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A new feudalism of ideas

Symposium 2001

Burnemouth University, 26th June 2001 – 2.00pm to 5.30pm in the OVC Boardroom, 5th floor, Poole House, Talbot Campus.
with an opportunity to attend Professor Jeremy Phillips´ Inaugural Lecture and Reception at 6.30pm

Overview of Symposium

The regime of exclusive and transferable intellectual property rights in crisis

Property regimes constitute economies and shape societies. Under the private property premise underlying modern capitalism, ownership is exclusive and transferable. Over the last 200 years, creators and inventors, entrepreneurs and corporations, lawyers, politicians and judges have sought to forge a property regime of the mind to match private rights in land or other physical assets. Intellectual Property Law has grown from isolated pieces of regulation into a system integral to global trade arrangements.

Trade marks began as indicators of origin, today they are expressed as exclusive brands that can be sold, franchised or merchandised. Copyright began as a regulation of reprinting for 14 years, today industrial products derive their protection from the life span of an author (plus 50-70 years) during which all conceivable forms of communication, including adaptation, remain the prerogative of the owner (who typically is not the author). Patents began as a form of local protectionism, grew into an incentive to disclose, before turning into a strategic tool for manipulating competition (discovering the bargaining and retaliatory power of patent portfolios).

The process of propertization culminating in the TRIPs agreement of 1994 took place largely without public debate. Priority dates, mechanical royalties, the doctrine of exhaustion, even piracy campaigns have failed to engage the normative compass of citizens. Although few empirical studies exist about public intellectual property awareness and values, they appear to indicate a more permissive attitude well below the property threshold the law enforces (e.g. MORI focus groups for UK IP task force 2000).

While the track record of right owners translating lobbies into legislation has remained impressive, key events appear to suggest that a gulf has finally opened between intellectual property ideology and societal practice. In two recent court cases, the public engaged in normative debate and overwhelmingly sided with the infringers. In the Napster case, the Internet firm is likely to be held liable for infringing acts committed routinely by 60 million music users. In the South African government’s challenge to TRIPs in overriding the exclusive protection of patented AIDS drugs, 39 pharmaceutical companies bowed to public pressure and withdrew their case. Does 2001 mark a turning point in the propertization of ideas? Three possible scenarios are suggested as a basis for discussion.

  1. Intellectual Property Feudalism
    The trend toward widening and strengthening intellectual property rights continues, coupled with ever stricter legal and technological enforcement to overcome public disquiet. Rights will be increasingly concentrated in multinational corporations such as IBM, Microsoft, GlaxoSmithKline, Monsanto, AOL Time Warner, Bertelsmann, Disney or Sony. Unlike physical property, intellectual property can be simultaneously licensed to multiple users. This turns the knowledge economy into a new form of feudalism, in which property rights are not transferred but specific, temporary rights of use are granted.Anticipations: Microsoft licences, business method patents, terminator genes, academic journal publishing contracts, Music Industry SDMI proposal (celestial juke box)
  2. Intellectual Property Retreat
    Following public pressure, no new rights will be granted. Existing terms will be shortened or linked to audited investment cycles. Owners are forced to accept a regime overriding exclusive and transferable private property rights in many cases. Fair use exceptions and compulsory licenses become prominent regulatory tools.
    Anticipations: competition law intervention (Microsoft US Dept. of Justice antitrust case, European Commission blockage of music industry mergers), South African AIDS drugs case, Clinton/Blair human genome project statement, parallel importing of branded goods
  3. Intellectual Property Revolution
    A mass movement carried by Internet communities and less developed countries will sweep aside existing intellectual property laws. The WTO collapses.
    Anticipations: Antiglobalisation protests, Warez sites, file-sharing technology (Gnutella, FreeNet), mass piracy markets (e.g. Hong Kong/China)

PROGRAMME

14.30 – PAPERS (chair Ruth Soetendorp)

15.30 – COFFEE

16.00 – OPEN SESSION (chair Martin Kretschmer)
statements by invited participants on likely trends in their field of specialism, including:

  • Lee Marshall, Dept. of Sociology, UC Worcester
  • Millie Taylor, Performing Arts, King Alfred’s Winchester
  • Paul Heald, Allen Post Professor of Law, University of Georgia
  • Nikolaus Thumm, European Commission, Institute for Prospective Technological Studies, Sevilla
  • Puay Tang, Science and Technology Policy Research (SPRU), University of Sussex
  • Michael Blakeney, Herchel Smith Professor, Queen Mary IP Institute, University of London

FOLLOWED BY OPEN DISCUSSION AND SPECIAL ITEM:

  • Alan Story, Kent Law School, University of Kent, Canterbury: ‘What does intellectual property mean to you in your daily life?’ (The WIPO essay competition, launched 26 April 2001)”

17.30 – AFTERNOON TEA

18.30 – PROFESSOR JEREMY PHILLIPS’ INAUGURAL LECTURE
“ALICANTE RULES OK: The brave new world of trade marks in Europe”
Allsebrook Lecture Theatre
Reception to follow in the Thomas Hardy Restaurant