Intellectual property rights have been in existence since the Statute of Anne in 1710, designed to increase the number of books available and decrease their cost in order to benefit society. However, the question of the significance of these books and whom they presume to benefit reamins a contentious issue to this day. During this essay, I intend to prove that our current intellectual property rights are more like the practices of the fifteenth century due to their inbalance towards the rights of end users, in favour of monopolies and excessive prices charged by software authors and their companies.
Furthermore i will attempt to show that they are socially unjust and that the very rights these laws protect may be untenable, but in moderation a neccessary tool for the present. Essentially this essay is concerned with the rights of the individual or deontoligical view versus the rights of society or utiliterian view….
The Statute of Anne was designed with three considerations in mind, to compensate authors and thus encourage new works by giving them property rights, to encourage publishers to print books, and to decrease the price of books by putting a time limit of fourteen years on the rights, thus seeking to increase production and lower prices while adequetly compensating the publishers and authors in accordance with their costs. The time limit of these rights is how the balance between the rights of the author and end users are balanced.
Since then governments have taken a very strong Deontological view by extending the rights to the life of the author plus 20-50 years depending on country. As McFarland discusses1 in his essay these rights could be justified under Locke’s theory of labour and the personality theory. Locke’s theory seems reasonable although still raises some contentious issues and problems – under that premise for example, would the doctor who invented cpr or other live saving medial applications have IPR(intellectual property rights)?
McFarland also says that the personality theory can also be used as a justification for IPR which seems to fit with the Stallman example2, the problem being that most software is written by many people who are working for a company which will own the IPR, therefore the work has many personalities involved at that level. However, do the personalities in that persons life who have contributed to those personalities have rights too?
Furthermore once something is owned by a company should it have the IPR of a person, or should the rights remain with the original creators of the software? Nissenbaum3 also comments that if you take a deontological approach the IPR of the programmers should be respected. It is, on the other hand, arguably unjust and unfair to deprive a company of its IPR. In this case, how long should a company be able to hold these rights? In the 18th century it was 14 years yet now it is expodentialy longer.
Private companies argue that they need this period of monopoly in order to cover costs by preventing copying, arguing that illegal copying leads to loss of sales which in turn discourages production and increases price, yet the advent of the internet and monopoly prices steming from IPR has lead to piracy rates of up to 97% in Vietnam and a world average of 37% of all software4. The software industry is still very successful despite this. Therefore as Nissenbaum suggests taking a strong no copy approach that our current IPR provide approach does not appear to work.
Stallman goes further by suggesting that IPR reduces innovation and progress and that all software should be free. While this theory has been demonstated effectively in such cases as the Linux operating system, other software such as military software could not be developed openly and freely. Stallman takes a very strong utilitarian approach by believing that software should be free and available to everyone for the good of society, this is the opposite to the current IPR which is strongly in favour of the author and thus private companies.
A deontological point of view put forward by Nissenbaum5 would condem any copying on the basis that it violates the moral right of the programer regardless of the potential benefit for society, she also then asks the question as to what these rights are but goes no further. (1)Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits (2) Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
The Universal Declaration of Human Rights6 of which the whole of the United Nations has ratafied could be looked upon as the widest accepted source of rights, the article above clearly shows a balance between IPR and end users which is consistent with both deontological and utilatareon views. Whilst both authors and end users have rights under this article it does clearly state that you have a right if you are the author, rather than specifying a time period of the life of the author plus up to fifty years!
Bearing this, and the other points already discussed in mind it seems that our current legislation contrevenes our basic human rights. Furthermore a utilatarian such as Stallman could justify an even shorter period of rights than life of the author, possibly back to 14 years as in the Statute of Anne or alternatively using an economic measurement based on reasonable compensation. As discussd are current intellectual property rights are expodentialy inbalanced towards the author, they should only go as far as to adequetely compensate the author and encourage production but should not do so at the expense of society.