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Intellectual Property | Stealing our ideas and banning creativity
If you have ever had an idea, contrived an invention to better the world, Modern concepts of ownership of intellectual property are abstractions devised by the rich for the rich. They are inordinately expensive. The complex and Machiavellian world of intellectual property (IP) significantly increases the costs and complexity of bringing ideas into the market. If you do succeed in putting your IP on the map you are one of three things; you are very, very lucky; you are a driven, type-A personality, or you sold your soul to the system. We are presently being assailed by a war on piracy of IP ; don’t buy pirated DVDs or computer programmes. Don’t download music off the internet. Don’t pirate software. It all fits neatly in with the parallel wars on drugs and terror –which are equal and sometimes intertwined failures. You can sell drugs if you own the pharmaceutical companies, tobacco companies or if you are a booze baron; quietly ignore the thousands of people you kill each year. You can spread terror if you own and control the most scary and powerful arsenal on earth. But don’t try to do it if you are a small time bit player. This little digression illustrates a crucial point; unless you control the resource you cannot enter the market. Similarly, unless you control IP regime you will not get through the door without being crushed. To illustrate these points I share with you some related stories. I know two brilliant musicians who have both been dreadfully ripped off by the self-same system that claims that piracy is theft. Where the system should have protected them, it allowed their music to be stolen by carpetbaggers. Sometimes it appears that the whole IP regime may be some Kafkaesque nightmare where light is dark and wrong is right. The first of these musicians plays music with Khoisan and African roots. He manufactures not only his own instruments of profound beauty and tonal subtlety but also writes and devises his own songs and music. He played his marimbas at the 1994 inauguration of President Mandela. This man made a CD of his own music, on his own instruments, at his own expense. He took it to some of the big names in music publishing and got the cold shoulder from them all; we’ll call you if anything happens, they said. Imagine his shock when a few years later, he was visiting a massive tourist shopping emporium and heard his music blaring forth! He wandered in, asked the manager what this music was and was shown a CD entitled “True Africa – the music of the Khoi and San,” or some such bunkum. The CD was all his own music; the whole CD was simply stolen, unedited. Slap it in a new package, rename it and Bob’s your auntie. Not only was the CD sold there, it was, and continues to be marketed around the country, mainly directed towards the tourist trade. What a rip off scam by the very same industry that cries foul at the drop of a hat. When he tried to claim royalties from his CD he was met by a wall of legal obstructionism and flimflam. He cannot afford a lawyer and the carpetbaggers know it. Not one cent has been paid to him to date. Then there is a more careful friend. She signed a contract with a well-known Irish music entrepreneur to make a CD using her considerable piano talents. She recorded a collection of songs written, played and sung by her. Despite her CD being played, distributed and widely sold around the world, she too awaits her first brass farthing. Both of these musicians have been royally fleeced. They have been as ripped off just as the composer of the iconic song, ‘The Lion Sleeps Tonight’, (originally known as ‘Mbube’), Solomon Linda was. He died in poverty and his family fought for years for his rights from Disney and others for the illegal use of his song for over 40 years. His family was eventually paid out in 2006 after a legal battle and embarrassing large corporations. Yet if you or I record one song off the radio, or dare to buy a pirated video, or use unlicensed software, we are branded as criminals. But just who are the criminals here? This looks a bit like the person stealing a loaf of bread being jailed while the white-collar criminals turn a neat profit. Like the drug user being jailed while those controlling the trade getting off Scot-free. Then there is the great story of Johnny Clegg, known in France as ‘le Zoulou Blanc’, the white Zulu. He recently went public with claims that the South African Broadcasting Corporation demanded payments of R15, 000 for him to be interviewed and for his music to be played. This is insane if local music is to compete against the march of US driven neo-imperialist globalisation. South African musicians continue to be ripped off by the broadcast industry for lack of payments for their materials on play lists in a continuing scandal. Even in the Congo musicians are treated better than this. Clearly the enforcement of copyright law works primarily to benefit corporate interests who could not give a toss about the small person who creates the very diversity of art and culture we all treasure so. If we allow our creativity to be stolen we are headed for a McWorld. What goes for music and art goes equally for the intellectual property of living things. The issue of genetically engineered foods and crops has enjoyed media prominence for the past decade. The topic remains highly polarised. One of the main complaints about GM crops is the fact that these crops are patented. They are effectively the first crops in the world owned by corporations. They are not sold but are rented to farmers. While GM products are ‘controlled’ by corporations, their owners simultaneously refuse to accept any responsibility whatsoever for any negative effects, even as they claim them to be safe and tested. Interesting. But more importantly, these patents on GM maize crops ignore any role that generations of farmers had in improving these crops; all that counts is the fact that these crops are GM. Benefits accrue to the corporations like Monsanto - which controls over 90% of global GM crops and which is now the biggest seed company in the world. Nothing trickles down to those who bred the parent crops. Again, the small person looses out. This is a bit like patenting a car when you have simply designed its wheels. In fact it is even worse than this. Mexican maize is being polluted by GM maize imported from the US. Under intellectual property law any maize that contains GM properties is owned by its patent holder. By polluting the maize of Central America, not only is the integrity of the source of all of the world’s wild maize germplasm threatened but there is a simultaneous loss of ownership by the very people who developed the maize over hundreds of generations and thousands of years. Monsanto stands to gain ownership of all maize in Central America by dint of genetic pollution. Is this not a case of growing profits nefariously? The people of Central America risk cultural persecution and the divestiture of their rights to their seed. Similarly the US Administration effectively banned the saving of any seed in Iraq, just as small farmers in developed nations are threatened by the deprivation of their rights to save seed as becomes inevitably polluted. Corporations have even gone so far as to patent Basmati Rice(®™!) and Black Pepper(®™!), to name just a few examples. Pharmaceutical corporations patent traditional cures such as Hoodia, as occurred in South Africa. Patents have even being sought on the very elements, the building blocks of everything, the stuff we are made of. Monsanto has even gone so far with its patented seed as to set up “pimp lines,” where farmers can inform on their neighbours who they think may be illegally saving GM seed. Some farmers have their farm ownership threatened by such actions; this has caused such fear amongst farmers that many have resigned themselves to buying GM seed in order to prevent being sued by this massive multinational and its huge legal office. African intellectuals such as Tewolde Berhan Gebre Egziabher have made powerful contributions to this debate through the formulation of a framework for the recognition of traditional rights, the so-called African model law for the protection of the rights of local communities, farmers and breeders and for the regulation of access to biological resources. Lets not forget how Bill Gates got rich; by making the computer program that most people use and then aggressively protecting his intellectual property. On the other hand open source software works very well, thank you. In fact Mr Gates got started on open source and then got a reputation in his early years for being tight fisted with ‘his’ adaptations and banning its use as it was proprietary. We all know where that led – to his being sued by the European competition tribunal in a case that continues to cook away across the Atlantic. If you or I try to market our good idea internationally there is every chance that a corporation, through an untraceable offshore entity, based in the Cayman Islands, Panama or some other financial haven, will steal our ideas, manufacture it in China and then flood the market with it, making a killing while destroying all value for its originator. There are numerous such cases both here in South Africa and internationally. Intellectual property is controlled by several legal organisations, two of which are especially relevant. The first is the World Intellectual Property Organisation (WIPO), an autonomous, United Nations based body that seeks international standardisation of the global management of intellectual property. The second and increasingly important organ is the World Trade Organisation (WTO) and its Trade Related Aspects of Intellectual Property Rights (TRIPS). TRIPS has been accused by many of promoting the rights of developed nations at the expense of developing nations. Because of the concerns around TRIPS and other IP governance, calls have been made for a major reform of the IP system. This originated from developing nations and was lodged by Argentina and Brazil in what is called the Geneva proposal, otherwise known as the "Proposal for the Establishment of a Development Agenda for WIPO." This proposal was supposedly broadly accepted by WIPO members but a meeting was called in Morocco in February 2005, where developed nations again excluded key members from the developing nations bloc. This has thrown deep doubt on the intentions of developed nations regarding essential reform of this important international organ. If WIPO and TRIPS are not reformed, not only will my musician friends and farmers in poor nations continue to be exploited but the inequality inherent in the world IP regime will further erode our commercial rights and hand them over to corporate ownership. Our present intellectual property system favours big nations over small; big corporations over the small people like you and I. We are presently at an important juncture in the realignment of international standards of intellectual property. If we are to stop the global commons and the fruit of our ideas from being pried from the hands of the people of this world, a concerted effort is required to protect the limited and diminishing IP rights of the common man. Only through reform of IP rulebook can we meaningfully dismantle the subterfuge and legal gambits. WIPO and TRIPS must change with the times or be forced to change by mass democratic opposition.
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