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

IP strategist and thought leader Joren De Wachter on IP is a thought crime at TEDxLeuven – Transcript

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Joren De Wachter – IP Strategist & Thought Leader

Today is a very special day for me. And I would like to share that day with you in a traditional way by singing a song.

So I’m going to ask you to share a song with me. I think you know how it goes. So, on the count of three if you would sing with me. One, two, three.

♪ Happy Birthday to you ♪

♪ Happy Birthday to you ♪

♪ Happy Birthday, dear Joren ♪

♪ Happy Birthday to you ♪

Thank you. That was lovely.

Now I have two things I have to confess to you. The first one is that, although today is a special day for me, it’s not actually my birthday.

And the second confession is that, by sharing this song, by performing publicly, we are all potentially liable of going to jail for committing a crime, because the song “Happy Birthday to You” is still under copyright.

And this is what I want to talk to you about today. I want to talk to you today about copyright and patents, those systems that have been developed in order to promote innovation and creativity.

And this is the first point I want to make, which is that the purpose of these legal tools is to promote innovation and creativity, to make sure we have more of it. The protection they offer, the exclusive rights they give are only the tool to get to that point.

So, if we look at the system, we need to see: does it actually give society more innovation and more creativity? 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.

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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.

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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.