The cost of freedom in the digital age

Ehsan Masood
2 October 2006

In common with many IT users, I do not buy original printer cartridges. I prefer instead to exchange my empty printer cartridge for a recycled one at one of the many cartridge shops that have opened up in Britain. The invitation to save both my wallet and the planet is too tempting to ignore.

Last week, however, my local branch put an end to these green shoots of environmentalism. The reason is that new printers come with electronic-chips that will stop a device from working with unbranded cartridges. A third-party reseller who tries to copy the chips could be liable to patent infringement. This single development may well send the cartridge-recycling business to the wall.

Also last week, I trundled off to the local locksmith to see if he would make an extra set of keys to my car. He could, but I learnt that a process that not long ago cost around £7 ($10) now costs nearly £140. This is because today's car-keys are not really keys. They are more like miniature radios in that they contain electronic transmitters designed to communicate with ignition systems.

An ignition system won't work unless it recognises that the chip in the car-key comes from a trusted source, which at the moment is likely to be none other than the car's manufacturer. The design for these keys is protected through patents, which means that manufacturers can charge whatever price the want. The likely result is that my local cartridge recycler will become an endangered species - and shortly be joined by the locksmith.

Ehsan Masood is project director of The Gateway Trust. He writes for New Scientist and Prospect magazines and is a consultant to the Science and Development Network

Also by Ehsan Masood in openDemocracy:

"British Muslims must stop the war"
(August 2005)

"The globalisation of Islamic Relief"
(November 2005)

"Bush’s 'war on science' through the microscope"
(January 2006)

"Alexandria’s bridge" (February 2006)

"Measuring miracles" (April 2006)

"The light of education: blind children's best buys'" (May 2006)

"Israel and the bomb: don't ask, don't tell" (June 2006)

"Muslim Britain: the end of identity politics?" (July 2006)

"The aid business: phantoms and realities" (July 2006)

"Millennium Development Goals: back to school"
(August 2006)

"Big media, small world" (August 2006)

"The global politics of cricket"
(September 2006)

Property and propriety

Should we be surprised? I think not. In the world of consumer goods, the big manufacturers have learnt a neat trick to maximise revenues. It goes like this: reduce to as low as possible the retail price of devices such as TVs, computers, printers, and shaving-kit, and at the same time maximise the price of what goes into those devices, such as cable TV subscriptions, computer software, printer-cartridges and razor-blades.

The principle here is not unlike the controversial "terminator" seed technology that many agrochemical companies would like to see in rural parts of the developing world. Here, seed manufacturers are keen to produce seeds which become sterile after a single season's planting, thus compelling farmers to buy new seeds every year.

If we are not surprised, should we at least be concerned? In recent years, many influential voices have been warning that we should be. They deploy three main arguments to support their case: that over-use of patenting is unfair to competitors; that it restricts creativity in society; and that while wealthy societies tend to grant large numbers of patents to their inventors and innovators, lots of patents by themselves do not make for high national incomes.

The critics include none other than the Blair government's own Commission on Intellectual Property Rights, which was established by Clare Short (formerly minister for international development) soon after Labour came to office in 1997. There are many dissenting voices in the academic community too. A new, lengthy essay by a leading thinker in the field, Graham Dutfield of Queen Mary University) concludes - rightly, in my view - that "intellectual property is good. But more of it is not necessarily better" (see "Who needs intellectual property rights?", Quarter, Autumn 2006).

At the same time, alternatives to traditional models of rewarding creativity are emerging and spreading. Indeed, openDemocracy uses one of them: the creative-commons licence in which an author gives permission to other users to download and distribute his or her work for free so long as it is for non-commercial purposes.

Analogous instruments in other fields include open-source software and open-access publishing, in which new knowledge or the results of publicly-funded research are disseminated freely, with the costs borne by an author, scientist, or funding organisation. The idea is that readers should not have to pay a commercial publisher to read research results, or the content of new books, which they may already have paid for through their taxes.

Becky Hogge's openDemocracy column ("Virtual reality") demonstrates that the movement of creative commons/open source/open access towards the mainstream is gathering pace and strength. Its proponents include the Wellcome Trust, one of the world's largest medical research funders; and Nobel laureates such as Harold Varmus, former director of the National Institutes of Health in the United States.

The movement's advocates are savvy enough to know that the world will not change overnight. But the evidence of shifting perspectives is all around; the British Library's intellectual-property manifesto published on 2 October is only the most recent example of an established cultural institution's engagement with the issue.

Moreover, there is enough money in the till and enough support among peers to give the movement a degree of confidence and self-belief that when change does happen, they will be on the right side. The contrast with supporters of traditional property rights, particularly guilds of writers and musicians, is evident: here you see a group that feels the ground beneath beginning to move, and in a direction it feels highly uncomfortable with.

Innovation and interest

These tensions were all too apparent at the launch in London on 29 September 2006 of Unbounded Freedom, openDemocracy contributing editor Rosemary Bechler's thoughtful and thorough analysis of what she calls the "sharing economy". Rosemary argues that digital technology (and the facility it creates for all to become reporters, publishers, TV executives and radio producers) has ripped up the bargain between producers and users.

Creative commons/open access should be welcomed, Rosemary believes, as a new kind of publishing contract for the digital age. Implicit in this contract is the recognition that providing more access to knowledge is better for societies; and that the sort of behaviour exhibited by my car company, my printer manufacturer and the company that makes my razor-blades is not, on the whole, a good thing.

The event was skilfully chaired by BBC technology commentator Bill Thompson. Bill later wrote in his BBC blog that creative-commons converts are likely to be few because most existing commercial structures remain strongly wedded to the status quo and do not want to change. I think Bill is right, in that among the alternatives to traditional intellectual property, creative-commons thinking can only go so far - but no further.

Why should this be so? One answer is that the established applications of creative-commons thinking (books, research journals, websites) are primarily vehicles for the dissemination rather than the production of content. As Caroline Michel of the William Morris literary "talent and literary agency" in London said at the launch of Unbounded Freedom, there is as yet no agreed creative-commons model for content production, far less one which adequately rewards an author, inventor or innovator. Indeed, the opposite of this is the core principle of open-access publishing; instead of being rewarded, an author or a scientist is required to have to pay to have his or her ideas disseminated.

A big test of whether creative commons is appropriate to content production is to look at companies such as Google, which emerged directly out of a creative-commons product (the World Wide Web, which was never patented). You would expect Google to adopt a more creative-commons approach towards money-making. But the company is as strict as any other multinational about using conventional rights-protection on its most valuable products. At the same time, and in common with Microsoft and others, Google is happy to tap into the goodwill of millions of users who are a free resource testing out its products.

Google knows that it needs to differentiate itself from its competitors in order to generate serious amounts of money (as of course do these competitors in turn); without this, the company says it cannot invest on the research and development needed to create the next generation of Google products. Similar arguments are put forward by large private corporations in other industrial sectors such as pharmaceuticals, defence, aerospace, automotives, oil and gas.

In this respect, developing countries as a whole are no different from private companies. Whatever they may say about the iniquities of the global patenting regime, governments and businesses in countries such as Brazil and India are just as aggressive as those in the United States and the European Union in hurrying to protect their own technologies and processes that could or do have a commercial use.

Again, none of this should come as a surprise. Throughout the history of post-industrial technology, success in innovation has been about being able to exploit a situation to commercial advantage, regardless of how such an advantage was gained.

A new public sphere?

I can, however, see two scenarios in which Rosemary Bechler's optimism for creative commons could be realised in rewarding producers of content.

The first of these would follow the model of the United Nations Convention on Biological Diversity, signed at the Earth Summit in Rio de Janeiro in 1992. This is among the few international agreements requiring large corporations to take a creative-commons approach to property rights (without actually calling it "creative commons", a term which became current only in 2001).

The convention explicitly says that the rewards from any commercial product made from a biological resource such as a medicinal plant must be shared with communities from where the resource may have been found. For example, the profits from a drug that might be derived from a plant found in a developing country would need to be shared with all beneficiaries. These would include innovators, as well as all of those who contributed to maintaining (or conserving) the plant in its original habitat. Costa Rica and the Philippines are two countries where governments and industry have collaborated to work out in detail how this sharing might operate in practice.

The second scenario is if at some point in the future, societies returned - or progressed - towards revived forms of public ownership. Unbounded Freedom is published under a creative-commons licence. The decision to do so would have been made easier because the book was commissioned and paid for by a publicly-funded body, the British Council's in-house think-tank Counterpoint, part of whose aim is precisely the dissemination of new ideas and thinking.

The BBC is similarly engaged in discussions about how to broaden its pool of suppliers, and how to turn more of its users into content-producers. Again, it can do this because it is a large public body with money at its disposal to spend without expecting a return on its investment. But for those who work in the private sector it is a different game.

Free dissemination systems such as open access and creative commons are good and should be supported. The most excluded in society will benefit from not having to pay. But creative commons is not the right alternative to rewarding content-creators and innovators. We are still only at the dawn of the digital revolution. It is likely that by the time we get to sunrise, more equitable alternatives will have been found. Until that happens, whoever ends up picking up the bill for content creation, there is little justice in charging the credit cards of scientists or short-changing authors of books and composers of music.

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