Friday, August 19th, 2022 14:21:08

All (Intellectual) Property Is Theft

Updated: May 8, 2010 12:42 pm

Intellectual Property Rights (IPR) were originally created to promote the advancement of science and the arts. But does today’s IPR system serve the public good?

According to anarchist Pierre-Joseph Proudhon, all “property is theft.” He railed against the iniquities of the rich-poor divide, recognising that property depends on power the power to take and to keep; but Proudhon missed the point. Property is not ‘the thing that somebody owns’; rather it is a government-sanctioned monopoly right, legally enforced through courts. Governments can seize assets on a whim, simply by passing laws reclaiming ownership they already do this piecemeal through the tax system and by inflating the currency.

            However, they cannot behave arbitrarily. Excessive seizure will inhibit individuals from becoming involved in the economic system, undermining its viability a harsh lesson eventually learned by every socialist state. Only when people believe that they can hold onto private property will they use their efforts and assets to purchase goods, and thereby keep the economy going.

            A self-sustaining economic system needs more and more objects turned into property for sale. This explains the vast expansion of Intellectual Property Rights over the past decade. However, some people see ‘Intellectual Property’ as theft of their longstanding rights. For example, they believe that all government-funded research and development is public property they should not pay twice to use it. They want all publicly funded property freely available to the public.

            Common rights about recording, sharing and manipulating music, which the record buying public have taken for granted for decades, are now being eroded. Those who legally buy music and movies have its usage severely constrained: they can neither share it, nor even take it to another ‘region’; their PCs are being externally searched; they have no legal right to copy it onto an MP3 player; even the number of devices where they can play it is restricted. Meanwhile those with pirated CDs/DVDs can do what they like although they do face the full force of the law in the highly unlikely event of being caught.

Enclosing the Commons

Thomas Jefferson believed that intellectual property should not be ring-fenced; ‘cultural artifacts’ should spread freely for the good of mankind. Clearly science would never have developed under an IPR regime. Scientific research is being stifled by IPRs, and some scientists are so concerned that they have launched the Science Commons initiative, seeking “open access to

scholarly literature and data,” and trying to “identify and eas[e] key barriers to the movement of information, tools and data throughout the scientific research cycle”. According to these scientists, “[t]he hope is to combine their publishing, data, and licensing approaches, in order to develop solutions for a truly integrated and streamlined research process.”

            In 1955 Jonas Salk produced the first inactive polio vaccine. When asked why he hadn’t patented the vaccine, he replied: “That would be like patenting the sun.” Science has changed over those fifty years! Nowadays the merest discovery is patented/copyrighted with inventors rushing to patent far too soon, particularly if another group is working on the same problem. This was a major cause of the Fleischmann and Pons ‘cold fusion’ fiasco of 1989.

            Nevertheless, big IPR owners pressurise governments to protect their rights. The problem is that IPRs are negative rights they prohibit rather than permit. Some call them government-condoned anti-trust and anti-competitive, with a cartel of favored users given an unfair advantage. Anyone who wants to adapt a protected work without permission is barred, or at a disadvantage at the very least. In general, there is no requirement for the rights’ holders to exploit their property. They can buy up new competitor patents, kill off the competition and block development, all the while continuing to profit from old patents. “Patent trolls” collect an IPR portfolio and then sue all and sundry for infringements, while doing little to develop the inventions. That is why some enlightened countries require that inventions be exploited and threaten to revoke patents, awarding licenses to others wishing to exploit the inventions.

            Those willing to pay, find some artefacts, such as films, have a bundle of property rights attached that are linked to multiple owners. They are required to obtain the permission of each and every rights’ holder before they may legally embark on the production of any derivative work. Rights may become so fragmented that it is impossible, or at the very least expensive and time consuming, to track down all the holders. Mercer and Kinsella observed IPRs “are a burden to marketplace transactions, and discourage business startups.”

            Far from benefitting innovation, IPR legislation often achieves the exact opposite. Innovation isn’t a single event, rather an ongoing process of applications derived from the initial breakthrough. Nobel Laureate Herbert Kroemer explains this in his Lemma of New Technology: “The principal applications of any sufficiently new and innovative technology always have been and will continue to be applications created by that technology.” Most applications are not developments by the original creator but by others who build a whole raft of derivative applications way beyond the imagination of that originator. By banning derivative works, the potential of an invention is limited, and all future revenue streams are cut off.

           Destroyed by ‘Development’

 The onslaught on Orissa’s forests began with the Hirakud dam, Rourkela steel plant, Mandira dam, the Upper Indravati hydroelectric project. Three million forest-dwellers in Orissa are estimated to have been displaced since Independence; most have vanished without a trace. Now it’s the mining leases that are destroying these forests. But local communities are no longer silent about this ‘development’.

Seventy-five-year-old Raimati has to make quite an effort to walk up the 50-foot slope from her ‘workplace’ to her tiny hut at Benakhamar village on the bank of the Upper Indravati reservoir in Nabarangpur district, Orissa. Her ‘workplace’: a manual stone-crushing unit (illegal, according to the administration) run by women like her in the village. They heat the stone by burning fuelwood underneath it for hours; crush the stone into small pieces using a big hammer; and then pound the small pieces into stone chips using medium-size hammers. Even as this tedious process goes on non-stop everyday, they might have to wait for months for a contractor to come by and buy the chips at meagre price of Rs 750 per tractor-load. This is the total sum for a task that involves a month of hard work by a group of four to five women.

            Raimati can barely lift the hammer. But she has no choice. “Despite the hardship, I cannot ensure a square meal for myself every day,” she says absent-mindedly, looking across the vast spread of the Upper Indravati reservoir. She points somewhere in the distance and says: “That is where we used to live, in our village surrounded by dense forests. They drowned our happiness, our beautiful world… And look at me now! Do you think I can lift this hammer and crush stone? But I have to, otherwise the stomach burns!” And this is not the story of Raimati alone, there are thousands like her.

            Nearly 50,000 forest-dependent people were forcibly evicted from their homes in the 1980s and 1990s to make way for the multipurpose Upper Indravati Hydroelectric Project which submerged 11,000 hectares of prime forest, one of the most diverse wildlife habitats in Asia. The displaced forest communities had no option but to retreat to the banks of the reservoir. The road that came up with the project, tearing into the heartland, ensured that the remaining forest around the reservoir would be wiped out by the timber mafia, in connivance with forest officials, in less than a decade. And so the 50,000 displaced forest-dwellers lost whatever livelihood base they were left with.

            The misery of the people of Indravati is a small example of how ‘development’ has destroyed traditional communities that depend on natural resources not only for their survival but also to keep their rich socio-cultural ethos alive—a way of life that is aligned with the natural evolution of the planet, its resources, and its life forms.

            Dr Walter Fernandes, director of the North Eastern Social Research Centre, Guwahati, and former director of the Indian Statistical Institute, Delhi, estimates that between 1947 and 2000 over 60 million people in India were forced to move from their natural homes. Of this, three million people were displaced in Orissa alone, most of them forest-dwellers.

            The Hirakud dam—an impeccable symbol of development for the unthinking middle class—submerged around 75,000 hectares of dense forest, grazing lands, and farmland, rendering homeless around 1,80,000 people who were dependent on local ecosystems for their survival. The Rourkela steel plant destroyed 11,200 hectares of primary forest, evicting 15,000 indigenous people. And it does not end here: in order to feed the steel plant electricity and water, the Mandira dam was constructed, submerging 4,500 hectares of virgin forest and displacing an unaccounted number of forest-dwellers. Then the rail network linking the steel plant with Hatia, Barsuan, Bondamunda and other places evicted 20,000 more people.

            Post-Independence, it’s been the mining sector in Orissa that has cracked the whip for development. Of the 58,13,700 hectares of ‘categorised’ forest area in the state, mineral reserves have been identified on some 35,00,000 hectares; that’s more than 60 per cent of the total forest area. According to a press statement by Orissa’s steel and mines minister, Raghunath Mohanty, in June 2009, “preliminary exploration for mining had already been done on 31,00,000 hectares of forestland”. That, coupled with the rate at which the Orissa government has been signing MoUs—more than 80 by now—with metal, mining, and related industries speaks volumes about the fate that awaits forest-dependent people in the state.

            Indeed, the situation is so chaotic that nobody even knows what happened to around 32,000 adivasi families (more than 2,00,000 people) in the Joda and Badbil areas of Keonjhar district, where mining (mostly iron ore) has been taking place for the past 40-odd years. They simply disappeared without a trace! In Damanjodi, in Koraput district, where NALCO (National Aluminium Company) has been mining bauxite in the Panchpatmali mountains since the 1980s, more than 70 per cent of indigenous forest-dwellers who once were completely self-reliant today eke out an existence below the poverty line.

            The onslaught on forest communities that started with the commercialisation of forests during the British Raj has now become a multi-pronged attack, with scores of ambitious development projects—mining, dams, metal factories, rail network, tourism—in the pipeline, and many more in the offing. These so-called ‘development’ projects seek to wipe out large tracts of primary forest forever and destroy forest-dependent communities.

            In Orissa, the extent of forest area diverted for non-forestry use since the 1940s would be close on 2,00,000 hectare; most of them inhabited for generations by forest-dependent tribal populations. Between 1980 and 2007 alone, according to government records, the area of forests diverted for non-forest activity was close on 35,000 hectares, and this does not include vast tracts of forest promised in MoUs but not yet transferred by the state to industry.

Response of forest-dependent communities

Soon after Independence, especially around the time when the Hirakud dam was being built, communities displaced by such projects did not know how to respond to their predicament. But resist they did, and were met with an unprecedented degree of state repression, helped by the feudal class that primarily represented the new political class of independent India.

            By the late-1970s and early-1980s, the winds of ‘environmentalism’ had already started blowing in Orissa. By this time too, most communities had witnessed the devastation caused by development projects. The 1980s saw the beginning of a new phase of resistance to such projects. The ‘Save Gandhamardan’ movement around the Gandhamardan mountains in western Orissa is a classic example in which communities, social formations and individuals cutting across social structures joined in to successfully force the state government to scrap a mega plan for bauxite mining by BALCO (Bharat Aluminium Company). Gandhamardan has been a source of livelihood not only for thousands of adivasis but also for scores of farmers, traditional health practitioners, and other social groups.

            Another successful movement was the Baliapal movement in coastal Orissa where people fought a long hard battle with the state to stop a huge military base from being set up there.

            Unfortunately, after the economic reforms of 1991 in which India took the path of rapid and indiscriminate industrialisation, Orissa turned into a sort of ‘laboratory’ for the neo-liberal agenda, putting huge pressure on the state’s forests, water sources, and energy supply. Metal factories, power plants, dams and mining units sprouted like mushrooms all across the state, especially in forest areas.

Taking on the assault

Communities everywhere are resisting being sacrificed at the altar of development. In many cases, people have been able to halt the progress of industry, putting the brakes on the disruption of their lives and livelihoods: Kalinganagar, Kashipur, Jagatsingpur, Niyamgiri are just a few of the names…

            But despite the widespread resistance, a number of communities have already been devastated. A prime example is the Sambalpur-Jharsuguda stretch in which Lapanga falls; Lapanga boasts the oldest ‘recorded’ instance of community forest management in the state, since 1936.

            An elder (who pleaded anonymity) of the widely publicised and respected Lapanga Prajarakshit (community-protected) Jungle Committee says: “What tremendous collective efforts and care went into protecting the village forests here, for decades! But today this place has become unfit for human beings to live. Not only have we lost large areas of forests to factories all around, the environment is totally destroyed… even the social environment now stinks! Living here is going to be even tougher in future.”

            Another member, a middle-aged man who also pleaded anonymity, says: “Our elders had sown the seeds of prosperity for us by keeping the forests, and my generation reaped the harvest. But what is our next generation going to do? What will they survive on? We still have about 300 hectares of forests. But suddenly, after these companies came here, trees in our forests are being felled every day and transported out. We do fight, but they come with the company goons. We do not know how to tackle the problem. Our elders had protected this forest for over 100 years by contributing foodgrain set aside from family rations and also by putting in voluntary labour. Earlier, 80 per cent of the village forest and farmlands was lost to the Hirakud dam; now the remaining 20 per cent of forest is in the greedy eyes of the companies. We do not even know where they came from.”

            Walking with him in the forest, I could feel his helplessness. The forest is dotted with hundreds of stumps of freshly felled sal trees. Our conversation is interrupted by the sound of heavy trucks plying right through the forest. He says: “This was the go-danda (path meant for cattle to return home). But now it is a sort of highway for vehicles belonging to the Hindalco coal mine located just a few kilometres from here. They cut so many trees to build this road.” He adds: “Due to the factories all around, especially the Bhushan Steel Company, and the coal-carrying vehicles, this place has turned into an industrial dump yard. We are inflicted with strange diseases now.”

            I saw industrial waste, especially ash, dumped randomly all over the place, even on the main road. I learned that in order to carry away one truckload of ash from the factory, a truck owner gets Rs 11,000. However, it is not specified where he is supposed to dump the ash and so he takes the easiest way out! On a prominent signboard showing you the way to the Hindalco coal mine, you cannot miss the tag line: ‘We care for the environment’!

            I follow the ‘environment-friendly’ directions given by Hindalco and end up near Beheramunda village, about 10 km from Lapanga. Manbodh Biswal, a local activist who was arrested for questioning the state about allowing the company to set up on forest land, and is now out on bail, wonders: “There was a dense forest standing here. How did the company manage to get the land? Moreover, they have acquired the village commons and have paid some paltry compensation. It’s like hacking your head off and then saying that the rest of your body is okay for you to live a lifetime!”

            Kabiraj Mahanand says: “More than 75 per cent of our Khenda Gram Jungle (Khenda village forest) was lost to the mine; now we try and protect the remaining 25 per cent of forest. But the pollution is so great that we find it difficult to live here.” Ugrasen Mahanand adds: “Because of the dump yards, our farmlands remain waterlogged; it’s been six years since we have cultivated our lands.”

            A little while later, Manbodh Biswal laughs and tells me that what I had mistaken for a hill was actually a dumping site for soil extracted through mining.

            As soon as we reach the village of Matulu Camp, we are accosted by an army of women who think I am a company official. “We had cut down on our daily rations for decades to keep the forests alive. You come and take away our livelihoods?” an old woman says, charging at me. For the next one hour it’s like a rehearsal for a fight already ordained. As we are about to leave, the old woman barks out an order: “Go and tell all these companies to pack up and leave our lands and forests.” I wished that her words could have reached the ears of Chief Minister Naveen Patnaik.

            The Sambalpur-Jharsuguda stretch is testimony to the dark side of Orissa’s ambitious industrial development drive, in the past 10 years. Apart from destroying forests rich in resources, industrial pollution and waste have reduced farm output as well. An unplucked cauliflower looks like a palm-full of cowdung meticulously placed on the ground! And the biggest paradox is that many of the industrial units have been certified as CDM (clean development mechanism) projects even as the rest are awaiting certification!

            The middle-aged man in

Lapanga says: “When we keep the forests and, in effect, keep the environment clean, we never get such certificates! Why?”

            In Ghichamunda village, the monthly meeting of the village FPC (forest protection committee) is on when I arrive. The villagers tell me: “In order to efficiently protect more than 800 hectare of village forests, we have divided ourselves into three groups and work in close coordination. But the Bhushan steel plant and the Vedanta smelter are already wreaking havoc on us. They are dumping ash in our forests; Bhushan has in fact taken away the grazing fields and lands from the adivasis in addition to a large government area that they use for their ash pond. Due to industrial pollution, leaves are turning black and trees have stopped growing. We now avoid the village road leading to the town because it is so full of dust. We practically have no road now. They are constructing new roads inside the forest only to facilitate the dumping of ash. All the petty agents and contractors have come together. The moment someone tries to raise his voice, a bundle of currency notes is pushed into his mouth, to choke his throat. If that does not work, they will intimidate you for life. A terrible time has descended on us. But we will keep up the fight. We have given our sweat and blood to our forest, our goddess!”

            A man I met at the Thelkuli bus stop in front of the Bhushan steel and power plant, said: “Someone somewhere is investing heavily to finish up all the forests.” That’s probably the reason why the forest department—which is otherwise so proactive in taking up people’s claims over forests elsewhere—does not intervene in the complex situation here. They don’t even try to form JFM committees!

            But at the foothills of the Gandhamardan mountains, both in Bargarh and Bolangir districts, where community forest management (CFM) groups are holding their ground, people are determined not to allow mining in the area. According to newspaper reports, nearly 30 mining companies have applied for permission and have been waiting for approval for a number of years. Apart from the local people’s strong bond with the forests and a rich tradition of self-governance, what gives them strength is the ‘Save Gandhamardan’ movement that started in the 1980s.

            In November 2007, after eight hours of trekking through the dense Niyamgiri, home of the Dongria Kondh tribals, in Rayagada district, we reached the village of Khambesi. It was dark and we were tired. We settled down to sleep in the front room of a Dongria house. But we could not sleep as the woman of the house coughed relentlessly through the night in the adjoining room. When I asked her about her cough the next morning and why she wasn’t going to a doctor, she said: “We are never affected by a disease that we cannot cure with the medicines that Niyamgiri has provided us. This is the first time that no medicine has worked!”

            Although I completely believed the first part of her statement, I was as clueless as she was about why the medicine wasn’t working.

We climbed the last peak of the Niyamgiri range and what I saw on the other side was revealing. Out of nowhere, in the dense wilderness, was a sprawling factory belching thick dark smoke—Vedanta’s alumina refinery at Lanjigarh in Kalahandi district. The Dongrias down in the valley were unaware of the toxic smoke they had been inhaling of late. How could they possibly have the cure for a disease caused by something they did not even know about!

            ‘Mining happiness…’ is the tag line on Vedanta’s billboards that clutter the landscape! Just five years ago, the Lanjigarh area comprising 25-odd villages, inhabited by the Kondh tribe and dalits, at the foothills of Niyamgiri, was a serene landscape dominated by sal forests and intersected by the Vamsadhara river that emerged from the Niyamgiri. Today, one of the 80-odd MoUs signed by the state government has turned this pristine habitat into an industrial wasteland. Nearly 15,000 forest-dependent people have become refugees in their own homeland; large tracts of forest have disappeared to make way for the factory, ash ponds, red-mud ponds and roads clogged with trucks. That’s ‘mining happiness’ for you! That’s ‘growth’, which the urban elite seems ready to trade anything for, including commonsense!

            Arjun Chandi of Kadamguda village, close to the refinery, asks: “How can you call this development? Someone else comes here, destroys your forests, takes away your economic sources, pushes you on the road, and makes a lot of money. Where is development? If you want to give us development, first give back our forests then talk about development.” Infochange

The sheet music industry objected to the phonograph, which grew into a much bigger industry. The owners of phonograph IPRs originally objected to the radio, which helped boost record sales and created a massive royalty stream. Radio objected to tape recorders. TV and film also objected to video taping and yet today video sales are a substantial proportion of their income. Arguably, the VHS tape spawned the whole home electronics industry. Would e-commerce have happened under today’s IPR restrictions? For it was not created by the main technology players of the time but by consumers who experimented with business opportunities. Such was the genesis of Amazon, Google, Facebook, Skype and many others of today’s giants.

            Despite this, the relevance of

IPR to the economy is undeniable, as is the increasing determination with which rights are being enforced. There is much talk of the negative impact of Internet ‘piracy.’ Works can now be digitised, copied and given away ad nauseum. Copyright owners claim to have suffered serious financial loss from wholesale downloading of files. Rights-holders have gone to government for protection and recompense.

            The threat of criminalising anyone who dares ‘experiment’ with intellectual property will intimidate most people into the silence of self-censorship. Ultimately ideas themselves can no longer be freely expressed because every form of expression will be owned by someone. No one will paint sunflowers because van Gogh’s lawyers will have copyrighted ‘the idea of painting sunflowers!’ If the ‘if then else’ clause had been patented, there would have been no software industry. Impossible? This nightmare is too close for comfort as companies attempt to copyright business processes. Even yoga techniques have been copyrighted; will Indians agree to royalty payments?

The interests of the few versus the interests of the many

The current IPR system is a complexity of rights, none of which make any intuitive sense. It isn’t clear who has which rights to what works, what the exceptions are, when they apply or what their scope and ambit are. What is meant by ‘substantial use,’ either qualitatively or quantitatively? Why is there a ‘one price fits all’ regime just to convenience the owners? Why should I be blocked from non-commercial experimentation? This all vastly increases the transaction costs to business.

            There is a total lack of flexible, customisable IPR solutions and of products that suit the needs of the producers of derivative content. As a result the IPR owners lose out. For there is a huge pot of money at ‘the bottom of the pyramid,’ with people willing to pay a ‘fair price’ for using images and music, but only if the pricing regimes are designed to suit small-scale players. At the moment only the big boys can play; IPR is in effect the instrument of oligarchy.

            I wanted to play three music clips at a presentation in Las Vegas. The American Society of Composers, Authors and Publishers took two months to respond to my queries. A quote of $500 arrived four days before the conference. For that sum I could play the music for two whole days I wanted 44 seconds! The conference had already paid for playing music between presentations, and the hotel already had a music license. I also wanted to use a Time Magazine cover showing Jonas Salk I was quoted hundreds of dollars for an annual license. The conference organisers offered to pay, but my response was “over my dead body.” I gave the talk without music, and with a copyright-free image of Salk downloaded from the web.

            Access to IP material is crucial for presentations, applications, research and innovation. If such access is impossible or exorbitant, then new markets will not appear, innovation and creativity will diminish and business will go elsewhere. Like all forms of prohibition because, like it or not, that’s what we have here the result will be an exodus to alternative markets, boycotting, illegal use, or far worse the involvement of organised criminal gangs.

            Instead of bleating on about their losses through piracy, IPR owners should look for profits in new markets. Furthermore piracy is far less of a problem than smuggling. As the owners of film copyrights successfully threaten downloaders, the scope for organised gangs selling cut-price DVDs increases. The highly effective illegal economy can only be strengthened with each new raft of IPR regulations, and it will cause far more damage to the legal economy than the loss of some film royalties.

            The objective should be a reduction of the friction caused by senseless regulations fixated on moribund direct exchange business models. Instead, policymakers should focus on producing policies that allow new business models to be produced, based on open access for experimentation and the sharing of digital content. Instead we have IPR, a job creation scheme for lawyers.


 By Ian Angell


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