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IP law: undemocratic, totalitarian, and unethical
By Thom Holwerda on 2012-06-30 19:34:28
Yesterday, we were treated to another preliminary injunction on a product due to patent trolling. Over the past few years, some companies have resorted to patent trolling instead of competing on merit, using frivolous and obvious software and design patents to block competitors - even though this obviously shouldn't be legal. The fact that this is, in fact, legal, is baffling, and up until a few months ago, a regular topic here on OSNews. At some point - I stopped reporting on the matter. The reason for this is simple: I realised that intellectual property law exists outside of regular democratic processes and is, in fact, wholly and utterly totalitarian. What's the point in reporting on something we can't change via legal means?

I'm sure some people are shaking their heads in disbelief by this point, assuming this is yet another one of my usual overreaching nonsensical hyperboles just to drive some otherwise reasonable point home. In all honestly, I wish it was a hyperbole. The reality, however, is that thanks to the World Trade Organisation and something called the Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS), we, the people, have no democratic control over intellectual property law in any way, shape, or form.

First, a short history lesson. In 1886, the Berne Convention for the Protection of Literary and Artistic Works was first accepted, the first worldwide treaty with the intention of unifying and internationalising the various individual states' copyright laws. Three years prior, in 1883, the Paris Convention for the Protection of Industrial Property was first accepted. In 1893, the Bureaux Internationaux Réunis pour la Protection de la Propriété Intellectuelle (BIRPI) was set up to oversee these two treaties. The BIRPI was superseded in 1967 by the World Intellectual Property Organisation (WIPO).

This is where things start to go wrong. The WIPO is actually one of the 17 specialised agencies of the United Nations, and this posed a 'problem' for the United States, the European Union, Japan, and several other developed nations, because being a UN agency, every member state's vote counted equally. This meant that in matters related to IP, the world's developing nations could exert far more influence than developed nations. You know, democracy at work at the international state level.

To address this 'problem', the developed nations shifted IP regulation out of WIPO and into the World Trade Organisation with the Agreement on Trade-Related Aspects of Intellectual Property Rights, in 1994. This is essentially a re-implementation of the Berne and Paris Conventions, but coupled with international trade, and under an organisation more easily controlled by the developed world.

You may wonder - where's the bad part? Countries can just decide not to sign TRIPS, right? Well, no, not exactly. The most brilliant move corporations in the developed world have ever made is that they managed to get TRIPS tied to membership of the World Trade Organisation. In other words, signing and implementing TRIPS is a requirement for membership of the WTO. Since membership of the WTO is essentially a requirement for participating in international trade, not being a member is not an option for any modern country. Leaving the WTO is a death sentence for your economy.

The end result is simple. Even if a majority of voters in a country want a drastic reduction in IP rights to modernise IP law and adapt it to modern times, it simply cannot be implemented. This effectively means that copyright law, patent law, trademark law, and all other associated laws, exist in a protected legal bubble over which we, as voters, have zero democratic control. In other words, current IP law exists entirely outside of the democratic process - effectively making it totalitarian.

The moment you realise this, the moment you let it truly sink in that this far-reaching and incredibly complex set of legal constructs that affect almost every sector of our economy exists entirely outside of the democratic process and is, in essence, totalitarian - that's the moment it dawns on you: we're in a war we cannot win, because we already lost it decades ago.

This is why I stopped reporting on these matters rather abruptly. A free and open press (OSNews is a blog, but the point still stands) has a crucial role to play in the democratic process, but when something exists outside of that democratic process, what's the point of a free and open press? Am I supposed to write with starry eyes about how we should change our current insane IP regime when I know full well this is impossible? Am I supposed to ignore reality, or worse yet, lie to you?

Call it pessimism - I call it realism. Barring a cultural collapse or a world war, our current system where trade is intermingled with IP will not significantly alter or change. In fact, things like ACTA or SOPA? The next step is that they will simply be introduced as part of the WTO, just like TRIPS, or even as an amendment to TRIPS. Outside of any democratic control, they will be enacted in such a way that individual states cannot resist it, because doing so would endanger your WTO membership.

That's why I stopped reporting on these matters. You often hear people say, "If you don't like our current IP regime, change it! You live in a democractic country, right? Make your vote heard!" You can vote for all the pirate parties in the world, but it won't matter. It won't change anything, because it cannot be changed. Democracy is all fine and dandy, but when it endangers the corporate bottom line, they will find a way to circumvent it.

IP law is undemocratic and therefore unethical, and hence, there is zero reason for anyone to respect and abide by it. Do not what this unethical law tells you to, but do what your own sense of ethics compels you to. I have been doing so for a decade now, and I still buy virtually all of my content - TV, video games, music - because I want to reward those that created it.

The next time a patent troll blocks a product - don't worry. There's nothing you can do. Jump up, jump down, shake your fist, vote with your pencil or your wallet, but it won't change a single, damn, thing.

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