Beatriz Busaniche

Every April 26th The World Intellectual Property Organization invites us to think about how important it is to protect Intellectual property. This organization, a member of the UN International System, aims to protect Intellectual property as a means to promote creativity and innovation. To do so, they administrate around 24 different treaties that compel its members to promote monopolies on intangible goods like patents, trade marks, copyrights and related rights, and so on. One of the calls on IP day is to think about how good it is to respect these monopolies: without them, they state, we would not have arts, creativity, technology or innovation.

There are some other organizations around the world that share that same WIPO view. Everytime they find us in a cinema, Hollywood and the entertainment industry try to convince us that downloading movies is somehow like stealing a bag or a car, or something even worse. The Recording Industry usually uses other means to do the same. They organize diferent kinds of prosecutions on the internet. In Europe, their lobby managed to get a directive passed preventing public libraries from lending books without charging a fee. In Argentina, Sadaic,Capif, Argentores and the other Authors’ Rights Collective Societies are trying to emulate that job.

An IP day for what?

It took at least 30 years for WIPO to figure out the need for an International IP day. During all this time, there was no need for such a “celebration”. Most people didn’t even know that there was something called Intellectual Property, and they had never had news about it. Copyright infringement conflicts were always between artists and editors; they were in fact, industrial issues. The same was true for patent holders and users. Nobody cared about these monopolies 40 years ago.

But around the year 2000, a growing number of people started deliberately ignoring copyright. Honest people, who certainly wouldn’t steal a bag or a car, share music, videos and films with no remorse at all. The reason for this change is obvious. We live now in a context where production and sharing of cultural goods is cheap and easy. We live now in a time when we have a universal copy machine, accesible to almost all of us, that is being used by millions of people: the internet.

In fact, this free distribution of copies of almost everything on the internet is just one part of the whole scenario where these monopolies WIPO celebrates today are all crashing down. It’s not just the fact that there are a lot of people doing something new (sharing files on the internet) but a lot more that is suddenly forbidden, things they’ve always done.. Sharing seeds, sharing songs and books, doing some kind of research or even lending books in public libraries is going illegal thanks to WIPO. Fields usually free from patents like genetics, mathematics and computer algorithms, business models, and agriculture are today being enclosed and appropiated by private hands who do not hesitate to fight for them aggressively in courts.

Accepting WIPO’s invitation to think about these issues and how they impact our lives makes us think about different stories, some of them really good examples of one of most important struggles of our time: the future of knowledge in the 21st century.

Nature as patent infringer

Let’s start with Percy Schmeiser’s story, a farmer from Canada, whose business for 40 years was the growing of canola. During most of his life, Percy saved part of his harvest for the next year’s cycle. That’s the way farmers do it. That’s the way they’ve worked for millions of years. And that’s the way around 1400 million farmers around the world do it today.

One day, Monsanto executives found out that Percy’s fields were contaminated with the Roundup Ready gene. His canola had that gene owned by Monsanto. Percy had never planted transgenic plants nor signed any agreement with Monsanto. But nature, ignorant as it is of patents law, did its job and mixed Percy’s canola with transgenic canola from a neighbouring field.

Of course Monsanto sued Percy. That wouldn’t be unusual. As a matter of fact, judges are full of absurd demands all the time. The amazing part of this story is that Percy was found guilty and condemned to pay 400.000 dollars to Monsanto and to destroy his whole harvest. After years of appeals, Supreme court exempted him from paying, but kept the verdict as guilty.

The price of life

Another interesting story with anonymous actors is the one carried out by Indian Health authorities. India is a country where around 86% of the population live on less than 2 dollars a day. Indian Health authorities decided to approve the production of Glivec to treat more than 20,000 Indian people suffering cancer at a cost of around 150 Euros per month each. Again, the story goes to a trasnational corporation, owner of the patent on Glivec, Swiss labs Novartis. Novartis’ drug costs around 2000 euros per month for each patient. Swiss executives sued the Indian goverment to prevent the commercial use of the generic drugs.

This is not the only case we know. The same happened in Thailand and Brazil when they decided to compulsively licence the patent to produce Efavirenz, an HIV retroviral to fight against aids in these countries. These compulsive licenses are already recognized by the WTO and the Doha Declaration on Intellectual Property and Public health. Nonetheless, Merck Laboratories claimed that Brazil and Thailand were stealing their intellectual property rights.

The library: land of pirates!!

From the days of the Roman Empire, the role of public libraries has been to collect and catalog books to share them with the general public. Even so, European editors have decided to extend authors’ rights by their own hands, extending the common disclaimer saying “All rights reserved. No part of this publication may be reproduced [...]”. Now they have added a brand new clause saying “public lending of this book is forbidden”.

The idea behind this is that, even knowing that the library already paid for the book, every time a reader reads it, the editor loses a chance to sell it. They are not happy with getting money from each sold book, they want us to pay for every time we read. This story also includes the names of very famous European writters like José Saramago or Almudenas Grandes, who joined the public demostrations against library fees by hugging public libraries in Spain. They want to defend the social mission of libraries: sharing knowledge and spreading culture to all people, whether they can pay or not.

It’s time to come back to Argentina with another real story about copyrights. A few weeks ago, a police officer visited Profesor Horacio Potel’s home in Lanus, Buenos Aires. “You should know what you are doing, Profesor Potel” said the police, while checking his phone, address and computer archives. Potel is being sued by Argentine Book Chamber, on behalf of the French government, for maintaining two websites during the last 10 years. Derrida in Spanish and Heidegger in Spanish. Potel did that job for free, with no profit at all. He collaborated in the promotion of these philosophers’ works in Latin America by sharing texts, pictures, interviews, translations, and a lot of very useful information, especially for philosophy students all over the continent. On those sites, now offline, you could find texts and books that are not commercially available in Argentina nor other countries in Latin America, because we are not an atractive market for publishing them. Even so, Potel is now facing criminal charges which may send him to jail for 6 years.

Glass roof of fame

We cannot forget the story of several musicians like Leon Gieco, who does well for a living with the royalties of his songs and just asks “God” that people don’t copy them without paying. Leon is one of the authors that, together with Capif, repeats that for each copy, a musician dissapears. He’s also behind projects like “digital tax” in Argentina. On the other side of Atlantic Ocean, in Spain, Ignacio Scolar is a member of a very well known band whose first CD sold more than 10,000 copies. This numbers makes him one of the 1% of most succesful musicians in his country. Even so, Ignacio estimates that his revenues for author’s rights, after three years, is around 2,800 dollars. This case leads him and us to important questions: How many people would have listened to his music if he had shared it on the internet instead of selling it through the record label? How many people would have gone to his shows (which are his real business)? What happens with the rest, that 99% of not so succesful musicians that don’t even sell as much as he does?

A little bit further north, in the UK, Radiohead decided to publish their latest album “In Rainbows” througha website. They asked downloaders to pay whatever they considered fair for the album. There is a strong rumor that says that the donations gave Radiohead more money than what they’ve earned with their older albums. Even knowing that the average donation was less than the cost of a CD, they earned much more money this way, bystepping the intermediaries.

In fact, it’s already well documented by independent researchers that sharing files on the internet does not affect culture, but that it in fact increases wealth. Those are the results of independent research published last January by the Dutch government.

To jail for using what is yours

Many American citizens are adding more years to a potential sentence everytime they buy a DVD in Europe or Asia and try to watch it on their US computers. Original DVDs have regional encryption as we all already know. But what we do not know is that circumvention of that encryption is illegal in the States. This encryption was broken a long time ago, but that’s not the main problem. The problem is that writing programs to circumvent them and doing so is condemned by Digital Millenium Copyright Act, a law that criminalizes the act of programming such software.

Right now you might be thinking that these kind of laws are ridiculous and that they cannot be applied. And that is certainly true. But the problem with laws that nobody respects is that when applied, they could be used against certain people for other reasons. That’s what happened to professor dward Felten, from Princeton University, who received a cease and desist letter when he was about to do an independent auditory on Sequioa voting machines. They said that by doing so, he was in violation of DMCA, so they would sue him. Felten was in charge of investigating problems with voting machines in New Jersey Primary elections, in February 2008.

Patenting the stars and the sun

Marilynne Eichinger is the President of The SCience and Industry Museum in Oregon. She thought it was a great idea to promote didactic toys through the museum website, where people could also by them. The idea was really a good one and they were happy to do it until they received a letter fron SBC Intellectual Property asking them for royalties for the use of two of their patents. These patents covered a special sort of design in a website, which consisted of adding buttonss to the header of the site, each of them redirecting you to another part of the site. (If you don’t understand this description, just check a random website on the internet and you will find it). It may sound amazing, but it’s true. SBC has the monopoly on this kind of design of a website. Marilyne found a way to change their web site and finished the case with no major problems, but in a country where “selling through theInternet” is patented, it’s just a matter of time before there are more problems like this.

What do we want progress for if we cannot use it?

All these stories are just a short preview of a global struggle where lots of the musicians who do not want their songs to be copied cannot resist the temptation to download others, where editors and record labels use authors’ rights against the authors and sue their own clients, where farmers are compelled to destroy their harvest or where states are trying to prevent monopolies they are in fact granting by law. Patent offices are full of cases of patent violations in areas they could hardly understand and people fight for (and lose) rights on cells taken from their own bodies against corporations that have patents on them.

All of this in the name of an ideology that states that without monopolies nobody would do, create or invent anything. While artists and inventors around the world are thinking that could only be in the mind of someone who has never created anything.

Intellectual property is a collage of legal systems, each different from the other, which are certainly hard to define altogether. The only thing we could say that is true for all of them is that they are out of control and that sometimes are in fact against their original goal: to promote creativity for public good. Today, Wipo invites us to think about intellectual property, and we invite everyone to think if these monopolies we gave our societies are really aiming towards public good or if it’s time to end this and start all over again.

Copyright © 2009.
Beatriz Busaniche / Federico Heinz. Vía Libre Foundation.
Translation: Beatriz Busaniche.
Verbatim copying and distribution of this entire article are permitted worldwide, without royalty, in any medium, provided this notice is preserved.
The original version is available in Spanish at http://www.vialibre.org.ar/2009/04/26/%C2%BFque-se-celebra-en-el-dia-mundial-de-la-propiedad-intelectual/