Issue Date: February 7, 2011
On Intellectual Property
Whether and how to protect intellectual property is a debate that spans centuries in the Western world. Now, cultural critic Lewis Hyde—author of “The Gift: How the Creative Spirit Transforms the World,” and “Trickster Makes This World: How Disruptive Imagination Creates Culture”—has written a book on intellectual property that purports to examine current practices in light of the principles the Founding Fathers espoused on copyright, and to a lesser extent patent. The work, “Common as Air: Revolution, Art, and Ownership,” is a frustratingly erudite review of historical fact and philosophical positions taken by Thomas Jefferson, James Madison, John Adams, and particularly Benjamin Franklin regarding protections given to creative and inventive works.
From these historical facts and the Founders’ ideas, Hyde advances the notion that there is a cultural commons—broadly defined as anything disclosed publicly—and that it must be protected from corporate interests circumscribing it to private uses. In support of his thesis, Hyde provides the reader with a prodigious explication of 18th-century thought on property, liberty, and, with regard to America, the independence of thought that presaged our ultimate political independence. This includes the English Statute of Anne establishing copyright and the Statute of Monopolies that restricted the royal prerogatives toward granting exclusive patent rights. Also discussed is the reaction, both in England by the Puritans and by their American relatives and like-minded countrymen, to imperial regulation of information dissemination, particularly restrictions on the press: suppression of publication of proceedings in Parliament and royal authorization of newspapers, for example.
Franklin’s views are specifically discussed at length, with regard to his vocation as a printer as well as his avocation as a scientist and inventor. The views of other Founders are cast in terms of the divide between public and private rights, and the “republican” idea that any initial grant of a private right must yield after a short time to a public benefit, analogous to the public rights-of-way to water courses, the seashore, and grazing land.
Unfortunately, rarely has such erudition been so thoroughly squandered. Hyde makes two fundamental errors, one historical and the other legal and philosophical, that undercut the force of his arguments. The first is the rather common conflation of the term “monopoly” as it was used in feudal and premodern times and how it has come to be used today. Monopolies, as disparaged by American patriots in the 18th century, were royal grants based not on creativity but favor. The monarch bestowed upon certain printers the right to publish works, especially works by ancient authors that had nothing to do with modern copyright—a right owned by authors of original, creative works. The practice of permitting authors to have rights in their own creations was the result of the Statute of Anne, as Hyde notes with approval. But his approval is based on the limited term of such copyright rather than the recognition that establishment of a copyright regime permitted, for the first time, control by an author of his or her work as opposed to the feudal tradition of authors dedicating—indeed, transferring ownership of—their work to an aristocratic patron.
Although more concerned with copyright, Hyde also voices reservations about patenting, recounting that Franklin refused patenting of his woodstove, putatively for philosophical reasons—that his work was “communal” or “collaborative,” building on the earlier work of others. Equally likely, of course, is that Franklin’s stove was built prior to the existence of U.S. patent law and that his refusal to patent had more to do with (and was consistent with) his disdain for a royal monopoly. This is not to say that Hyde does not recognize these aspects of the historical record, but to suggest that he discounts them in favor of explanations more consistent with his “commons” theme.
The second error Hyde makes is more disturbing, because throughout the book it is clear that he advocates—and argues that the Founders advocated—precisely the type of patent (and to a lesser extent, copyright) regime that is enshrined in our Constitution. This is a grant of exclusivity for a limited term, with inventions or copyrighted works devolving to the public domain thereafter. The sticking point is Hyde’s notion that ideas can be protected under patents or copyright, which is simply incorrect. Ideas are not patented, and neither are they copyrighted. Specific expressions of ideas are protected by copyright, but this right merely prevents a copyrighted work from being copied.
Because of this error, Hyde misses the most important distinction between what can and cannot be protected under U.S. patent and copyright laws. He bestows a large amount of his criticism of current law for imposing restrictions on ideas. But neither copyright nor patent laws restrict the free distribution of ideas; indeed, disclosure of the invention (by a written description in such “full, clear, concise, and exact terms as to enable any person skilled in the art to which it pertains, or with which it is most nearly connected, to make and use the same”) is a requirement for obtaining a patent. What’s more, U.S. patent law requires disclosure of the best mode known to the inventor, something that prevents a patentee from hiding the most important or advantageous aspects of the invention. It is not the idea of an invention but the invention itself that is protected, and the written description of the invention provides the best information for someone skilled in the art to build upon an inventor’s invention (to produce a “better” mousetrap), something that would be impossible without the disclosure required by the patent law.
Copyright is equally parsimonious, permitting ownership not of an idea but the expression of the idea. This standard can cause problems in situations where a portion of a creative work is “sampled.” But the answer is not to reduce copyright protection but to realize that copyright requires creativity. Instead of sampling (expropriating or stealing) the expressive works of another author, creating an artist’s own expression of the idea provides the best protection from a charge of copyright infringement.
The ideas embodied in a protected work, either patent or copyright, have precisely the fate, as ideas, that Hyde protests they should have: a place in the intellectual commons.
With regard to patenting, Hyde’s book is limited to a discussion of biotechnology, and particularly protection of human genes. Here, many of Hyde’s ideas come from Nobel Laureate Sir John E. Sulston and his work—along with Georgina Ferry—“The Common Thread: A Story of Science, Politics, Ethics, and the Human Genome.” Sulston and Ferry’s book recounts the elucidation of the human genome by the public Human Genome Project and the private corporation Celera. These separate efforts had the potential at the time for a divide to arise between public and private genomic information, and Sulston and Ferry’s book takes account of the concern that certain human gene sequences developed by the private effort would be undisclosed.
That fear turns out to have been unfounded, again because patenting requires disclosure, which in the case of a human gene includes the gene’s sequence and the putative amino acid sequence of the protein it encodes. (In addition, the U.S. and other countries required the applicant to identify the utility of the encoded protein, to prevent a “land grab” of sequences with no known biological activity.) Thus, this genetic information is disclosed as part of the quid pro quo of the patent grant, and the information is freely available to be used “in common” by researchers, scientists, students, and anyone else. Patents protect against unauthorized commercial use, and even that restriction is limited to 20 years from patent filing (meaning that almost all human gene patents will expire by about 2020). There is little evidence that protecting genes by patent has prevented basic research; indeed, every report looking for such inhibition has not found anything significant, and even for commercially exploited genes (such as the BRCA1 and BRCA2 breast cancer genes), there have been thousands of basic research papers published for work performed after the genes were patented.
Nonetheless, the Department of Justice ruled in November 2010 that human and other genes should not be eligible for patent protection because they are products of nature. “The U.S. has concluded that isolated but otherwise unaltered genomic DNA is not patent-eligible subject matter,” the department said.
Interestingly, but not discussed by Hyde, a modern equivalent to the types of royal monopolies opposed by the Founders in the 18th century exists today in those countries where the government is a necessary partner for commercial ventures, or where government-backed industry cartels have the power to decide whether an invention is commercialized, particularly one by a foreign inventor or company. An analogy can also be drawn along these lines for situations where governments are empowered to abrogate patent rights or impose compulsory licenses for national “emergencies,” which has occurred with some sound justification for anti-AIDS drugs in some countries. However, in other cases governments have granted monopolies to local pharmaceutical companies for infringing activities concerning drugs for less exigent ailments (such as the anticoagulant Plavix, for example). While existing under very different regimes and addressing very different circumstances, this type of governmental intrusion into intellectual property rights comes closest to the type of royal monopolies that the U.S. patent and copyright systems were designed to thwart.
Hyde raises more serious issues with copyrights than patents, particularly regarding expansion of the term of the right over the past several decades. While it is certainly within the power of Congress to provide such extensions, Hyde argues that Congress has changed copyright qualitatively as well as quantitatively, by increasing the capacity of a copyright holder to restrict access far longer than had previously been the case. It is tempting to dismiss this complaint by noting that actual creativity, as opposed to mere copying, is the best way to circumvent copyright issues, but such an analysis is more facile than informative when applied to sampling and other forms of electronic reprocessing of creative expression that exist today.
However, while Hyde has a point that the film and recording industries have been particularly aggressive in getting out their antipiracy messages to students, fair use and other concepts that exempt copyright holders from restricting dissemination of their ideas for educational purposes are adequate as currently constituted (it being perfectly appropriate for copyright holders to remind students that unauthorized copying of films and music has financial and criminal penalties).
Hyde’s book raises many important issues regarding intellectual property, particularly with regard to whether the copyright term is too long and whether modern means of expression, such as the Internet, make it prudent to review the scope of the restricted right. But none of these important issues avoids Hyde’s all-encompassing concept that ideas are a commons that need protecting from patents and copyright holders. For that reason, all his learned observations and arguments fail to convince.
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