The Trans-Pacific Partnership and the necessity of reclaiming the world of ideas
It should be clear to any thinking person that the regime known as “intellectual property” has come completely off the rails. And, in fact, that while this system might once have been both useful and important — it is now actively hurting us. One example is the body of international law called the Trans Pacific Partnership Agreement, or TPP. This is a major piece of international law that has been negotiated under notorious secrecy for quite some time and presents a number of alarming new laws that, if the TPP is passed, will have the power of international law and will over-ride national laws in signatory countries.
An effort to understand the TPP from the point of view of policy or law can be disorienting — from these points of view, many of the provisions (such as a major extension to the term of copyright) make no sense and a diverse array of critics believe that it is deeply flawed in a number of ways. Yet, the TPP is not merely being considered, it is almost certainly going to become the law in a few months.
I would like to suggest that the TPP is a symptom of a much deeper problem. And that there is no way that we can effectively respond to things like the TPP if we stay at the level of the symptoms. Tinkering with the policy is a distraction. If we want to think clearly and act effectively, we need to identify the root of the problem and act at that level.
I propose that at least one major root of the problem is this: that “intellectual property” as an economic and legal concept is maladaptive to the contemporary environment. To cut to the chase, it is both obsolete and dangerous and we would be better off without it. Unfortunately, unlike many aspects of our society that can elegantly fade away when their moment has passed, the complex power relations around intellectual property have the capacity to preserve themselves in spite of their increasingly poor fit to emerging realities.
In this post, I would like to examine this problem at its roots. To look at how and why the IP regime has come to be so powerful and so harmful and why this is dangerous at many levels. And then, I will essay a proposal on how we might go about replacing intellectual property as an economic / legal model and begin reclaiming the world of ideas.
The first deep problem is that intellectual property is a state-granted (and protected) monopoly. A monopoly is a dangerous thing in a market. Because they are protected from the normal checks and balances of the market, monopolies have the capacity to generate abnormally high returns compared to other uses of capital in the broad market. While some might complain that this is unfair or represents a socially inefficient allocation of resources, the real problem is deeper — these high returns represent the beginning of a particularly pernicious feedback loop.
Over time, some businesses in the protected industry will evolve to discover specific strategies that best tap into the windfall of their particular protected market. These companies will be both resourced and motivated to engage in a process called “niche construction”. This is a process where an evolving system actively works on its own environment to protect and improve the fitness of its particular strategy. In other words, the early winners are able to change from adapting their strategy to the market to changing the market to fit their strategy.
Once this approach works even a little bit, the feedback loop has kicked-off. Better niche construction leads to bigger profits — which leads to better niche construction. So long as the larger environment stays relatively constant, this process results in larger and larger “winners” getting better and better at expanding the scope of their niche and consuming everything in sight.
Now of course, one response might be: “So what?” What does it matter that copyright has expanded and the media industry has consolidated?
Intellectual Property and the Corruption of Politics
In general, this kind of “winner takes all” feedback loop is bad for the economy. But the real problems arise in areas where the niche is a state-granted monopoly. This is because the niche is defined and controlled by politics. As a consequence, huge amounts of money stand to be made by those companies who learn how to do the best job at buying, ahem, influencing, lawmakers.
Consider copyright law in the USA. Back under the original copyright act of 1790, the term of copyright was 14 years plus a 14 year renewal. Under the terms of this law, every copyrighted piece of content created before 1987 would now be part of the public domain. You can imagine what having Star Wars, Indiana Jones, and the vast majority of the Marvel Universe — to say nothing of every Disney and Buena Vista film before Who Framed Roger Rabbit — would do to the House of Mouse’s bottom-line. We are talking serious money here, and the key to this vault is guarded exclusively by the scope of copyright provided by law.
It comes, then, as no surprise that the copyright industries have thrown real resources at the fine art of “regulatory capture.” Since the 1790 Act, there have been five major revisions to copyright law in the US (and many minor ones) and each and every one has extended the scope of the coverage and the length of the term of copyright.
Six, if you count the TPP which now extends the term to:
“70 years following the death of a natural person; for a non-natural person the term is not less than 95 years from the end of the calendar year of the first authorized publication of the work, performance of phonogram. Failing such authorized publication within 25 years from the creation of the work, performance, or phonogram, not less than 120 years from the end of the calendar year of creation.”
TPP is not an anomaly. The past few years have witnessed a rising wave of acronym laws: PIPA, ACTA, SOPA, TPP. The most troubling aspect of these laws is not their content but the degree to which their existence reveals the deep corruption and capture of lawmaking by intellectual property companies. In 2012, the Internet erupted in protest against SOPA and PIPA — barely inhibiting the passage of two absurd laws that in a well functioning legislature wouldn’t have passed the laugh test.
But grassroots protests can’t hold back this tide for ever. The feedback loop between monopoly and regulatory capture leads to a fundamental corruption of governance itself. And if the niche is large enough to support and sustain powerful enough “monopoly entities,” the feedback loop can reach a sort of escape velocity in a plunge towards legal madness. Hence the TPP.
This is bad. But the problems here go even deeper.
Intellectual Property and the Corruption of Sense
Elsewhere I discussed the profound importance of shared narrative to our individual “sensemakers” and to our collective culture. Like it or not, in an era of mass media, stories like Star Wars, Superman and Harry Potter are some of the best and most potent examples of our collective mythology. There is a reason why conversations about “Darth Jar Jar” capture the zeitgeist. These stories, reaching billions of people, are the modern equivalent of the Odyssey, the Vedas and the Book of Job.
In the contemporary environment, they play a major role in how we collectively knit together the fabric of meaning and should be the object of careful stewardship.
Instead, under the intellectual property model, we hand off our culture to increasingly giant niche constructing corporations. And for these monomanical, immortal sociopaths, meaning is nothing but a resource to be extracted. Handing off the stewardship of our Narrative to a tiny cohort of media companies turns our culture into a commodity which is strip mined for whatever value they can be extracted. This is not just sad. It ultimately unwinds our ability to find shared meaning and is a recipe for cultural extinction.
Intellectual Property and the Great Transition
All this would be bad enough to require a deep reexamination of our concepts of intellectual property and their relationship to governance and culture. However, we are not yet still at the root of the problem. If we stop here we might consider ways to modify or redesign intellectual property that are less subject to political capture or less corrosive to narrative and meaning. This would be a mistake.
The problem is not how we implement intellectual property. The problem is the idea itself. The collapse of intellectual property is part of a bigger story: the rise of what I call the “anti-rivalrous economy”. This represents a major disruption of the ways that we make our way in the world. Among them is a recognition that we can no longer play make believe with the legal fiction that ideas can or should be treated as property.
I’ve discussed many of the aspects of this disruption elsewhere. And if you’d like to consider it more carefully, I recommend taking a look. But the summary for present purposes is this: our entire economic and legal model is built around rivalrous things. Rivalrous, as in, we can rival each-other for their possession. If I have it, you can’t and if I consume it, it is gone forever. Food, water, energy. For ten thousand years the creation, distribution and control of rivalrous goods and services was the raison d’etre of most of social organization.
For the anti-rivalrous, if I have it, you can also have it without my losing it and the more people who have it, the more powerful and valuable it becomes. Language, math, music, ideas. These are fundamentally different things, with fundamentally different dynamics.
For ten thousand years this difference didn’t matter all that much. The creation and distribution of rivalrous things was overwhelmingly more important to the success of a society than its ability to promote and sustan the anti-rivalrous. But every day, more and more of our lived reality is moving from the rivalrous to the anti-rivalrous domain.
Of course, this process didn’t start in the 21st century. In fact, the emergence of the concepts around intellectual property were themselves a response to the rising sense of the importance of “science and the useful arts” to the world of the Enlightenment. We can see intellectual property is an effort to use legal legerdemain to make the anti-rivalrous quasi-rivalrous and, therefore, “work” in an economic and legal system fundamentally designed for a rivalrous world.
The approach works, but only just. And as more of our world moves to the anti-rivalrous, the system is beginning to break-down. This is because the anti-rivalrous fundamentally violates the first law of economics: the law of supply and demand.
Contemporary economics makes sense when there is a real constraint on supply and, therefore, a real need to rationalize the allocation and production of scarce goods.
This is where the famous supply and demand curve kicks into action. When supply is limited and demand high, prices rise and either quash demand or motivate producers to enter the market to increase supply. Or, vise versa, when supply outstrips demand, prices drop to either increase demand or push suppliers out of the market. The elegant balancing act of the invisible hand.
But anti-rivalrous goods are not scarce. In principle anyone who wants to listen to some given digital song or use some software app could get access to it at effectively zero incremental cost. In a deep way, supply is unlimited. As a consequence, it is impossible for the law of supply and demand to set a market price.
In fact, if we want to maximize social value then we should ensure that every kind of anti-rivalrous good is available for free. In the anti-rivalrous world, the more people who have experienced something, the more valuable and powerful it becomes. If we slap a price on a copy, even a very low price, then some people won’t or can’t access it. As a result, we eliminate the benefit to everyone who isn’t willing to pay the price and, worse, culture as a whole loses the benefit of the “network effects” and “increasing returns” that are part and parcel of anti-rivalrous goods.
This is a serious situation, because it is not about a wrinkle or a tweak to intellectual property law or media company business models. The differences between the rivalrous and the anti-rivalrous are fundamental. The world of things and the world of ideas are profoundly different and one cannot be addressed with tools designed for the other.
In fact, this is a dead serious issue, because right now the expansion of the “the digital age” is converting everything that it can from rivalrous to anti-rivalrous. First newspapers then music then movies then books. Soon, powered by 3D printing and various forms of automation, everything from pharmaceuticals to cars will be made anti-rivalrous. Even the people who drive the cars are being replaced by anti-rivalrous software.
It is not clear when or where the line will be drawn or how much of what we do and what we use will be moved into the anti-rivalrous domain. But it is clear that, if it has not already happened, for the first time in human history we will soon be in a world where the anti-rivalrous is much more important than the rivalrous. The shift from a rivalrous to an anti-rivalrous economy necessarily implies and requires a fundamental shift in everything about how we go about “doing economy”.
And this is why the intellectual property regime is producing madness. IP companies are at the sharp edge of the transition and these companies can feel their hard won niche being challenged on every front. And while it is not clear what lies on the other side of this transition, it is pretty likely that it will not be good for the share price of DIS or TWX.
Accordingly, whether they are doing so consciously or not, these entities are fighting the future as hard as they can. And, like the fading feudal aristocracy, their struggle for individual survival is creating a bloody mess for the rest of civilization.
I wish I could say that these legacy models are simply doomed to the dustbin of history. But history doesn’t tell that tale.
Historically, powerful elites have often been faced with fundamental transformations that threatened their power. And over the millennia, they have broadly chosen from two paths:
- To give up their control and allow society to reorganize around new forms
- To attempt to conserve the existing order at all costs
The former choice involves significant pain for powerful elites. It requires tremendous foresight and political will. It is never guaranteed to be successful. Many things can happen when long-bound energies are released in an institutional reconstruction. As a result, it is quite rare.
The latter choice almost always appears to be the most reasonable and least risky path. Yet, if a critical mass of elites bind themselves to this path, it ultimately results in the death of their society. This is because this path requires an intensification of “delusional” mechanisms that distance society from reality and eventually deplete its ability to operate. Like a junkie who yokes his life to his junk, the society moves from creative to conservative to reactionary. To death.
Depending on the political will and political power of the institutions maintaining their addiction, this death can be very quick and destructive (e.g., the French Revolution) or can potentially be delayed for a very long time (“zombification”). However, once a society moves to full closure — like any entropic environment — its fate is largely, although never absolutely, sealed.
The powers that have gathered around intellectual property in the last century are a major force in the current global institutional order. If they dig in, as they appear to be doing, they could well tip us all into a potentially disastrous future. So, what is the alternative?
A major part of their argument (and, perhaps, their struggle) is that so far there isn’t one. We currently don’t have any good ideas on how to “promote the progress of science and useful arts” other than patent and copyright. After all, if we can’t put a price on a copy of a song, how will the record label (er, “artist”) get paid. And as the RIAA rather disingenuously one asked, “if artists aren’t paid, why will they continue to make music?”
Well, then, let us see if we can present an alternative. Of course, given the novelty and the complexity of the problem, we aren’t going to be able to deliver a complete solution. But perhaps we can at least find a step on the right path.
So, how can we efficiently and effectively promote the creation of anti-rivalrous things like science, art, design and music — without making recourse to patent and copyright? To answer that question, we will have to free our minds of the clutter of contemporary rationalizations and grapple directly with more foundational things like human nature.
Fortunately, when it comes to promoting creativity without recourse to intellectual property, human nature is actually pulling strongly in our favor. It turns out that, far from being necessary to motivate creative work, things like monetary reward actively inhibit creative and innovative work. Doing creative work is intrinsically satisfying and, as generations of artists could attest, getting in the way with extrinsic rewards disrupts the process of creativity by turning inspiration into commodity.
Instead, as we are beginning to discover, unless they are actively inhibited from doing so (by, say, starvation), creative people will create without any external motivation at all. In fact, rather than requiring a reward, optimal innovation involves satisfying a very different mix of needs:
Autonomy: people are at their most creative when they have agency over what they spend their time on, where they do it, and with whom and how they work.
Purposeful and Fulfilling: people are at their most creative when they feel like their efforts are connected to a cause greater and more enduring than themselves.
Masterful: people are at their most creative when they are riding the edge of mastery; challenging themselves in ways that make them grow and become more capable.
Looked at from this perspective, intellectual property and extrinsic motivation mechanisms are just two components of an entire organizational culture that was not well designed for innovation.
Far from being a problem, the collapse of the intellectual property regime and the set of economic models it is connected with presents an extraordinary opportunity. When it comes to creativity and innovation, we are still dominated by institutional frameworks that were born in and around the Agricultural and Industrial revolutions. While these revolutions represented huge (although by no means universal) upgrades to human wellbeing, they were designed to organize and motivate in a fashion that is broadly inhibitory to creativity and innovation.
Accordingly, it is entirely reasonable to expect that a social and economic model that is well designed to promote and share creative, anti-rivalrous, work would generate a major increase in innovation. And in turn, this would result in an increase human productivity, wealth and wellbeing that would make the Agricultural and Industrial Revolutions blush.
So, how can we deliver on this promise? What kind of structure could we imagine putting in place to optimally promote creativity and innovation? I propose the following:
A Universal Basic Income. As I have mentioned several times, I consider this to be “baked in” to at least the transition to an “Abundance economy”. It is conceivable that within a generation or two of shifting to an Abundance framework, we will no longer have need of a Basic Income — but for the immediate term, it is the best answer. Ideally, I think that the UBI should empower actual autonomy — it should be no-strings attached and provide enough resources for an individual to live a reasonable life with no additional income. I’ll have to write another post soon on precisely how I see this rolling out (and how we pay for it), but in the meantime, I point you to the excellent work of Scott Santens on the topic.
For those who are paralyzed by cynicism, I would suggest taking a look at the history of the UBI concept. I first came across it decades ago and while the idea had real currency in the 1970’s and institutions like the Basic Income Earth Network have been around since the mid 1980’s, up until recently it appeared to be as unlikely as marijuana legalization or gay marriage. But in the past decade, this notion has gone fully mainstream. This is good news.
An Attribution and Reputation Architecture. A core component of an anti-rivalrous economy is reputation. When we say that creativity is intrinsically motivated, we mean that it is motivated by a rich mix of deep human needs. Things like esteem, access, collaboration and inspiration. In order to ensure that these “social currencies” flow in the right directions, it is of utmost importance that the actual creators behind the best ideas and expressions are reliably and accurately identified.
In addition, and perhaps more importantly, an attribution architecture is necessary in order for us to maximize collective intelligence. The magic of the anti-rivalrous comes when it benefits from network effects, increasing returns and the like. And this requires that we, as a society, have a high quality understanding of what mixes of people (and other factors) lead to what kinds of creativity and innovation.
Innovation Money. This is an idea I had years ago. It is rough and querulous and generally not fit for mixed company. But if you’ve made it this far, I’ll assume you are game.
The notion is this. Imagine that everyone is issued a “digital wallet” and that every month $500 of a special kind of digital money is automatically deposited into everyone’s wallet. What makes this money special is that it can’t be spent. Instead it can only be pledged. Specifically, it can only be given to “creative projects” that commit to sharing all of the results of their work into the public domain. Once the money is transferred, it becomes “unlocked” and converts into regular old money that can be spent freely.
The result of something like this would be a collective investment in an entirely open and generative culture that is distributed entirely by people at the edge using their own values, discernment and knowledge.
Today, in the US, we spend about $1Tn every year on anti-rivalrous production ranging from motion pictures to fine art to all forms of journalism and both university and industry science and research. This is a big investment, but consider how very much of it is wasted, misdirected and extracted. My guess is that we could do better with less than 30% of that level of investment. Even 10% if it is pledged to the right people without any overhead or distraction.
Would there be graft, corruption and mismanagement in this “innovation money” model? Naturally. But when you compare it to the present model, it is reasonable to expect substantial gains in resource allocation efficiency and with the enormous benefit of doing so without invoking dangerous “monopoly feedback organisms”.
Equally importantly, the result of this innovation money approach would be the direct and active engagement of everyone in our society in the ongoing decision of where and how to orient our collective intelligence. If you combine this with a reputation architecture that can identify and point out both who is doing high quality creative work *and* who is doing a good (or bad) job allocating resources towards the creation of high quality work, you get a framework of very strong social motivations for people to at least try to do a good job allocating their innovation money.
Should we expect the average Joe to be able to make good decisions on where our intellectual resources are pointed? Here, I guess, is where I still have a deeply American ethos. I do. At least I think that he (and she) can. At the very least, I think he and she can do a much better job than our friendly neighborhood media behemoths are doing.
When I look around at contemporary culture and at the vacuity and hopelessness of much of it, I am tempted to condemn the average person. But then I recall the inexcusable barrage of shit that we have collectively allowed each other to be subjected to since childhood and I recover a narrow hope.
I honestly believe that an average person — if left unmolested and unabused by their own culture — is naturally attracted to and fully capable of producing beauty, knowledge and meaning. Accordingly, I conclude that the failure of contemporary culture is not the average person, but an architecture that heedlessly exploits our shared meaning and recklessly undermines our capacity for making sense and meaning of the world.
Circling back to the beginning of this post, I get the sense that time is of the essence. The modern world is beset with enormous challenges and we have every reason to believe that they will get harder and harder as the 21st Century progresses. Even at the top of our game, we will be challenged to navigate this century in good order. If we attempt to do so while mired in an addiction to obsolete business models, we are going to have a very hard time indeed.
Innovation, the generation recombination of ideas, is our most powerful tool as a species. While it might seem politically difficult and even socially uninspiring compared to the many other challenges we have around justice, violence, employment and Caitlyn Jenner, I would like to suggest that pursuing a major dismantling of intellectual property and the reclaiming of the world of ideas is one of the most important places we could focus our energies in the coming decade.
