Yet Another View of Copyright

A software engineer says weak copyright will destroy fair use:

A debate has gathered over the importance of copyright protection in developing nations. That debate was recently stoked by the Commission on Intellectual Property Rights (CIPR), a UK organization which concentrates on the integration of intellectual property rights into development policy.

In a recent study, the group advocated a more lax approach to international copyright rules than advocated by TRIPS or WIPO. The argument centers around the notion that strict adherence denies copyright-poor third world nations access to rich world technology information. Without proper access to books, technology, and software, the “knowledge gap” will widen, sentencing the third world to generations of poverty and perpetuating a rich/poor divide that leads to conflict. As the CIPR noted:

there are also developing countries who have provided copyright protection as members of the Berne Convention for decades (such as Benin or Chad which joined in 1971) and have not seen significant increases in their national copyright-based industries or in the level of copyright-protected works being created by their people.

However, I think such arguments get a bit ahead of events on the grounds. Copyrighted material (that is, of the technological sort) is the product of a knowledge economy, and a knowledge economy is built on things like universal literacy, proper science education, the technological tools and infrastructure people need to express their innate creativity, and a level of affluence capable of providing for these things. So long as most in poor nations lack clean drinking water, solid homes, electricity, and decent medical care, they won’t have the foundation upon which to build a knowledge economy. The CIPR and others worry about a potential economy that is years beyond the present day capacity of most third world nations.

What third world nations need most is economic development. Pursuant to this, the first order of business should be to deal with structural issues that hinder development. The greatest hindrance is the lack of an integrated property system to which everyone has access. Legally defensible property rights are essential to the process of capital creation, in that property can be used as collateral on loans to grow a small business. Furthermore, incorporation must be within easy reach of normal citizens. Legal companies can take advantage of official distribution channels and grow their businesses internationally, something illegal companies cannot do.

….Information is essential to the advancement of third world nations. However, that doesn’t mean the stated policy should be to encourage a weakening of copyright protection. As my quote from de Soto shows, third world nations find the information they need when they need or want it. Perhaps that information isn’t always acquired in a strictly legal sense. However, the value of official adherence to copyright protection is to discourage casual copying, not to deny those who genuinely need access to information.

Weakening that official adherence will just ensure that producers of copyrighted material will find more ironclad ways to protect those rights.

In other words, companies will increasingly turn to “technology-based protection, in the form of encryption and anti-circumvention measures.” That, my friend, will be the end of “fair use.”

A fascinating perspective on this commentary from LA lawyer Joshua Wattles:

Very interesting to see John Carroll, “a software engineer …….. [who] specializes in the design and development of distributed systems using Java and .Net.” give his thoughts to the issue of intellectual property protection in “developing” countries.

His views would make even more sense if there were a reliable system in place to permit copyright owners in the developed world to grant use rights to developing countries at no charge and if the major copyright owners in fact did so. I don’t know of WIPO having such a system in use at necessary levels of participation. TRIPS and the WTO (not WIPO) encourage a world-wide integrated economy with as few restrictions as possible on the transfer of goods. Sounds compatible, except that it has become increasingly difficult to enforce territorial restrictions. In fact, specifically in the technology arena in which Mr. Carroll lives, territorial restrictions are near impossible without the intervention of government controls of a kind we would all (I hope) find objectionable.

What surprised me was what he didn’t say in this commentary. There is a possibility that by combining these elements: (a) the World Wide Web or its equivalents as a distribution method; (b) digitization of much of the copyrighted material a developing country might wish to use for education, industry and practical applications; and (c) the continuing efficiencies and cost reductions in providing the technology to access these materials – -developing countries could leap-frog the need to have the kind of infrastructure Mr. Carroll suggests is necessary to their development of indigenous copyrighted materials and to their participation in the “knowledge economy.”

I hope that affluence (one of Carroll’s posited predicates) is not a requirement for that development and participation. Certainly mass poverty, starvation and seemingly endless rounds of genocidal tribal and religious warfare will likely preclude the creation of works – – but they also preclude the meaningful use of works. A developing country not in massive crisis need not be affluent to make very significant contributions to world intellectual property beyond the cultural contributions of all peoples. And a developing country with unfettered access to the intellectual property of the developed world will, I would expect as an axiom, be able to contribute more – – and use more.

Its the “use” that gets in the way of the purists from doing the right thing in these circumstances. To my mind, the “right” thing is to give these countries the access they need and not sweat the details. This statement from Carroll’s piece is completely inaccurate:

“Second, by refusing to protect copyrighted material, third world nations tell their citizens not to expect to have to pay for such material. This makes life much harder for domestic producers of copyrighted material. Local producers essentially price themselves out of the market. As an example, the US in the 1800’s protected domestic authors copyright even as they ignored international ones. This resulted in a dearth of American authors, as they were forced to compete with an influx of cheap copies of British works. Imported works were “good enough,” and so there was less incentive for Americans to pay high prices for domestically produced content.”

First, the use of intellectual property without compensation to the overseas owner in America was hardly limited to story books. It covered farming, industry, religious, political, and scientific fields as well as purely cultural ones. The American, non-cultural, intellectual property contributions in the 1800’s were nothing short of remarkable, challenging the entire “knowledge economy” of Europe, if not completely decimating whole parts of it. I would argue its cultural contributions in the period were no less significant though non-traditional. Second, as an entirely immigrant culture, when taking a rare culture break in the 1800’s Americans wanted their home-grown stuff – – which happened to be stuff from somewhere other than the United States – – such as the Polka’s Mr. Kay loves so well. Third, Americans were really busy doing other things. Mark Twain was a rare and very special artist and not the last in the American cultural tradition of requiring that its artists come from working, practical roots rather than working at their art while subsidized by Popes or royalty.

Can anyone with a straight face argue to the leader of a developing country that they should pay full freight for medical textbooks, computer programs or texts on irrigation systems and biotechnological defenses to crop disease? Could anyone then with a straight face argue the need to pay for bootleg films or music? Should such leaders really spend their time negotiating use terms with copyright owners at “reduced” rates (negotiations in which they are forced to beg for relief as if they have done something wrong to be in the position they find themselves)? Can a copyright owner reconcile a demand for local enforcement by a developing country with the owner’s own uses for that country as a cheap manufacturer or as a source for under-market raw materials?

I would encourage people who can affect the policy of copyright owners to not make the mistakes of patent drug owners. Back-off. Give a free license without demand. Block tans-shipment from these countries of bootleg goods at the point of entry if you need to. Treat developing countries with respect. Don’t insult them with offers they shouldn’t take or demands they should not be forced to accede to. Help them develop. And don’t rewrite your own history to pretend that you didn’t need the same help once upon a time.