Devil's Advocate: Rights to intellectual property? How absurd

The over-protection of intellectual property rights isn't given much airtime, even considering the rise of open source software. Martin Brampton, director at consultancy Black Sheep Research, this week questions the concept.

Intellectual property rights (IPR) are talked of a good deal. Unsurprisingly so, as we are told we live in an information society and that our future depends on the proper acknowledgment of IPR. Yet the argument is curiously one sided and we should be asking why this is.

Much of the talk comes from representatives of large companies that are owners of extensive IPR. It is true that if IPR continues to be extended as it has in the recent past then it will become a very important aspect of our lives. But we should be cautious about this happening. Since much of the argument takes place in the US reference is often made to the US constitution and the fact that it provides for some kind of exclusive right to the development of inventions.

Before we simply accept that, though, it is worth looking more carefully at what the founding fathers of the US actually had in mind. One thing they clearly thought was the granting of exclusive rights was a kind of state backed monopoly. They were extremely dubious about any such monopoly and so their enthusiasm for IPR was severely qualified. Their sole belief in IPR was that some limited protection would spur innovation.

Now this is an argument that has been taken up enthusiastically by IPR proponents. Yet, obvious as it seems, there is scarcely a shred of evidence for innovation being spurred by IPR legislation. Moreover, nobody is at all clear about isolating the act of creation. The huge volume of information that is in the public domain provides a vital backdrop for creative thought. Nobody makes inventions entirely out of the blue and the value of the public domain is diminished by every IPR granted.

Nor is it clear why only the first inventor of an idea should have extensive rights. Often it is unclear who was first. Did Newton or Leibniz invent the infinitesimal calculus? If an invention has been kept secret why should someone else who thinks up the same invention be prevented from exploiting it? And there is the additional problem that nobody can find a clear standard to define what may be patented. Factors of this kind suggest that we should be cautious of granting anything but very limited exclusivity.

Science and arts got off to good starts long before IPR had been invented. Shakespeare, Bach and Mozart were eminently creative without benefit of IPR. Statistics are hard to come by but anecdotal evidence from scientists suggests that greater use of IPR is stifling research, which formerly relied on the open publication of new material.

We should pay attention to the nature of their complaints. It is not only a matter of stifling information; IPR restrictions are actually making innovation harder. The more difficult it is to create anything that does not compromise someone else's IPR, the less it is possible to innovate. It seems that increasing protection for IPR works against not only the users of protected material but also against future creators.

We should also look at the track record of the excessively conservative IPR holders in the past. The movie industry fought tooth and nail to place restrictions on VCR units, believing that wholesale copying of television programmes would undermine their revenues. Fortunately for themselves, they lost. Now half their income comes from the sale and rental of video recordings. Who'd bet against a similar pattern of events flowing from Napster's offspring?

The exercise of IPR is liable to be oppressive to poor people or countries. It is liable to place unreasonable constraints on 'fair use'. It works against small providers who find it difficult to comply with costly protection schemes and are often excluded from the networks of cross licensing established by the large players. By and large, the advocates of extensive IPR are rich and powerful. Do they need more rights?

Next week, we move on to question the specific IT issues, such as the effect of IP on the internet and the distribution of software.