machine-envy

(originally published on openDemocracy)

On World Intellectual Property Day, Becky Hogge speaks to Cory Doctorow, who has been campaigning for reform at the World Intellectual Property Organisation for two years, about the strains put on the democratic process by the arrival of dissenting voices.

Today, 26 April 2005, is World Intellectual Property Day, a celebration of the power of the copyright, patent and trademark disciplines to foster creativity and innovation around the world. It is a day sponsored by the United Nations’ World Intellectual Property Organisation (Wipo), a UN organisation unlike any other. In the flock of the organisation with aspirations towards international democracy, yet funded by the big business of worldwide trademark and patent registration, Wipo’s plush Geneva headquarters have traditionally played host to lobbyists of corporate power, not champions of the developing world.

Why this should be so boils down to a simple equation – that copyright, patent and trademark law incentivise creators and therefore stimulate development. Now, technologists and their allies with a different vision of how Wipo should operate are challenging the logic of that equation. And in the face of such dissent, the democratic fabric of the institution is being stretched taut.

Cory Doctorow is one lobbyist who has been at the front line in Geneva for some time. Back in 1999, his fledgling technology company’s investors “freaked out” about a copyright-driven lawsuit filed against a company using a similar technology to his - Napster. As he faced growing pressure from his investors, Doctorow sought help from the Electronic Frontier Foundation (EFF), an advocacy organisation and impact litigation house that campaigns for the rights of technologists. He later left his company to work for EFF full time. His speciality is legislation on copyright, legislation that in his experience is often exploited in the drafting stages by lobbyists from incumbents on the market seeking to create a “permissions culture” for technologists and other innovators – in his words, “profoundly anti-competitive stuff”.

A different world

Two years ago, the EFF got a call from James Love, head of the Consumer Project on Technology and celebrated hero of access to medicine initiatives that saw big pharmaceutical players slope away from lawsuits against the South African government over the purchase of generic versions of patented retrovirals in the fight against HIV/Aids. Love had spent years at Wipo, mainly agitating for patent reform, and had noticed a vacuum of dissent against draft global copyright treaties. Delegates without a strong handle on the potential of new technologies, were, in the name of copyright, putting checks and balances on these technologies that would make valuable innovations illegal. The only lobbyists present were those representing the incumbent rightsholder and broadcasting groups. Could the EFF help?

“It’s a very different world working at Wipo”, says Doctorow,

“so when [Love] approached us the initial reaction from the people on staff was ‘how can we possibly make a difference here? We’re outgunned, we don’t know what’s going on, it’s diplomatic, we don’t know who to sue – all the stuff we’re good at we don’t know how to do here.’ But there were elements of history that resonated”

. At Wipo, just as in the various midnight meetings on broadcasters’ rights in the digital age the EFF had gradually been gaining access to in the United States, the democratic process was in danger of breaking down for lack of people speaking up for the other side: “The most egregious lies were being told about how the world worked and nobody was sticking their hand up and saying that’s not true.”Cory’s first job at Geneva was to step into negotiations over the Broadcast Treaty, a theatre of discourse aimed at updating a 1961 treaty in the light of the impending switch from analogue to digital. What he found was an audience of national delegates already held captive through five years of negotiation by lobbyists from rightsholder groups and incumbent broadcasters. New technologies were represented solely by webcasting businesses keen to sew up the market against future competition.

The arrival of dissenting voices at Wipo, where Doctorow has forged alliances with various intellectual property (IP) reform NGOs, has tested the democratic process. Their lobbying on such diverse tickets as international development, the safeguard of the public domain and the rights of archivists, says Doctorow, is viewed as “arriviste” – they are a “rabble” capable of swerving carefully planned negotiations off course when there was policy to make.

Delegates whose tentative grasp of the meanings of new technologies often came from close collaboration with incumbent lobbyists such as the National Association of Broadcasters suddenly found they were being asked to pick sides.

One of the more controversial activities of the IP-reform lobbyists since their arrival at Wipo, Doctorow remarks, has been the spontaneous publication on the web of impressionistic notes taken from the various negotiations through at-table blogging.

“Normally the way that Wipo transcripts are produced is there’s a six-month delay during which the secretariat’s notes are sanitised by circulation to all the members – ‘here’s what we’re gonna say you said, would you care to re-write it?’. And you end up with this kind of linen-draped version of the negotiation months after it happened. Whereas we go in and take collective notes which we publish twice a day. We are told that there are delegates who get phone calls in the afternoon about what we’ve posted about what they’ve said in the morning.”

Doctorow is puzzled at the reception of this practice: “They characterise that as an abuse of their hospitality because we’re telling tales. But it’s the UN, right? The idea that the UN proceeds in secret is the stuff of paranoid fantasy.”

Indeed. Last November, during the twelfth session of the standing committee of copyright and related rights, Doctorow found himself clinging on to the reins of reality after literature IP-reform NGOs had produced for the session was continually moved from the handout table to the wastepaper basket in the first-floor men’s toilets.

“This wasn’t flyers with skulls and crossbones on them saying you guys can all burn. This was thoughtful, well-informed, substantive comment on the process that we as observers have been invited to present. We ended up posting Rufus (Pollock, from the Campaign for Digital Rights). Rufus stood by the table for two days.”

Doctorow claims that further attempts to exclude the reformist argument from treaty discussions were made when Wipo “switched policy” on attendance leading up to talks on the Development Agenda earlier in April. The Development Agenda is the first piece of legislation to pass through Wipo that questions the direct link between strong intellectual-property protection and development, and had been directly facilitated by Doctorow and his allies. Whereas previously both ad hoc and permanent observers had been welcome at such talks, Wipo announced that only permanent observers could attend this meeting; thus excluding the majority of reformist NGOs, although not the EFF.

Whose democracy?

Doctorow and his partner NGOs’ message is perhaps a little too much for the delicate ears of Wipo, an organisation funded by the trademark and patent-registering business that until recently would never have given the appropriateness of that arrangement a second thought. The three aims of this year’s World Intellectual Property Day suggest Wipo’s continued belief that development comes from protection of intellectual property and that if you want more development, you need more protection. That core idea has now been challenged.

After a two-day conference in September 2004 a coalition of NGOs produced the Geneva Declaration on the Future of WIPO. Signed by high profile free software and copyleft advocates, access-to-medicine campaigners, library associations, academics, Nobel prize-winning scientists and development organisations such as Oxfam, the declaration demands that Wipo re-examine its ideas about the logical link between copyright, patent and trademark protection and the ultimate goal of its UN mandate: development.

Noting the emergence of other intellectual-property disciplines within which development has been shown to flourish, and condemning the anti-competitive advantage Wipo had bestowed on its most vocal lobbyists in the past, the Geneva Declaration has already provided a springboard to Argentina and Brazil from which to launch the Development Agenda.

These and other rebel delegates from the global south, who have identified an opportunity to swing the global intellectual-property agenda – so intricately linked to world trade – in their favour, have a tough battle ahead. Doctorow reveals the tensions at one meeting:

“There was a proposal to cancel the June meeting in favour of a series of regional meetings, which is widely understood to be a divide-and-conquer tactic. Brazil, Chile, Argentina, India…spoke out passionately against it and said ‘we block it, this is a consensus body, and without our consensus you can’t go forward with this’. And the chair put it to a vote, and they had a vote, and he said ‘well that’s democracy’. Their response was ‘what do you mean that’s democracy? We have a deliberative process, and the deliberative process is consensus oriented, there’s no consensus in this room’. The chair’s reply was that the consensus is on substance not on points of procedure.”

Cory Doctorow is confident that his and other NGOs’ activities will end up having a lasting, positive effect on Wipo’s engagement with the developing world. As with many geeks, there is idealism just underneath the earnestness. At the end of our interview he quotes Gandhi: “‘First they ignore you, then they laugh at you, then they fight you, then you win”.

(originally published on openDemocarcy)

The struggle over intellectual property is the concern of more than knowledge economy specialists, says Becky Hogge: it is a contest over freedom as well as technology.

Fights for freedom are not always played out centre-stage. Since 2003, a piece of European Union legislation with the misleadingly arcane title of the “EU Directive on Computer Implemented Innovation” has been slipping unobtrusively through the bureaucratic thickets of Brussels. It has attracted little attention beyond intellectual property (IP) specialists and activists. It is time the interest widened, for the scope of the directive goes to the heart of how knowledge will be produced, consumed, and disseminated in the 21st-century global economy.

The proposed legislation has the potential to lock away information – code – by extending the remit of patent law to cover any piece of code that makes a “significant technical contribution” to the field. The law would bring Europe closer to the United States’s highly promiscuous attitude towards software patents, although how close remains a subject of fierce debate.

Patents are state-granted monopolies designed to nurture technical, scientific and social progress by protecting the inventor’s incentive to invent. Those opposed to software patents in Europe argue that there is no evidence to show that patenting code would ensure such progress in this still young field. As the directive has crawled across the legislative undergrowth, pioneers of technological discovery and commentary – Tim Berners-Lee, Richard Stallman , Lawrence Lessig and Linus Torvalds, among others – have urged the EU to come down against pure software patents. Many of these voices come from the patent-friendly United States: they hope that if Europe agrees with them, the US will be forced to reconsider its position.

Will their hopes for Europe prove to be misplaced? A striking feature of the directive’s two-year journey – from consultation to committee room, lobbying to redraft – is that the two main European Union institutions involved have moved gradually further apart on the issue. The elected European Parliament has been revealed as a space where open debate on intellectual property issues can occur. There, high-profile lobbyists seek to influence legislators; cross-Europe small and medium enterprise (SME) groups bring their concerns; and representatives from accession countries such as Poland share their experience of how the software industry has bootstrapped their growing economies. The cumulative result of the debate has been significant checks and balances on the legislation.

By contrast, the unelected European Commission has emerged vulnerable to accusations of a culture of closed-door negotiations – favouring secretive, fast-tracked voting that reverses the parliament’s careful work by executive fiat.

The commission’s confirmation on 25 February that it would not reconsider the legislation, despite the recommendations of a three-tiered parliamentary vote, is only the most recent evidence that “Europe” too is a site of contest over the key question of our time: who owns knowledge?

The evidence

The question has been a live one long before it entered the deep entrails of the European Union’s legislative process. Since the commercial software industry emerged around 1990, technologists have argued that code is different from other inventions: it does not need protection by patents. In software creation, open standards – code as common knowledge – are the key to fermenting progress. To patent code is to add disabling and unnecessary burdens on software enterprise that can kill its potential in this crucial, formative stage.

These fifteen years (a shorter timespan than the average patent) have seen the birth and maturing of the World Wide Web, all thanks to a protocol known as Hypertext Transfer (http). Tim Berners-Lee, the man who conceived the code that embodies this protocol, did not patent it. Thus it became an open standard: anybody could use it to contribute new programmes designed to run on the web. And use it they did. To the extent that the multiplying, democratising life-forms of the web now challenge the dominance of corporate media and orthodox models of economic activity.

Software programming has a relatively low financial barrier to entry. It relies on the manipulation of mathematical algorithms between one man and his machine. Progress in the sector takes place in swift but discrete steps. Each step contributes something to the art of programming: each software programme builds on the last. It is this environment – accretive, open-ended and egalitarian – that has allowed rapid progress in the software industry to enhance the utility and connectivity of the computers people use in their daily lives.

In the patent-free environment, contributions to the common pool of programming knowledge come from all corners of the world, from the amateur hacker working until 4am in his bedroom to corporations leasing the most expensive real estate in Silicon Valley. Richard Stallman, founder of the Free Software Foundation, likens reading a piece of software code to walking around a city – the expert eye will recognise “architectural periods”, little stylistic ticks that identify a piece of recycled code with a particular time, even place.

Software patents take chunks of code out of this vast pool of shared knowledge and lock them down using IP law. United States case law already shows how companies can use such patents to claim ownership of code that had previously been regarded as an open standard. The effect is not simply to appropriate and centralise a shared knowledge resource, but to make it impossible to create a new programme without infringing the patent. Where software is concerned, patents obliterate progress.

Software and strong IP

Some leading architects of the software sector are quite explicit about this. Bill Gates set his stall out as early as 1991:

“The solution is patenting as much as we can. A future startup with no patents of its own will be forced to pay whatever price the giants choose to impose… Established companies have an interest in excluding future competitors.”

Companies who have followed Gates’s advice and established a forceful patent portfolio gain another benefit: by subjecting software code to strong-IP protection, they can get around the problem of infringing rival patents by licensing patents to competitors – often generating significant revenues in the process. Already, IBM earns considerable royalties from its patent portfolio in the US. Other major IT companies there have started cross-licensing patented code with rivals.

The logic is as clear as it is chilling. In effect, corporations use software patenting to secure a monopoly and discourage the entrepreneurial activity of start-ups. The result is to freeze, not foster, innovation – the very opposite of patent law’s original intention.

Moreover, as intellectual property law combines with the global shift towards a “knowledge economy”, the regressive effect of such lockdowns acquires a more explicitly political dimension. The application of strong IP law is a game only the big boys, with their dedicated legal teams, can play. Knowledge, once viewed as a commons, becomes a commodity – just like land or labour in an agricultural or industrial economy – whose owners ordain themselves the new economy’s ruling class.

This process is taking place in all areas of the economy. At the moment we still baulk at the idea of knowledge as someone’s out-and-out possession: witness the public disgust when patents prevent life-saving drugs from reaching the dying in Africa. With a little imagination, this reaction can be understood as a contemporary example of resistance to changes in economic reality.

If the shift towards knowledge as commodity is as inevitable as many – including, it would appear, the European Commission – believe, then the future looks bleak. We can look forward to an age of monopolies, where innovation is choked by vested interest and the dynamic economies that software and other innovators have helped create fall to rot.

An alternative vision: knowledge as infinite resource

The patent-free history of the software industry speaks volumes for its own situation: software programming can get along fine without patents, if only it is allowed to. But what about the rest of the knowledge industries? Are they to be condemned to the dystopian, even Stalinist vision outlined above? Perhaps not. A new, much more radical model of the knowledge economy is emerging. And by coincidence, it too has been seeded in the software programming tradition.

Over the same period that the Hypertext Transfer protocol was giving birth to the World Wide Web, a new school of programming was born: Open Source. Within Open Source even traditional copyright protection is reversed: programmers are compelled by a mechanism called “copyleft” to distribute their code freely, allowing others to copy it, modify it and integrate it into their programmes. Within the programming community code is shared without levy. Money comes in from outside the community, through the manufacture of hardware and through companies contracting for expertise, custom-design and support.

The theory behind Open Source is that the “more eyeballs” that are fixed on a problem or “bug” in a particular programme – ie the more people with access to edit the code – the quicker that bug gets fixed. The model has proved a success. Open Source has come to dominate the backend of internet technology (the humming Apache-run servers that currently power 68% of the web) and has been creeping onto the consumer market in the form of the Linux operating system and Mozilla Firefox web browser.

The success of Open Source underlines the fact that knowledge is a different sort of resource to labour or land. While these are finite resources, knowledge can be infinitely replicated, and never more easily than in the age of the internet. The only tragedy of this commons, it seems, would be to censor it using strong-IP law. Because, as Open Source has shown, a solid commons of knowledge fosters a solid knowledge economy around its edges.

Open Source software is providing an attractive metaphor for others in the knowledge industries faced with increasingly obtrusive patent and copyright law, although technologists themselves, wary of being labelled romantic, often shy away from this. The economic success of Open Source programming relies in part on the nature of the programming task itself, but it can provide a model of understanding the world, as more and more of everyday life is becoming reducible to data.

Following the success of the Sanger Institute’s open funding model in the race to annotate the human genome, question marks are beginning to appear over the direct linking of medical r&d to the balance sheets of Big-Pharma. Arguments are also rippling through the creative industries over the use and misuse of copyright law on the internet. And libraries, academies and archives are finally finding their voice over open access to knowledge.

The future of knowledge

The contest between a strong-IP and a commons model will define the character of the knowledge economy worldwide for a generation. In the current transition period, it is being played out in institutions at every level of governance – local, national, regional, global. Thus, the tension between parliament and commission of the European Union is just one example of a wider trend. In 2004, the World Intellectual Property Organisation (Wipo), a specialised agency of the United Nations, agreed to revisit its terms of reference and move away from exclusively promoting strong IP where technical cooperation might be more appropriate to the interests of the developing world. But more recently, Wipo’s announcement that it would invite only “permanent observers” to forthcoming talks will have the effect of excluding “ad hoc observers”, who mainly represented IP reformist associations in previous talks, in favour of observers dominated by rightsholder interests.

The knowledge economy increasingly touches every area of life – work and pleasure, professional and personal life – in every part of the world. It is vital that decisions over its future are made in a fair, accountable and democratic way. As agencies of governance recognise the value of knowledge as any kind of commons, muscular lobbyists for a strong-IP regime, keen to commodify knowledge for the new economy, will be drawn into the fray. These agencies must arm themselves with well-researched models of how knowledge performs in a commons environment. Software is a crucial part of this new landscape. The story of the EU Directive on Computer Implemented Innovation is closer to centre-stage than it appears.