Posted tagged ‘intellectual property’

Who Owns Science?

December 18, 2009

Via the P2P Foundation blog, I ran across some impassioned back and forth over the issue of IP in the realm of scientific research. The clash begins with a November 2009 manifesto published by the University of Manchester’s Institute for Science Ethics and Innovation (ISEI), in tandem with the Brooks World Poverty Institute

Entitled Who Owns Science?: The Manchester Manifesto [PDF], the report takes as its underlying platform the argument that the core purpose of scientific innovation is (or should be) to serve the public good and from that perspective, lays out an extensive series of particular points regarding current systems of IP as it relates to scientific research and innovation and in doing so reaches the conclusion that,

the dominant existing model of innovation, while serving some necessary purposes for the current operation of innovation, also impedes achievement of core scientific goals in a number of ways. In many cases it restricts access to scientific knowledge and products, thereby limiting the public benefits of science; it can restrict the flow of information, thereby inhibiting the progress of science; and it may hinder innovation through the costly and
complicated nature of the system. Limited improvements may be achieved through modification of the current IP system, but consideration of alternative models is urgently required.

The London-based Chartered Institute of Patent Attorneys (CIPA) immediately and unsurprisingly struck back at the report (again, this funny collective/private tightrope walk of the professional association). In my opinion, their three most important assertions are these:

– Patents can’t be used to prevent a product coming onto the market – if demand for a product is not met on ‘reasonable terms’ then, subject to certain safeguards, anyone can apply to the IPO for a compulsory licence under the patent. The competition authorities can also take action if patents are abused.
– Patents do not prevent universities from carrying out research – acts done for ‘experimental purposes’ don’t infringe.
[…]
– The alternative to patenting university research is that big business would get a free ride – they could use the work of universities to make profits for themselves.

In response, ISEI points out the employment of IP law to prevent the distribution of generic drugs as well as the fact that the blurred lines between academic reseach and “pre-commercial” development of scientific products within universities makes the boundaries of protected reseach uncles. Further, they argue that they are not seeking the abolition of IP altogether, but rather “to bring [IP] far more into line with the public interest – and indeed with the interests of the goose that lays the golden eggs and creates the discovery on which not only the IP Law industry, but civilization relies, namely science and technology research.”

They also very successfully create a class intervention into CIPA’s association between IP profits and innovation:

The IP system is a tool for encouraging innovation for drugs for rich markets, but this mechanism does nothing about affordability, leading to the problems of access described. In the absence of a rich market, the IP tool is of no help in creating incentives to discover and manufacture drugs, leading to the problem of neglected diseases for which the “necessary investment to discover and manufacture” drugs is lacking.

More information on ISEI’s research into the question of who owns science can be found here.

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The Disintegrating Logic of Possession and Value in the Digital Age

December 16, 2009

This cutesy animation ties in to the ontological question of copies that Pete addressed in his previous post and the simplicity of its argument it makes me want to start laying out some fundamental logic of ownership, theft, and value.

Again, we’re looking at the real problem that exists in determinig the nature of copying and theft when it comes to digital media technologies. In particular, we must consider that the narrative of production, sale, use, and theft will be quite different when you attempt to apply it to different types of things.

If we’re talking about a purely physical object such as a bicycle, it’s easy to understand that the object is built and then used or exchanged among individuals. If the bicycle is stolen from you, you’ve gotta take the bus. The object’s value is thus constrained by possession.

When you start talking about analog media, this narrative starts to break down, because while you still need a physical object to realize the value, it is possible to make copies and convert media to different formats (e.g. taping a record) so that the use value – and perhaps even the exchange value – can be multiplied among various users, though the quality of the media may decline as generations of copies proliferate. Here, traditional notions of theft can still apply in the sense that you can’t listen to a record if somebody has stolen it from you, but there is another sense of theft that emerges wherein the act of copying makes it unnecessary for the copier to purchase an original work, thus denying the seller the revenue from that additional sale. Here, the physical possession of the record takes a back seat to the “intellectual property” contained on that record. In this instance, ownership becomes disconnected from possession and associated instead with commercial “rights.” The “theft” here is not of actual currency or products, but rather of the potential for additional revenue associated with the content contained in the sold object. This activity is referred to as “piracy,” though of course the pirates of the high seas were stealing physical, not intellectual property.

Things get even more complicated when we begin to look at digital media. First of all, the exchange of digital content from computer to computer pushes concerns over physical property even further to the sidelines in that authorized exchange often does not necessitate a physical object at all. In fact, the very act of using a piece of digital media usually involves making a copy of sorts (e.g., installing software on your computer). As digital technology all but obliterates the scarcity of any given piece of media, intellectual property-holders are attempting to compensate – and thus retain profits – by tightening restrictions on the traditional notions of ownership that would have applied either to the bicycle or to the record. That is, the use of individual pieces of media cease to be transferrable between users. When you buy a song on the iTunes store, you can’t loan it out to a friend for a week.

When you buy a record, you could reasonably state that you have purchased a copy of that content. When it comes to the iTunes story, you don’t even purchase a copy (copies being totally ubiquitous). Rather, you have perhaps bought access to certain content on a certain device, in some cases for a particular period of time.

Thus, as we transition from the bicycle to the record to the song on the iTunes Store, very basic notions of sale, ownership, and theft have to be reconsidered on a very fundamental level.

Fight for your rights? The problem with “copies.”

December 12, 2009

Today The New York Times published this story about “backlist titles,” books that were once top sellers in paper format, which may or may not be reissued today as ebooks. As publishers work to reformat and reissue such titles, the question of who owns the rights to reproduce these titles – authors or publishers – explodes back onto the scene. The fact that a change in format (from paper to electronic books for example) compels a new round of copyright battling is interesting, raising many questions: is the electronic version a separate “work” with a separate copyright as opposed to the paper version, or is the electronic version merely a copy of the paper work, which therefore puts the original copyright into play?

Behind this copyright question, a deeper question lurks: what is a copy? Obviously the copy is not identical to the original; a copy must be different, a unique object. But on the other hand, how different is too different? At what point does an object become so different from the original that it no longer counts as a copy? This ontological question about copies (or simulacra) and originals (a la Benjamin and Baudrillard), difference and repetition (a la Deleuze), etc., may seem cute or sophistic, but it could be a real thorn in the side of more practical, legal, ethical and political debates about the right to make copies. While I’m on a roll referencing European philosophers: might this problem of the copy be the Derridean lynch-pin which, when pulled out, will cause the whole copyright house of cards to deconstruct (self-destruct)? If we can’t define what a copy is, how can we tell if a copy has been made? How can we tell if an illegal copy has been made, or profited from?

The Party

July 28, 2009

reklamarkiv-logos-300x300

Continuing in the spirit of further broadening the scope of our inquiries here, I wanted to bring up the topic of the Pirate Party, which is probably the most institutional (especially in Europe) force of opposition to notions of intellectual property. First, a very brief history:

The Pirate Party originated in Sweden in 2006, where it (the Piratpartiet) is currently the third largest political party in terms of membership, with just under 50,000 members (most of whom are in the youngest demographic ranges). The Ung Pirat is the single largest political youth organization the country. In 2009, the Piratpartiet received enough votes to seat Christian Engstrom as one of Sweden’s 18 European Parliament members and are likely to seat a candidate in Sweden’s own parliament after the next election cycle (they narrowly missed in 2006).

Pirate Parties have now spread across Europe and are active, if not registered, in several other countries, including the United States.

According to the their website, the Piratpartiet’s chief platform is as follows:

The Pirate Party wants to fundamentally reform copyright law, get rid of the patent system, and ensure that citizens’ rights to privacy are respected. With this agenda, and only this, we are making a bid for representation in the European and Swedish parliaments.

Here is a video of Rickard Falkvinge, founder of the Piratpartiet, explaining the Party’s agenda vis a vis civil liberties and the histories of copyright and media technology:

For those of us more familiar with the American political context, here are some excerpts from the unregistered American Pirate Pary’s platform:

The idea that sharing anything online is piracy is absurd on its face. Actual piracy requires forceful and aggressive acts, committed against those who would keep a cargo safe from harm. The cargo in this case is the freedom to act. We would take it from those who jealously guard it for themselves and divide it amongst everyone in the country.

We are not willing to accept that file sharing should be banned (and will take steps, once we have party members in office, to ensure that any laws in this regard are adamantly opposed, since technology isn’t the problem, but rather education about what its proper use is). On the other hand, we do agree that there is a significant amount of wrong being done to our rights in the name of protecting those whose sole aim for over 50 years has been the control and manipulation of human minds.

All DRM and similar schemes do are to encourage people to find ways to prevent loss by circumvention. DRM is the key issue in the DMCA, and the chief reason that our population is now breaking the law en masse. DRM itself also inhibits the rights of artists to have their works experienced in as close to a live act as possible.

It’s worth noting both that this platform extends beyond explicit issues of file sharing and copyright to include government transparency, privacy rights, and a range of First Amendment issues. It’s also worth noting that the language on the website doesn’t attempt position the Party within mainstream American political dialogue (with a caveat that the Glenn Becks and Rush Limbaugh’s of the world make the boundaries of “mainstream dialogue” increasingly difficult to pinpoint). Even so, they are creating a space for public discourse around intellectual propery within the realm of electoral politics (as opposed, for instance, to academics).

Interestingly, Lawrence Lessig has expressed some criticism of the US Pirate Party, in that he believes that forwarding a discourse of “piracy” fuels the notion that p2p is synonymous with theft, which he believes will undermine the Free Culture movement.


While this may seem to be a semantic point, my expectation is that Lessig’s belief in a fundamental need for a copyright system in order to encourage the continued production of creative work creates some friction with the Pirate Party’s platform.

Overall, however, I think that it’s important for us to recogize the development of the Pirate Party (rather, Parties) as an important counter-narrative to the history of increasing enclosure that we so often cover. That is, we should be sure analyze movements of both restriction and resistance.

Peru, the Potato and Privatization

July 22, 2009

Among the more visible and globalized products of the Columbian Exchange is the potato. Originating in the Peruvian Andes and discovered by Westerners during Pizarro’s conquest of the Incas, the potato is now a truly global crop. What would Irish and Polish food be without potatoes? Just try to imagine our world without french fries.

In 2005, six indigenous communities in Peru made a groundbreaking agreement with the International Potato Center in Cusco, which said that the potato was “patented” by these indigenous Peruvians (see story here). Spokesman Alejandro Argumedo, associate director of the Association for Nature and Sustainable Development (ANDES), said:

No, this does not mean that these communities will now procure patents over these varieties of potato. These indigenous people are against patents. They represent a model of property that does not fit into their worldview. Indigenous people are used to exchanging and sharing information in open ways. But this means a legal agreement that no one else can claim intellectual property rights over their knowledge.

What interests me about this is the indigenous groups’ collective enclosure of the potato. In order to protect the potato (as a biological entity) from the likes of Monsanto (who would quickly turn it into a commodity or technology), they enclosed it. Here, then, is another example of the complexities and subtleties of enclosure: these indigenous Peruvians used enclosure to fight privatization. They collectively privatized the potato so that no one (person or coporation) could individually privatize it.

Genetically Modified Crops: Building a Primer

July 21, 2009

Having set ourselves up with an extremely broad field of play on this site, we have so far tended (unsurprisingly) to stick with a couple of sub-topics where we have firmer footing: copyright on cultural works, ownership of consumer electronic technologies, and to a lesser extent the global water crisis.

In an attempt to open up some additional material for discussion, then, I want to start exploring a privatization issue we have not yet covered as of yet: genetically modified crops. Because I don’t have much background on the subject, I think our first step should be to build a blog post primer – an annotated link dump where we can start to piece together some information on this issue and figure out how it might fit in with our broader concerns. The comments section here would be a great place for helpful and knowledgeable readers to suggest further reading.

GMO-producing companies have claimed that their work will provide a wide array of benefits over traditional seeds. From the Wikipedia article:

Transgenic plants have been engineered to possess several desirable traits, including resistance to pests, herbicides or harsh environmental conditions, improved product shelflife, and increased nutritional value. Since the first commercial cultivation of genetically modified plants in 1996, they have been modified to be tolerant to the herbicides glufosinate and glyphosate, to be resistant to virus damage as in Ringspot virus resistant GM papaya, grown in Hawaii, and to produce the Bt toxin, a potent insecticide.

Genetically modified sweet potatoes have been enhanced with protein and other nutrients, while golden rice, developed by the International Rice Research Institute, has been discussed as a possible cure for Vitamin A deficiency. In reality, customers would have to eat twelve bowls of rice a day in order to meet the recommended levels of Vitamin A. In January 2008, scientists altered a carrot so that it would produce calcium and become a possible cure for osteoporosis; however, people would need to eat 1.5 kilograms of carrots per day to reach the required amount of calcium.

A recent report from the Union of Concerned Scientists also disputes claims of increased crop yield through GMOs.

At the heart of the GM crop issue is agribusiness giant Monsanto. A 2008 piece in Vanity Fair outlines the dynamic between Monsanto and small farmers – to give you some indication, the piece’s title is “Monsanto’s Harvest of Fear.”

Among other things, Monsanto defines the specific uses to which its seeds – the product manifestations of its intellectual propery – can be used. Unauthorized use of these seeds, including using the crops produced to generate more seed for planting (“seed-saving”), violates Monsanto’s version of the End User License Agreement, called the Technology/Stewardship Agreement. By forbidding seed-saving, Monsanto intends to ensure that farmers must buy their seeds again every season in order to keep producing plants. This requirement seems to alter familiar understandings of ownership (i.e, once you purchase seeds, you own them and may do what you like with them) in the same way that EULA’s alter the legal ramifications of owning consumer electronics.

On officially-sanctioned Monsanto blog, Monsanto According to Monsanto, one of the company’s spokes-bloggers draws the comparison between seemusic piracy and the saving of patented seeds:

If you think about it, it’s pretty simple. The law is the law. When you sign an agreement, you must obey that agreement. Just like when I buy a CD of my favorite artist (which I do have quite the collection), I don’t burn it for friends. At the same time, I download quite a bit of songs to jam to on my iPod and I buy each and every one of those songs from iTunes.

Stilted tone aside, the argument shared by culture corporations and GM seed producers highlights the underlying issues of privatization that challenges traditional notions of ownership.

In an article for The African Executive, Teresa Anderson of the Gaia Foundation argues that the requirement to regularly re-purchase seed undermines the humanitarian benefits (lowering the horizon for agricultural production in poor regions:

The implications of patented GM seeds for African farmers should not be underestimated. Saved seed is the one resource that the poorest depend upon to carry them through the year. If they are forbidden to save their seed and must pay up to triple the costs of buying new seed each season, the costs of growing food will become prohibitive. The claims of lowered production costs do not stand up to scrutiny. Neither are the yields of GM crops sufficient to recover the costs.

One enforcement mechanism (other than lawsuits, which Monsanto regularly undertakes) for preventing the unauthorized use of proprietary organisms is Genetic Use Restriction Technology (GURT), which could be considered agribusiness’ answer to DRM. Wikipedia’s listing for GURT lists two principal methods for this sort of control.

V-GURT: This type of GURT produces sterile seeds [ed. often called “terminator seeds”] meaning that a farmer that had purchased seeds containing v-GURT technology could not save the seed from this crop for future planting. This would not have an immediate impact on the large number of primarily western farmers who use hybrid seeds, as they do not produce their own planting seeds, and instead buy specialized hybrid seeds from seed production companies. However, currently around 80 percent of farmers in both Brazil and Pakistan grow crops based on saved seeds from previous harvests.[2] Consequentially, resistance to the introduction of GURT technology into developing countries is strong.[2] The technology is restricted at the plant variety level – hence the term V-GURT. Manufacturers of genetically enhanced crops would use this technology to protect their products from unauthorised use.

T-GURT: A second type of GURT modifies a crop in such a way that the genetic enhancement engineered into the crop does not function until the crop plant is treated with a chemical that is sold by the biotechnology company. Farmers can save seeds for use each year. However, they do not get to use the enhanced trait in the crop unless they purchase the activator compound. The technology is restricted at the trait level – hence the term T-GURT.

So – seems as if we have plenty of common threads right from the start.

Amazon At It Again: The Case of the Vanishing Orwell

July 18, 2009

The New York Times business section has an interesting article today on the fact that many Kindle owners recently found that certain e-books they purchased had mysteriously vanished from their devices. Ironically, the most common disappeared texts were George Orwell’s 1984 and Animal Farm. It turns out that the company who uploaded copies of these texts for sale on Amazon’s e-book store did not actually have the rights to distribute the works, so after a complaint from the rights-holding publisher, Amazon decided to yank all of the offending copies.

As we have noted before, Amazon’s practice of remotely fiddling with purchased Kindle content is a hotbed of enclosure issues. In fact, this article contains a very succinct presentation of the digital content ownership issues at play:

Amazon’s published terms of service agreement for the Kindle does not appear to give the company the right to delete purchases after they have been made. It says Amazon grants customers the right to keep a “permanent copy of the applicable digital content.”

Retailers of physical goods cannot, of course, force their way into a customer’s home to take back a purchase, no matter how bootlegged it turns out to be. Yet Amazon appears to maintain a unique tether to the digital content it sells for the Kindle.

“It illustrates how few rights you have when you buy an e-book from Amazon,” said Bruce Schneier, chief security technology officer for British Telecom and an expert on computer security and commerce. “As a Kindle owner, I’m frustrated. I can’t lend people books and I can’t sell books that I’ve already read, and now it turns out that I can’t even count on still having my books tomorrow.”

Beyond these fundamental issues of ownership, there are two interesting addenda to this story:

1) A student who was reading 1984 for school lost not only the purchased text itself, but also all of his own annotations and notes that were attached to the e-book. That is, Amazon retains technological control not only of the content it sells, but also of the Kindle user’s original work created on the device.

2) The article notes that while the copyright for 1984 does not expire in the US until 2044, it has already expired in other countries (including Canada) and websites hosted in those countries already offer e-book versions for free. So, for the enterprising Kindle user who can load non-Amazon-sanctioned content onto their devices, avenues of digital copyfight resistance are open.