I got into an “uninformed” debate yesterday at work about Intellectual Property (IP) issues. I say uninformed, because I was just that, however after a little reading I have found that I my initial premise was correct: that IP rights are a relatively new concept in society. My other statement, not very well considered, was that we’d be better off if we did away with the concept of IP entirely. To find a reasonable basis for that contention I knew I had to do some investigation. We had started talking primarily about musicians and their relationship to the recording industry but the discussion also touched on the rights of other kinds of “content creators” such as authors as well as inventors and their inventors.

I’ve found that to explore the complex issue of IP, I had to learn about how we ended up with what exists today in the US. The history of patent and copyright law necessarily begins with the introduction of the printing press because it was only after the introduction of this device that copyright protection law began to be crafted. The printing press was not invented but rathar was greatly improved upon by Johannes Gutenburg around 1450 in Mainz, Germany.

His version of the device made a large number of copies (about 300 per day) of printed matter possible really for the first time. One of the first, and most famous works reproduced in this fashion was the Gutenburg or “42-line” Bible, but Gutenburg and his business partner, Johann Fust also printed an indulgence to the King of Cyprus for the pope which I thought was pretty funny. The authors of the bible were by that time long dead and unable to claim royalties on this first printing. Had Gutenburg only known what legal conundrums he was about to create, he would likely have been quite happy about this fact. Interestingly, Gutenburg pretty quickly lost all of the printing equipment to Fust in a lawsuit Fust brought when Gutenburg didn’t pay up promptly (Fust had put up most of the capital for the project). Fust went on to print a mess of stuff with his son in law with the equipment. Printing presses that operated under Gutenburg’s method quickly proliferated across Europe.

As a quick aside, printing is far older than the Gutenburg press, the first “printed” book thought to be the “Diamond Sutra” printed in China in 868CE. Gutenburg’s contraption was not the first time “moveable type” was used either. In about 1045, a Chinese printer named Bi Sheng used clay forms in a similar fashion, but since the Chinese language had so many different characters, the system was difficult to use and quickly fell into disuse. Printing in East Asia was mainly restricted to copies of wood-cut blocks (Block Printing) of illustrations after that while in Europe until Gutenburg, books were copied by Monks by hand. There are many extant examples of this kind of work, but the circa 800AD Book of Kells of Ireland is my favourite.

According to the UK Patent office, it was not until the invention of the printing press that laws for copyright protection began to be crafted. Since most peoples were illiterate anyway, the immediate need for intricate legislation was not great. In England, most early disputes of copyright were settled by English Common Law. The Licensing Act of 1662 in England sought to protect printers by establishing a registry of books, but interestingly didn’t offer any protection for authors of books being printed. Understandably perhaps, this Act was short-lived. In 1710, the Statute of Anne became the first Copyright Act in the world to introduce the concepts of author as owner of copyright and a fixed term of protection for published works.

Government protection for authors and inventors is seen as a component of the philosophy of classical liberalism which eventually founded the basis of US government. The basic tenents of this philosophy were: 1) an ethical emphasis on the individual as a rights-bearer prior to the existence of any state, community, or society, 2) the support of the right of property carried to its economic conclusion, a free-market system, 3) the desire for a limited constitutional government to protect individuals’ rights from others and from its own expansion, and 4) the universal (global and ahistorical) applicability of these above convictions. These concepts became codified in the US Constitution in 1787. According to Article I, Section 8, Clause 8 of the U.S. Constitution, “the Congress shall have power . . . 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.” Since that time, the specifics of copyright and patent have been argued and modified many times in the US courts. An interesting note is that lawyers of the 18th century apparently referred to patents and copyrights as “monopolies”. I thought it was generally accepted that monopolies stifle creative invention, which is why we had anti-trust laws.

Intellectual property rights issues became more of a national concern as the US economy moved further away from it’s traditional agrarian base and into an industrial one in the late 1800s. A nation of farmers had no pressing economic need to protect the interests of an author of literature, and certainly they cared even less about protecting the author if he was not an American. Charles Dickens found this out as he fought an international legal battle to keep American publishers from copying his work and redistributing it without his approval. As our populace became more literate, the romantic vision of the author became more deeply rooted in our popular culture. As industrialization rose, the mystique of the inventor became rooted in American culture and tied to the “American dream” of entrepreneurial success. Patent and Copyright law grew in proportion to the importance of industry and information in the US economy. It is the contention of some that those who benefit from these protections lobby most heavily to strengthen them, while those who might benefit from a reduction in the protections (consumers) are typically silent on the issue which has led to a proliferation of IP laws as they become applied to any and all matters of business.

The original patent laws have been extended over the last century to include a wide array of items. Plants were once considered a product of nature and thus, unpatentable. The Plant Patent Act of 1930 made new varieties of plants patentable. Shortly after the second World War, surgical procedures were made patentable. Software programs, several decades older than the personal computer, were originally considered “mathematical algoriths” and thus unpatentable. In 1981, the Supreme Court altered the thinking and an enormous surge in software patent applications ensued.

Now that duplication or copying of information has moved into the digital realm and includes more types of content, can IP laws originally created to balance the rights of authors and printing shops with the rights of the consuming public in the 1800s apply in any meaningful way? Todays information content is dynamic and searchable. The content may change from day to day or may be the compilation of the several authors in disparate parts of the world who have never met nor discussed copyright of the material they generate. They may even reside in countrys whose IP laws differ. The early IP laws were developed when content was “bound to a physical substrate”, analog information written on paper or a sculpture in rock for instance. Physical property rights are based on the notion that an object cannot be in two places at once. Treating information like an object may not be appropriate. As George Barnard Shaw said, “If you have an apple and I have an apple and we exchange apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas.”

The original intent of IP law was to protect the publisher. The rights of authors were only a secondary concern and certainly not as well funded in the lobby process. The new digital world of the internet has created an imbalance in the traditional IP melieu by separating information from a physical object, but it has also balanced the playing field in a strange way. It has removed the barriers to entry into the publishing field. Now anyone can become a publisher without the prohibitive costs of printing machines and maintaining brick and mortar facilities for storage of media. If everyone is a publisher and a consumer at the same time, it shouldn’t be long before IP laws are again modified to balance the interests of both.

Which leads to the next big investigation area, the 1998 Digital Millennium Copyright Act or DMCA. This piece of legislation was intended to address some of the perceived imbalances that the information revolution created. But the Act, an early attempt to address the new technologies may not be that well considered, and as some senators recently pointed out it may have granted more information gathering power to the recording industry (RIAA) than the US department of justice has. Sen Sam Brownback (R-KS) referring to the recording industrys recent subpoena for the names of 1600 alleged file sharers from their ISPs “…questioned why the RIAA and other copyright holders should be able to get a subpoena without a judge’s approval when Justice Department investigators generally need to go to a judge to subpoena terrorist suspects.”

Although I really have only touched the surface of the issue, there seems to be something to be said for both sides. To those who say that eliminating IP would stifle creativity, I disagree. The creative spirit is a natural human urge, it will continue without such protections as it did for millenia before such protections existed. However, it seems equally natural to offer some limited protections to authors, musicians, programmers and inventors to ensure they do not starve before they are able to come up with their next great idea.

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