IP is a thought crime by Joren De Wachter at TEDxLeuven (Transcript)

And we’ll look at the system from three angles, asking three questions.

The first question is: “Is the theory valid?” It is the argument of the head.

The second question is: “Does it actually work? Is there empirical evidence?” It’s the argument of the gut.

And the third question is: “Is it fair? Does it feel right?” It is the argument of the heart.

Because when the head, the heart and the gut are aligned, we know we have a good system.

So let’s look at the theory. Why would we go to jail if we share “Happy Birthday to You”? Well, the reason you would go to jail is to promote the creativity of the authors. And you can see the authors there. Unfortunately, they’ve both been dead for several decades and the song is almost a hundred years old.

So obviously that makes no sense. The idea that you would promote the creativity of dead people by sending a lot of people to jail because they share what they’ve made is obviously absurd.

But, those are not the two most important flaws in the theory I want to talk you about.

For the first flaw, I need you at this time not to sing, but to listen carefully.

[Music starts-

♪ Good morning to you ♪

♪ Good morning to you ♪

♪ Good morning dear children ♪

♪ Good morning to you all ♪ – ]

Now you will have recognized this song. It sounds very much like “Happy Birthday to You.”

But if I were to ask people here whether you think this is a copy or something new, whether it’s an acceptable innovation or a piracy copy, a lot of people would disagree. And it would be difficult to say if this would be allowed or not. It gets us an important distinction. Because if you’re on the wrong side of the opinion, you’re a criminal. If you are on the right side, you are a creative genius.

And I think that doesn’t work, because the distinction of intellectual property theory makes between a copy and an original, the distinction it makes between imitation and innovation does not actually work.

In reality, anybody who has ever created anything knows that any innovation starts with and consists largely of a lot of imitation. And most imitation leads to innovation. So you need both of them to work together. They are part of the same continuum.

But intellectual property does not agree. It says “No.” When you look at innovation and imitation, you have to make a sharp separation. One of them is good: innovation. One of them is bad: imitation. But that doesn’t work.

The second flaw in the theory that I will show you today is represented by this slide. You will see the artist. And the artist it is said needs protection before he can get to his audience. But in between the artist and the audience there is somebody else. There is this middle person: the distributor.

And what we see in practice is that it is the distributors who actually take all the money. Artists on average earn 6% of their income through the sale of records. But Warner Music Group, who holds the rights to “Happy Birthday to You” earned $2 million in royalties in the year 2008 for a song that was written almost a hundred years ago by people who have been dead for several decades.

And the interesting point is that they are not mentioned in the theory. So, we have major flaws in the theory.

What about the practice? How do we know if intellectual property actually provides us with superior innovation and creativity? And here we have a slight practical problem, because in order to find this out we would have to build a parallel universe because we’ve had intellectual property for several decades. So, you would have to imagine to build a parallel universe with wormholes between one universe with intellectual property and one universe that is free of intellectual property. And with the current state of technology, that’s still not possible.

Yet, there is one industry in which we have a competition between a system with intellectual property and a system that is free of intellectual property. And that is the software industry.

In the software industry, we have people like Microsoft and Oracle who charge license fees. They use intellectual property to charge for their technology. And we have open source, which is represented here by the Penguin of Linux, which prohibits the use of intellectual property in their business model.

And what we see for more than two decades is that open source has consistently out-innovated proprietary software. So the only real empirical evidence we have strongly suggests that intellectual property blocks or slows down innovation and that the system that is free of intellectual property has superior innovation.

You will say, “What about healthcare?” We would all die horrible deaths if we didn’t have the patents for the pharmaceutical industry to keep us healthy. Well, not so. When we look at the facts, we see something different.

Regardless of the source you take, whether it is the British Medical Journal that crowd sourced its readers or the American government with the Center for Disease Control and Prevention, when the most important breakthroughs of medical science and healthcare are listed for the last hundred years consistently we find that more than 9 out of 10 of those breakthroughs came about without any interference of intellectual property or whatsoever.

What is more, when we see how the pharmaceutical industry uses the patents they have, we see something very different. More than 75% of all the applications for new drugs in the Food and Drug Administration in the United States are for compounds that are known. And what happens is that the research focuses on changing them a little bit, not too much, so they stay efficient against an existing disease but just enough to patent them again. These are called “Me Too” patents.

And more than three-quarters of research goes into “Me Too” patents, which means that the money the pharmaceutical industry gets through the monopoly that we give them with their patents is used not to find new cures, but to develop further monopolies. And that doesn’t seem very fair, which brings me to the third argument, the argument of the heart.

Is intellectual property a fair system? And here I am going to take an evolutionary argument, an evolutionary approach.

Humans are different from our closest relatives, the bonobos and the chimpanzees. And one of the ways in which we are fundamentally different is that we have a much richer and broader culture.

Now, how have we come about building this culture? One key characteristic that has been essential in enabling us to build that culture has been our ability to trust. Humans actually trust each other quite a lot. When we meet a stranger, we are not like chimpanzees. They fight. We are not like bonobos. They have to have sex to make sure the other person can be trusted.

Now, we have invented this pinnacle of human evolution, which is the business cocktail reception. One of the most difficult environments in which to survive. And everybody here has been to most of that.

So how do we build this trust that enables us to build this culture? We do it by sharing information and by sharing ideas. It is an essential human characteristic to share information and to share ideas with strangers.

Yet intellectual property theory tells us that this is wrong and we shouldn’t be doing this. We should own ideas. And we should charge for them. And we should protect them. I don’t think that that is right.

So why do we have this system? Why do we have this system that everybody says this is great, this is fantastic. All governments support intellectual property.

What I think we are repeating a mistake, that we made a couple of hundred years ago for the first time, when we had a system called mercantilism. And mercantilism was widely supported by all governments. And the theory said that trade was dodgy, import was bad, and export was good.

So what did they do? They taxed the import. But they forgot that one person’s export is another’s import, and the other way around. And we are making the same mistake today.

Let me show you the damage that this does. These are the books shipped today by Amazon based on the first publication date, and you can see it’s the 19th century. And this graph actually shows you the increase in first publications in the 19th century.

So what you would expect is for this graph to go further up in the 20th century, because the world population tripled and literacy rates went through the roof.

But, unfortunately, we have the sharp dividing line between the public domain and copyright. So what we see is a dramatic difference.

What does this graph mean? It means that 80% of the cultural production of the 20th century, which arguably is the most productive, creative, and innovative century in the history of mankind, is locked up behind the bars of copyright.

Don’t forget. If you copy, you are a criminal. And I think we should change this.

I think we should look at the system, and say, let’s take a song like “Happy Birthday to You” and play with it, let’s monkey with it, let’s modify it, let’s make a derivative, a ridiculous version without having to be afraid to be labeled a criminal or pirate.

I know we can come up with something like this:

♪ Huuuuum ♪

♪ Happy birthday to you ♪

♪ You live in a zoo ♪

♪ You look like a monkey ♪

♪ aaaaand… ♪

 

So what I think we need is the freedom to share and the freedom to innovate, to acquire the freedom to innovate, because I think we need it.

Thank you.

 

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