Tuesday, March 20, 2012



There is an ongoing and vigorous debate about the whole issue of intellectual property, copying and protection that I want to discuss.

There are many issues here, and I want to go back to the whole purpose of having protection mechanisms.

The idea behind patents and copyright is to encourage invention and original work by ensuring that other people cannot benefit others by copying who have not put in the effort to create the work (and who maybe do not have the talent or ability).

Or rather, it is to ensure that the originator can benefit, and hence can continue to produce other works and derive financial benefit from them.

And here perhaps we come immediately to the nub of the whole issue. Does it matter if other people benefit parasitically from my original work, providing that I can benefit from it myself?

It would be reasonable to suggest that it does not matter, providing that I can benefit in an amount that is appropriate to the work.

Now some might say that I should be able to benefit to the maximum amount possible, because that would enhance the incentive to produce further work, and ensure that I would not suffer if I was unable to continue to be creative.

At first sight this might seem reasonable, but there are a couple of points relating to this view. Firstly, it is (as much in life), ultimately about proportionality. If I produce a creative work that requires a great deal of effort and talent, it is fair that I should receive a commensurably large reward. A work that requires a small effort and little talent would seem not to deserve a large reward.

The difficulty comes with the other cases: work that requires little effort, but large talent, and that which requires large effort but little talent. How should these be rewarded?

The free market approach would suggest that great talent will be given great reward (if there is also great demand), but that great effort will not be so rewarded because it is easily provided by others.

And here we come up against a moral conundrum also at the heart of the issue.
Why should Paul McCartney be paid a million pounds for writing a song that takes him a few hours, when a teacher or nurse has to labour for a lifetime to earn less?

It is easy to say, “Well, that’s just the way it is”, and in a sense, that is so. But remember that the songwriter can only earn huge amounts because of two things. There exists a large market of willing consumers, and the cost of distributing copies to them is small.

Before recording was possible, musicians did not earn huge amounts. The great few did quite well, because of support from the rich, but there was not the same opportunity to tap mass markets at low cost.

We are left with the question, what is an appropriate reward for these works? The standard reply is that is impossible for people to agree on the amount, so it must be left to market forces to decide.

Now when it is possible, as it now is, to copy digital works at almost zero cost, and in large numbers, the issue becomes confused. It is possible to argue that the ‘free market’ has become exactly that – copies available free, because the cost is also free. The only obstacle to this happening is the protection of intellectual property rights.

The problem is, though, that the solution is rather one sided. Prices (the financial reward) are effectively controlled by the rights, and there is a gulf between the protected price and the free market price. Which is why rampant copying exists in the internet, and by DVD copying in some parts of the world.

The world is changing rapidly, and existing business models are often past their sell by date. Price structures for digital media are still based on the pre digital age. Adjustment can be painful, but one conclusion that is impossible to avoid is that end user prices for digital media have been kept too high.

The industry has been slow to adapt, and has sought to fight rather than embrace the digital revolution. The more enlightened have realised that a certain amount of free distribution by copying is in itself a form of marketing, and can actually increase physical media sales rather than undermine them.

I now want to move on to the issue of patents. These exist for much the same reason as copyright, to protect those responsible for innovative methods of creating new products.

Again, there needs to be appropriate protection without providing a guarantee of excessive rewards available through digital copying and the mass world market.

The time period is a key issue in all these right protections. Some of them have increased, at a time when the world is moving faster, product lead times are reducing, and market windows are narrowing. This seems illogical, to say the least.

I really see no reason why the grandchildren of an author should be able to benefit from works he wrote before they were born (I write as the son of an author - I don't feel I have the right to his work long after his death).

The whole idea of software patents seems to be dubious to me. I worked in the software industry for many years. Most, maybe all, software is based on the ideas of previous work. Much is based on algorithms that have their roots in history. Nobody has suggested (so far) that you should be able to patent a mathematical theorem, but there can be a thin line between that and a software program. There is very little in the software world that is truly of ground breaking originality. If there is, it is likely to have come from some research department rather than a commercial software company.

It is sometimes suggested that, if you could not patent software, that it would make new software development unprofitable. That is nonsense. Somehow I do not see Apple ceasing to bring out new versions of software even if they could not patent any – same goes for Microsoft.

It is argued that small innovative companies that produce new software products would no longer do so without patent protection. Again, I simply do not believe it. A new innovative internet company can be born, thrive, and sell itself to Google for a million dollars in a very short space of time. Patent protection, in any case, will often not protect these small companies, because the legal department of the giants can tie them up until it ceases to be valuable.

In fact, I strongly believe that software patents do more harm than good, and simply should not be allowed.

The whole issue of I.P. rights should be greatly simplified and reduced. Rights should provide appropriate reward, but not guarantee excessive rewards provided by technology and mass markets. The time period for any such rights should be severely restricted
to reflect the realities of today’s world – say one year (but I’ll take a second opinion).

Technology is rapidly driving down the cost of products, and any rights provided have to reflect that. Rights for artistic works, too, have to be limited. I have nothing against J.K. Rowling, but see no reason why she should have an absolute right to be rewarded with hundreds of millions, however talented she may be (she does, thankfully, recycle some of those rewards through charities).

A short protection period, together with sensible pricing, should lead to a reduction in free copying, and an ability to reap reasonable reward. I do not believe that artists will cease to exist if they cannot hope to achieve massive financial success – most are not going to anyway. Art is driven by emotional need more that finance.

A combination of sensible pricing by media companies, and a reduction of the rights business, should ensure a sensible approach to the whole issue in times to come.

Dream on.

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