An IP report from deep within the US
Christiaan Bester, one of our greatest volunteers, is currently studying towards a postgraduate intellectual property law degree at the University of Texas and has written two great pieces to report back on what he has observed in the US since his arrival in late August.
“I attended a panel discussion today filmed by Court TV at the University of Texas Law School on “Protecting IP.” The topic is nothing new in the US. It is not even the real hotbed of contention in the current political climate where the indictment of the Vice-President’s Chief of Staff and the competency levels of the latest Supreme Court nominee seem to receive saturated attention from all the big networks.
What captivated my interest as a visiting student from the African continent though, was the composition of the panel: Alberto Gonzales (US Attorney General), Carlos Gutierrez (US Commerce Secretary), Senator John Cornyn, House Representative Lamar Smith (an important friend of the IP fraternity) and a number of industry leaders as well as UT Law Professor Ronald Mann.
Here was a real opportunity to find out how the prevailing wisdom on IP protection reads in the US circa 2005.
Does this wisdom still hold that ‘absolute forms of IP Protection are required to maintain the competitive edge of US goods and services in a global economy irrespective of the any perceived detrimental social costs?’
When it became apparent that the Internet’s nullification of traditional copyright law posed a very real threat to US hopes of remaining competitive in a digital marketplace that had just become global, this kind of wisdom quickly spread across the IP populous in the late 1990’s following the enactment of the DMCA by Congress.
Collectively taken, it would be fair to say that the views held by the panel constituted the mainstream views on IP Law as we know it today - protection of IP is essential to create an incentive for further innovation and artistic creativity. Throw in a strong flavor of protecting US economic interests in the global marketplace - IP being one tool to achieve this end - and at face value, it would seem that nothing much has changed since the passage of the DMCA.
What surprised me though, was that there seems to have developed a real awareness in the US that:
* IP Laws will never eliminate all copying;
* too much protection can actually be counterproductive as it eliminates necessary competition for further innovation and artistic creativity;
* prosecuting millions of college kids who download pirated music is a waste
of government resources that could be utilized for more pressing needs like Federal Emergency Relief in the wake of Hurricane Katrina (or fighting wars in the Middle East if you like);
* educating the rest of the world on the importance of IP will never succeed
unless the benefits of IP can be transferred to the inhabitants of the far corners of the earth.
Does this realization represent a fundamental shift on how the US sees IP law? Perhaps it does if one considers Senator Cornyn’s suggestion that lawmakers should undertake the equivalent of the ‘Hippocratic Oath’ and promise that they will do no ‘harm’ when legislating on IP Issues.
But wait, from the language used by Attorney-General Gonzales it is apparent that we have in fact not witnessed a sea change on US policy in the last few years on IP law. He spoke of the content industries (presumably he was referring to the Recording Industry Association and the Motion Picture Association of America) throughout the discussion as the ‘victim’ industries.
Are the RIAA and MPAA the only victims under the current IP legislative scheme? Perhaps the answer is in the affirmative if one construes the ‘harm’ Senator Cornyn referred to as implying a direct loss of CD and DVD sales as a result of peer-to-peer file sharing.
However, we know that the RIAA and MPAA are not the only victims under the current IP legislative scheme. The social costs of current IP laws go much further than the creators of content - its reach has a broader dimension in the form of the social costs to the public interest that relies on an IP legislative scheme that crafts a proper balance between free access and ownerhsip.
It is this public interest that requires a balance between the public domain and the private rights guarded by IP law in order to allow the kind of free competition essential for a vibrant economy. Where the public domain becomes eroded as is the case under under the current IP legislative scheme, innovation and creative vibrancy is reduced to second class citizens and the IP system forfeits some of its original legitimacy - to promote the progress of science and the useful arts.
Closer to South Africa, the core of current US views on IP law is the need to encourage innovation. The US seems very concerned about its ability to remain competitive in view of the emergence of sleeping technological giants like China and India, where 650,000 and 150,000 engineers respectively graduate from university per annum, as opposed to the US figure of only 90,000.
Applied to South Africa, do we have enough engineers, scientists and mathematicians who are coming through every year to ensure that we at least have some role to play in the global market?
While there are perhaps other pressing needs that require our attention, the need to foster the right climate that encourages innovation is so important that it would be irresponsible to place it on the backburner indefinitely.”