There are many commentators who have appreciated - in the words of James Boyle - that we are in the middle of the “second enclosure movement”, which he sees as exemplified by the recognition of patent rights in human genes. Peter Drahos and John Braithwaite draw a parallel between medieval feudalism and what they describe as “information feudalism”. Under the earlier variety, a lord of the manor exercised not only private power by virtue of his ownership of land, but public power, though a system of manorial taxes, courts and prisons.
In the modern form of feudalism, the transfer of intellectual commons has been to media conglomerates and integrated life sciences corporations, rather than to individual scientists and authors. The effect of this, they argue, is to raise levels of private monopolistic power to dangerous global heights, at a time when States, which have been weakened by the forces of globalisation, have less capacity to protect their citizens from consequences of the exercise of this power.
Similarly, William Cornish entitled his 2002 Clarendon Law Lectures Intellectual Property: Omnipresent, Distracting, Irrelevant? in order to highlight the major dilemmas which enmesh intellectual property: omnipresent - to capture the case where intellectual property rights appear to be “spreading like a rash”; distracting - to describe rights which achieve few of their intended purposes but which cause persisting itching; irrelevant - to refer to technology which in practice seems to render some forms of intellectual property nugatory.
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Why have these developments occurred? From an Australian perspective, three major factors have combined to generate the pressures to which the creative commons movement is a response.
The first, obviously enough, is the power of interest groups whose economic well-being depends upon the privatisation of intellectual property resources. In general, the interest groups favouring the extension of intellectual rights are very well resourced, effectively organised and politically powerful both at a national and an international level. Often they can enlist the support of national governments in multilateral and bilateral negotiations.
The US, in particular, has used trade negotiations to ensure “adequate and effective protection” for the intellectual property of US corporations in other countries. Trade benefits may be (and often are) withdrawn from countries which fail to grant such protection. The US has played a leading role in the negotiation of multilateral arrangements, such as TRIPS, which have done much to advance the interests of the holders of patents, copyright and other forms of intellectual property.
I do not mean to suggest that there are never powerful interest groups opposing the expansion of intellectual property rights. The history of copyright law, for example, is replete with battles between opposing interest groups, such as music publishers and the manufacturers of tape recorders and other electronic equipment. Even so, the struggle is often unequal.
A second force for extending the boundaries of intellectual property are bilateral and multilateral international arrangements. Like the FTA, these agreements often require the parties to create new species of intellectual property or to enforce existing rights more effectively. The shape of much of Australia’s intellectual property law has been determined by international agreement. Since the Commonwealth Parliament, pursuant to the external affairs power, can legislate to implement international agreements, the effect is that there is virtually no limit on Parliament’s power to privatise intellectual resources.
Technological change is a third powerful force, since technological developments can quickly render obsolete or ineffective existing laws and enforcement mechanisms. As copyright holders, for example, realise that they cannot protect their interests by purely technological means there emerges, in the words of Professor Cornish:
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A whole set of distinct demands for higher legal fences as part of the digital agenda, which politicians press at the behest of industry lobbyists and their star writers and performers.
When the new technology and international treaty obligations coincide, the pressures for the extension of intellectual property rights become almost irresistible.
The privatisation of intellectual property resources raises issues that transcend the particular concerns of intellectual property lawyers and their clients. They go to the nature of freedom in a society which, in equal measure, creates opportunities for astonishing innovations and severe restrictions on creativity.