The IP Mess

I’ve tried writing this article countless times. Every time, I seem to get caught up in minutiae, and it simply becomes something like a half-assed college report on Intellectual Property (IP). So, I’m going to take a different road: this will be more an opinion piece than a research paper. While this blog is a forum, I do try to not make it boring; doing a fully-cited and researched brain dump would certain work against that aim. Even though this will be superficial, please trust that I do actually have a few decades of informal study on the topic under my belt.

As an IP creator, my disdain for IP legislation is born from the perspective of those who do the actual genesis of art and knowledge. I have no problem with laws that reasonably protect the right of those who imagine something, and then produce a work that never existed before. Where I have a problem is that most of the holders of IP, now, are not the creators…they are entities that exist solely for the purpose of shamelessly profiting on the works of others.

Here’s a fun little tidbit most people don’t realize: in most cases (if not all), in order to sell a script to Hollywood, the writer must sign over all their rights to a script. And not just the script, but the characters, sequels, stories set in the same world, etc. Many publishers try demanding this as well (and often get it). Yes, the writers get money for this sale (and sometimes those mythical "back-end" points), but with only scant few exceptions, it really doesn’t come close in value to what the material was worth (assuming the material was any good).

Or, on the other side, think about an author’s heirs. They can profit for years (if not several lifetimes, given increasingly generous copyright laws) on work they never created. Why is this bad? Because it makes it impossible for others to build on the work of giants, as has historically been the case.

See, the insidious thing about our increasingly draconian IP laws is that it holds back progress. Traditionally, authors had a fixed period to protect their work before it became public domain. Once in the public domain, anyone could do with a work what they wanted. Parody? Great! Retell the story from the perspective of a different main character? Fantastic!

But IP hurdles don’t simple obstruct authors. Think of computer programmers. Traditionally, programmers learn by reading the code of others. Programs are improved by building on that work, or recoding it into something better. Current IP laws stifle that…not only because it allows companies to lock up their code (which, in some cases I’m not against…people to need to make some profit, after all), but because it allows predatory companies to gobble up patents that they had no hand in creating, and thereby use them to extort others.

So here’s what it all really boils down to for me. I would like there to be sane IP reform. Here are some suggestions:

• Copyrights last for the life of the original author, plus ten years; or fifty years, whichever is greater.
• Copyrights exist across all borders.
• Original authors maintain their rights to material for the life of the copyright regardless of any other contracts, although publishing contracts for works in print can be made exclusive.
• Work-for-hire agreements do not wrest copyright protections for the contributing writer(s) who substantially create a work…they simply list the employer as an equal collaborator (i.e. they can’t earn more than the other authors (combined) on a work). However, the entity holding the work-for-hire can have sole responsibility for how a work is used.
• Work-for-hire copyrights last for fifty years.
• Mathematical processes may not be patented, but items that use those process can be.
• Software can be patented for clearly innovative works. The patent must be awarded on the basis of review by a board of experts in that particular field where the software claims to be innovative.
• Business processes may not be patented.
• Software patents, on those rare occasion they are granted, last for five years as protected code (i.e. not for public viewing); and for an additional five years as license-mandated open code (i.e. anyone can use the code provided they acquire a license, said license to be at fair-market value).
• Patents must apply to an end product, not to the processes involved in making the end product.
• Patents on incremental improvements, especially those made by the patent holder or affiliates, must be reviewed by a board of experts in the field to determine if this is a truly new and useful innovation, or simply a ploy to extend the life of an existing patent.
• Non-software patents are in force for seventeen years.
• As with copyright holders, patent creators cannot lose their rights to the patent while it is in force.
• As with copyright holders, work-for-hire patents have the business entity as a co-inventor.
• Patents may not be transferred to another business…the remaining term of the patent reverts to the surviving patent holders.

You might notice a distinct theme…I’m interested in protecting the rights of the creators. Isn’t that, after all, what copyrights and patents are for? But what about the companies that give a home to creative-types, don’t they deserve to profit from their investments? Of course they do. They are free to make their licensing agreements as is the case now…they just can’t demand that creators forfeit their due rights. What this also does is prevent those sorts of leeches who profit solely on the works of others. You know the ones I mean: the ones who buy all the patents from other (usually failing) companies, and then cull through them looking for people to sue.

One of the biggest jokes of the digital age is how the music studios have been shouting that piracy is taking all of this money from the artists. We’ve all seen the breakdowns of how much of the $17 MSRP of a typical CD goes to the artist (think cents, not dollars). The advent of recordable CDs didn’t create piracy, but it did put on display the emperor’s clothes. Finding out how poorly the creative community was paid, combined with the new knowledge of how inexpensive it actually was to produce a CD, opened the eyes of a lot of people…just not those who had been making most of the money. It took them far too long to realize (if they actually have) that if you price the material fairly, people will buy–iTunes is a prime example.

What the digital era has done is fully expose the rapacious practices of these IP companies. The true innovators aren’t the ones being rewarded. My suggestions are simply to shift some of the wealth to where it honestly belongs without forcing the creators to give up their legal rights to do so.

Here’s the hard part: getting your representative in Congress to listen to the creators, and not just to the IP companies who make so many generous political contributions.

To quote from The Legend of Billie Jean: "Fair is fair!"