In 2006, at the launch of Unbounded Freedom, Rosemary Bechler's investigation into the Creative Commons for the British Council think-tank Counterpoint, I heard a comment I have not forgotten. The event had been contentious, dividing its audience of publishers, scientists and technologists. The two speakers, one from the publishing industry and one from the world of intellectual-property reform, had not seen eye-to-eye. Then a man with a background in scientific research funding stood up. "It appears to me there are two sides to this debate", he observed, "those who want to have it and those who don't."
The debate he was referring to was the one that tends to start whenever you consider the global economy, digital, networked communications, and intellectual-property law. In 2005, when I first started writing for openDemocracy, that debate seemed a remote and rarefied one. Since then, it has drawn ever closer. For a long time, it has been characterised by the vested interests of those who take part in it. But gradually it is emerging in a kind of relief.
What it boils down to is this. The developed countries of North America and Europe, faced with fierce trade competition (including over manufacturing goods) from rapidly developing economies such as India and China, are shoring up their "knowledge economies" in order to guarantee their ongoing prosperity in the global marketplace. This is being done both internally (and regionally), through consultation and policy review, and externally, in the form of global trade negotiations.
In both contexts, intellectual-property (IP) law takes centre-stage. So, for example, Britain's department for culture, media and sport will in June 2007 release a "creative economy" green paper, the result of an eighteen-month programme of investigation into the domestic creative industries, one strand of which relates to IP law. More immediately, the Group of Eight (G8) summit meets in Heiligendamm, Germany, on 6-8 June at a time when its current president and host, Angela Merkel, has made known her desire to discuss the reinforcement of intellectual-property rights.
At the same time, the global intellectual-property framework is being challenged on development grounds. A map of the world produced by worldmapper.org which shows countries sized according to the distribution of royalty fees brings home the distribution of global IP wealth; the United States, Britain and Japan bulge almost beyond recognition, while the rest of the world is practically invisible.
This is not a matter of straightforward economic inequality. The onus on countries to conform to industrial-nation-standard IP protection before they have significant knowledge goods of their own to trade is exacerbated by the fact that economic development relies on access to information, education and health - which in turn rely on access to knowledge goods. This understanding lay behind the announcement of the United Nations' World Intellectual Property Organisation (Wipo) in February 2007 that it would adjust its policy away from the all-out promotion of global intellectual-property standards and towards a deeper analysis of the value of a rich and accessible public domain.
New market, new laws
These two realities - the ambitions of developed powers in the global marketplace and the understanding that access to knowledge has a central role in global development - are ostensibly in conflict. But this conflict is not an inevitable one; it derives instead from a variety of orthodoxies surrounding intellectual-property law. And, as is becoming clear to more and more sections of global society, these orthodoxies need not remain unchallenged.
Technological advancement means a new mode of knowledge production is emerging, one which casts a different light on intellectual property law. The rampant success of free and open-source software, a collaborative enterprise which exists thanks to an insightful "hack" of copyright to guarantee the enforced sharing of code, cast the first beams. And the creativity of those individuals engaged in the new communications environment of the World Wide Web - whether they be cultural curators, Wikipedians or bloggers - has consistently shown how the law could be different.
Knowledge goods that result from these open IP frameworks have the potential to be of significant value to the developing world. Several projects are already underway to unleash that value - both outside of it (in the form of projects like One Laptop per Child and the Bookmobile) and within (Brazil's Puntos de Cultura, or South Africa's tuXlabs). But these practices should not be ignored by the developed world either; if those of us who live there are going to spend the next few years building policy frameworks that support a knowledge economy, then we had better make sure we get it right.
At the heart of that effort will be the very way we define and consider intellectual-property law. Despite the protestations of rightsholders and the forums they capture (most recently, the House of Commons's select committee on culture, media and sport), intellectual-property law has little to do with morals or natural rights. Yes, creators and innovators need to be justly rewarded for the work they do, not just for the sake of their own welfare, but for society's as a whole. But the laws that are framed to guarantee this reward are artificial, statutory instruments, designed to compensate for market failure, and therefore for particular types of markets.
And right now, thanks to technological advancement, the market for knowledge goods is changing as much if not more than it did under the impact of the Gutenberg press. Britain's Treasury recognised this when it commissioned the Gowers Review of Intellectual Property in 2005; on a good day, I can almost imagine that the European commission did too, when in 2006 it commissioned legal scholars to examine IP law's performance in the knowledge economy. This is the debate that one side of the room wanted to have at the Counterpoint launch. Very gradually, more people are joining it.