Intellectual Property Rights

by Michael Patrick O'Leary

I have reworked an article originally published in LMD (Lanka Monthly Digest) in 2011.

Under intellectual property law, owners are granted certain exclusive rights to a variety of intangible assets such as musical, literary, and artistic works; discoveries and inventions. According to Article 27 of the Universal Declaration of Human Rights, “everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author”. The natural rights argument is based on Locke’s idea that a person has a natural right over the fruits of his or her labour. Utilitarians argue that a society that protects private, including intellectual,  property is more effective and prosperous than societies that do not.

The earliest recorded historical case-law on copyright comes from ancient Ireland. The Cathach is the oldest extant Irish manuscript and the earliest example of Irish writing. It is traditionally ascribed to Saint Columba as the copy of a Psalter lent to Columba by St. Finnian. A dispute arose about the ownership of the copy and King Diarmait Mac Cerbhaill gave the judgement “To every cow belongs her calf, therefore to every book belongs its copy”.

The Berne Convention was first established in 1886 and  relates to literary and artistic works, which includes films. The convention, to which Sri Lanka is a signatory,  requires its member states to provide protection for every production in the literary, scientific and artistic domain. A core principle is that each signatory would give citizens of other member states the same rights of copyright that it gave to its own citizens. The stated purpose of the convention is protection  of authors rather than the protection of publishers and others.

Sitting down to watch a DVD one is  assailed by a noisy prologue asserting: “You wouldn’t steal a handbag, you wouldn’t steal a TV etc”. There is an irony in this strident propaganda against pirate DVDs because the disc on which it was included was purchased in Colombo’s Majestic City for 230 rupees. These pirate emporia are openly advertised in reputable publications like LMD. In some establishments the very latest movies are available for as little as 60 rupees. On one occasion, I stood next to a policeman while making my illicit purchases.

The protection of a creator’s creation  might at first seem to be an unalloyed good. However, Richard Stallman, founder of the Free Software Foundation, believes the term “operates as a catch-all to lump together disparate laws [which] originated separately, evolved differently, cover different activities, have different rules, and raise different public policy issues”.

In 1980, Ananda Chakrabarty won a US Supreme Court case allowing him to patent a bacterium to digest oil that he had genetically engineered. Five years later, the US Patent and Trademark Office allowed genetically modified (GM) plants, seeds and plant tissue to be patented. By 1987 animal patenting was permitted. Today human gene sequences, cell lines and stem cells are patented. Since the mid-1990s, Monsanto has sued 145 individual US farmers for patent infringement in connection with its genetically engineered seed. One farmer received an eight-month prison sentence for violating a court order to destroy seeds. In India, thousands of farmers have committed suicide because of Monsanto’s policies.

Eben Moglen ,  professor of  law  and legal history at Columbia University writes in his dotCommunist Manifesto: “Society confronts the simple fact that when everyone can possess every intellectual work of beauty and utility–reaping all the human value of every increase of knowledge–at the same cost that any one person can possess them, it is no longer moral to exclude. … the bourgeois system of ownership demands that knowledge and culture be rationed by the ability to pay.”

“Anything that is worth copying is worth sharing.” His other quotes: “The more we give away, the richer we become.”

Eben Moglen  says , “‘When everybody owns the press, then freedom of the press belongs to everybody’”. This is the world of citizen journalism. It is great for us journeymen writers  to have access to Wikipedia , Google, Word Press and Questia so that we can easily research the drivel we inflict on the world. A lot of this is free to us , so we are grateful.

It came as a shock to me when I saw my  own immortal words in print without payment. It was actually a pleasant surprise to see my work in the New York Times. Quite a few of the articles I wrote for the Le Monde diplomatique blog appeared in publications and websites all over the world. The New York Times was perhaps the most prestigious, but it was also good to see my name in the International Herald Tribune and the Scotsman. It seems that, without my knowledge Agence Globale was syndicating my unpaid work on behalf of Le Monde diplomatique. I have never been able to establish whether the New York Times etc  paid Le Monde diplomatique for my work.

It was  worse   when my articles were published without even a mention of my name, let alone payment being made. This happened with an article in the Sri Lankan Sunday Times about the Environmental Foundation Ltd (EFL). I made a complaint to the Press Complaints Authority but it seems the fault lay with EFL who allowed the paper to accept my article as a press release. The Sunday Times did eventually pay me.

It came as a worse shock when I saw some more of my words in print with someone else’s name at the top. This happened when the Sunday Leader, which had never responded when I submitted articles, published word for word an article by me on animal welfare with the name of one of their staffers on it.

People willingly write for free for Huffington Post. The divine Arianna became a very rich woman when she announced  “a merger of visions” with AOL which netted $315 million. “And, of course, thank you to our HuffPost community, whose engagement, enthusiasm, loyalty, and support have been the foundation of HuffPost‘s growth. We can’t wait to begin the ride.”

By the way, to my knowledge, after a good deal of research, I can confidently state that there are no longer any retail outlets in Sri Lanka that sell legitimate DVDs or CDs. One can order them from Amazon but they will be subjected to prohibitive shipping charges and import duties. Because of various emergencies and curfews the postal service has become less reliable. More than one DVD I ordered from a legitimate online retailer took over a year to reach me. The pirates provided a useful service. There were many films that were not interesting enough to me to endure a great deal of expense and inconvenience but worth trying out for a small price.I do not think that by doing so I impoverished the likes of Johnny Depp or Simon Pegg. The number of pirate shops has declined with the increased popularity of streaming. However, as Netflix itself goes into decline perhaps the pirates will return.