Information Feudalism: Who Owns the Knowledge Economy?
with John Braithwaite Earthscan, UK, 2002; New Press, New York, 2003, 253 pp.
Large companies own more intellectual property than at any point in human history, in areas such as agriculture, plants and food, financial methods of doing business and on the algorithms that drive the digital revolution.
The standards in TRIPS will profoundly affect the ownership of the 21st century’s two great technologies – digital technology and biotechnology. Copyright, patents and protection for layout-designs are all used to protect digital technology while patents and trade secrets are the principal means by which biotechnological knowledge is being enclosed.
No one disagrees that TRIPS has conferred massive benefits on the US economy, the world’s biggest net intellectual property exporter, or that is has strengthened the hand of those corporations with large intellectual property portfolios.
The stakes are high in the case of intellectual property rights. Intellectual property rights are a source of authority and power over informational resources on which the many depend – information in the form of chemical formulae, the DNA in plants and animals, the algorithms that underpin digital technologies and the knowledge in books and electronic databases. These resources matter to communities, to regions and to the development of states. In the next section we outline the way in which efficiency, basic freedoms, democracy and intellectual property rights are connected.
Attempts by corporate owners to give legitimacy to their intellectual property empires through appeals to romantic notions of individual authorship and inventorship look less and less morally persuasive in a world where intellectual property rights and TRIPS especially are being linked to bigger themes and issues – widening income inequalities such as those between developed and developing countries, excessive profits, the power and influence of big business on government, the loss of national sovereignty, globalization, moral issues about the use and direction of biotechnology, food security, biodiversity (the last three all linked to patenting of plants, seeds and genes), sustainable development, the self-determination of indigenous people, access to health services and the rights of citizens to cultural goods.
TRIPS was the beginning of a quiet revolution in the way that property rights in information would be defined and enforced in the emerging global information economy. Intellectual property rights are not like property rights in land. Lawyers refer to them as property rights in intangibles in order to distinguish them from the ownership of physical objects. Their reach extends to the building blocks of life and computing science. Through them corporations have made things like DNA, algorithms and musical sounds targets of private ownership. What was once part of the intellectual commons has fallen into private hands. And, as we shall see, citizens have been turned into trespassers in their own cultures. Yet outside the professional elite that congregates around trade negotiations, few knew about TRIPS and even fewer understood its implications.
In any case it was far from clear that it was piracy, since intellectual property rights were for most of their history not seen as property rights, but rather as monopoly privileges. These monopolies were created by states for their own purposes and how they ran them remained their affair. The rules of international commercial morality were not like the moral rules we think about in relation to the possession of our car or jewellery. International commerce had created a very different kind of moral world for itself. In order to make all this clearer we need to understand some history.
Propping up the patent system and other intellectual property systems at the expense of free trade turned out to be something of a long-run miscalculation by states. During the 20th century the patent and copyright systems were colonized by big business, which routinely used these system as the backbone of international cartels. These cartels exacted a heavy toll from states or rather from their citizens. Patents formed the basis of a cartel among pharmaceutical companies to raise the price of broad-spectrum antibiotics, causing countless thousands of deaths among people who could not afford to buy them.32
"Patents are the best and most effective means of controlling competition. They occasionally give absolute command of the market, enabling their owner to name the price without regard to cost of production. . . The power which a patentee has to dictate the conditions under which his monopoly may be exercised has been used to form trade agreements throughout practically entire industries, and if the purpose of the combination is primarily to secure benefit from the patent monopoly, the combination is legitimate. Under such combinations there can be effective agreements as to prices maintained." Edwin J. Prindle
The essence of the knowledge game was to propertize as much knowledge as possible. Restrictions on patentability had to be removed.
The use of intellectual property rights to structure and enforce cartels spread between the two World Wars. Cartels became, in the words of one study, the ‘outstanding characteristic of business’.Intellectual property became the outstanding marker of knowledge cartels.
What US industry learnt from German industry was that patents were matchless instruments of business domination. In the following decades the US patent profession put its energies into perfecting the use of this instrument.
When in 1994 we interviewed a former US trade negotiator, he remarked that ‘less than 50 individuals’ were responsible for TRIPS. Less than 50 individuals had managed to globalize a set of regulatory norms for the conduct of all those doing business or aspiring to do business in the information age. For this research we managed to interview perhaps half of these individuals in our effort to make sense of the remarkable TRIPS story.
The Europeans were also more sensitive to developing country complaints about the basic unfairness of the existing intellectual property regime. US trade negotiators were openly critical of what they saw as European softness on the issue.41 But the Europeans realized that imposing harmonized intellectual property standards on developing countries via the GATT regime would carry with it complex diplomatic costs. By the mid- 1980s, however, US industry wanted much more than a simple side code on counterfeit products. A comprehensive agreement on intellectual property was now part of the US agenda. Europe’s top civil servants would have to be persuaded that an agreement on intellectual property was fundamental to the entire Uruguay Round.