise stop creating, thereby reducing the amount of good that their creativity does towards the betterment society. It is in the attempt to strike balance between these pressures where today's heated debates arise.

The western nations now flexing economic muscle to force adoption of IPR have seen their own IPR balance come into (and subsequently go out of) balance only recently. It's therefore a precarious position for them to attempt to foist restrictions on the rest of the world which are, by some measures, untested. America has seen an explosion and perversion of intellectual property rights in the past half century the likes of which history has never seen. The recent indentured servitude of artists (as they are legally and systemically stripped of IP which they create) combined with overly strong protection of "property" which truthfully belongs in the public domain has created a situation where oligopolists wield control not only over inputs to culture, but also conspire to buy up and enslave it's future (and by extension, what gets said in that culture). Is this system truly such a good model for the rest of the world?

What then are developing to nations do?

I assert that developing nations, left to their own devices, will come by suitable IP arrangements organically, as the western world has (by it's own declaration). The word "suitable" here is intentionally vague, as the needs of each of these countries WILL change over time. As an "IP advantage" allows a poor country to become better able to compete in the world stage, they will become less poor and will amend their IP requirements to allow them to better preserve what will hopefully become a burgeoning creative culture in their state. What is not acceptable is sitting idly by while elements in western society that value only increased profit cut off the air supply of developing nations with respect to IP. The only way to help a poor nation work in the world community effectively is to help them become something other than poor, and IP restrictions do not aid in this process. In the same way that we should tolerate IP restrictions in our own countries only because they increase the public good, we should provide the same leeway to judge the balance between the tensions of IP to each nation in turn. IPR imperialism should be reviled in the same way that puppet governments (which were so often the instruments of abuse in centuries past) are now regarded as expensive failures. While the short-term benefit may seem alluring, the exploitive nature of such a relationship should be enough to clobber such policies. There is very real risk that the message of the west will soon become "democracy and self rule, unless it threatens our profit motive".

It is squarely up to the "developed" world to see that the development of the rest of the world process proceeds unhindered by external greed and monopoly (there's plenty of those things in the developing nations themselves, thank you very much). I wish I could say I have hope that neuvo imperialism can be avoided, but we (the western nations) wield the big sticks, and the world marches to our beat. What's disturbing about this state of affairs is that the DMCA and continued march of Mickey Mouse Preservation acts through congress don't lend themselves to an optimistic outlook about WHAT we will foist upon the rest of the world. Our best hope of avoiding a travesty in the world at large is by combating the forces at home that have gotten our own house so out of order. In that effort I have more hope.