Monday, 7 May 2012

Intellectual Property: The Emperor's New Clothes?

As part of my ongoing investigation into intellectual property and the way it's being used, abused, and promoted online, I've done a bit of research into the industries that surround it with a view to finding out what makes it such an important part of online life — and why our governments are willing to deny us our rights in the name of protecting it.

As a patent troll once said, a patent is only worth the amount you're willing to spend on enforcement. I think it's reasonable to assume that the same principles apply to brands, designs, and copyright. Accordingly, a massive industry has grown up around this idea. Do a search on "intellectual property" online — click the WWW radio button on the search box above and do the search via that if you like — and you'll find over 344,000,000 results on Google. Most of those, you'll find, are for government agencies or private law firms that specialise in registration and enforcement. Honestly, I'd no idea it was that big. It explains a lot.

How it affects me

A cursory glance through my blog will show you that I love to produce my own artwork. Here, on the left, is a classic example. I do it mostly for the fun of it and also because, as a designer, I don't think it's fair to use other peoples' work without permission. Just taking someone's artwork and using it here could damage my reputation. It also says, "I lack the skills to produce my own work." Not the best if you're a designer.

However, my core business is web design, not cartoons or illustration. For that reason, if someone was to simply grab his majesty there on the left and use it on their own website or on Pinterest, it wouldn't represent a huge loss of potential income because I don't sell these. I'd gladly accept money for my artwork but I've not been approached by any clients with that in mind, so you'll only ever see them here or wherever I've posted them. I've done a brief IP audit and found that there's little, if any, value in my IP beyond my name — there's only one othere person who shows up in the search results and she uses a middle name to differentiate herself from me. An image search on Google for similar images brought up nothing but my own work, as did a Copyscape check. I'm the only one who uses my stuff.

I'm a sole trader. The buck stops here. The design work I do is basically CSS/HTML and a bit of PHP/Javascript. I put the copyright symbol on each job I do because I want to assert myself as the designer of the site, but am fully cognizant that if someone decides to rip off my design and use it for themselves there's not a lot I can do about it. What I can't be dealing with is someone else impersonating me. Spoof sites being set up for phishing purposes cause a great deal of trouble for the organizations targeted and I completely sympathise with their plight. If someone else decided to set up pretending to be me in order to cause trouble for me I'd have a massive problem with that. That's the only real use I have for copyright, though.

 The intellectual property industry

I'm in my fort, keeping out girlsIn the digital realm, unauthorized copying is rife and hard to enforce against, yet there are whole industries devoted to registration and enforcement. They make billions of pounds a year between them, offering insurance, advice, and valuation services, propagating and reinforcing notions of ownership and instilling fear in people that their precious intangible will be stolen away if they don't do something about it, quick.

The result is, whole businesses devote large sums to the protection of their

  • company name

  • domain name

  • social media accounts

  • patents

  • trademarks

  • copyrights

  • trade secrets

  • business plan

and ascribe such importance to them that other companies can invent whole new things to frighten them about in order to get business. Honestly, I'm in the wrong trade!

While it's important to protect trade secrets such as recipes and trademarks, the amount of trolling around the ephemerals is ridiculous. I use my own name for my business. I could have chosen my screen name or something else but I decided on that because my surname is unusual. Now the value of a domain name is only worth what you're willing to pay for it. I got my for free and the .com came with the hosting account. .net. .org, and the other extensions are available but they're unlikely to do anyone else any good unless they're willing to work very hard to match the number of indexed pages I've got for my own work. For that reason, I haven't bothered with them. I've had discussions with clients about the foolishness of choosing a .net because the .com or is unavailable. Basically, unless it's an ad farm, your search results will be swamped by an existing business's, so it's not worth it from an SEO point of view. The coms on two of my websites are taken and it hasn't hurt me a bit. I went with and the squatters who own them will have to relinquish them sooner or later because of the number of pages I've got indexed.

It's the same with social media accounts. Don't choose anything too similar to someone else's or you're asking for trouble because your page will be confused with theirs in a search. Even if someone was going out of their way to discredit you, they'd have to work very hard to be found if you're already established. When someone is actively trying to impersonate you, there are legal remedies, some of which simply require a report to be made to the ISP or social media abuse department. The point is, don't be frightened by this. I'm not.

The main point, in any case, of intellectual property protection is to stop other people from using your ideas. It's like a grown man in a fort made of cushions. All that's missing is the "no girls allowed" sign. The impact of this ridiculous over-dependence is that it makes the companies that rely on them for income vulnerable. If casual non-commercial copying of your work can hurt you, your business model is at fault. If you count on being the only one to use your idea unless a licence is paid for it, you're screwed if you can't afford to litigate to enforce your proprietary rights.

Cybersecurity FUD, feast, and famine

The National Counterintelligence Executive released a report last year in which estimates of economic losses to Russia and China have been estimated at between $2 and $400 billion.

The cost to both national security and private business is said to be considerable, but difficult to quantify. Bryant [Robert Bryant, the National Counterintelligence Executive] said American companies and the U.S. government produce approximately $400 billion of research and development each year. Depending on whose figures you go by, the losses each year range from $2 billion to as much as $400 billion - estimates that Bryant called "meaningless." - CNN

Copyright maths? The reason for the huge disparity is that the figures are predicated on potential sales lost. They're guessing, based on the number of estimated copies sold. That's not to say that counterfeiting and data theft doesn't happen. It does, and sometimes even the employees believe they are acting in good faith. Now let me make this absolutely clear: I deplore counterfeiting and have no time for cheating copycats. Make your own phones! I believe the reason for the disparity and inflated figures is not restricted to fake branded goods. I reckon it's due to prospective IP trolling in which innovations on existing items are being counted. Click the CNN link. There's a lot there about patent infringement, among other things.

The thing is, in a world where all you can do is huff and puff and forget about blowing down a house with a combined military strength of over five million personnel, you're probably better off trying out a business model that doesn't cripple you if someone else innovates on your product. Our government is starting to understand this, but doesn't quite get it.

The Review paints a picture of an IP system that is the foundation for a substantial proportion of the UK’s innovation and economic growth but which needs to adapt to meet the challenge of new technologies. The potential benefits it identified from making those changes are considerable: adding between 0.3 per cent and 0.6 per cent to the size of the UK economy by 2020 – between £5 billion and £8 billion – and cutting deadweight costs in the economy by over £750m. - Government response to the Hargreaves Review

The part they don't quite get is where they're encouraging people to use licensing as an income stream. They're also willing to fall into line with international (pro-American) treaties and laws. That's where the main problem is; being willing to hand our citizens over to them for crimes that aren't offences in our country. The trouble with this is it only addresses the issues of infringement on a cosmetic level.

Besides, when you get to the nuts and bolts of it, who owns an idea? Whoever has it registered. Which means that the idea of protecting the inventor is a fallacy. It's about protecting whoever has registered the patent, trademark, copyright, or whatever.

Relying on licensing backed by enforcement of proprietary rights as an income stream is a colossally bad idea when it's easier than ever to copy and illicitly distribute ideas and information. The smart thing to do would be to make intellectual property subordinate to a business plan, not the foundation on which it rests. Like that's gonna happen:

And in a globalized economy, our international responsibilities have become critical not only to our physical security, but our economic security as well.

Today, the very nature of travel, trade, and commerce means that one vulnerability or gap anywhere across the globe can impact security and economies thousands of miles away. And that means our security must be a shared responsibility – among governments, the private sector, individuals and communities. - Janet Napolitano, in a speech at the Australian National University

As I said in my last post, the trouble with maintaining a government-backed monopoly is that you're not subject to market forces and don't feel the need to innovate because you're not obliged to. And until the powers that be wake up to the fact that the monopolies they're willing to destroy our democracy to uphold are what is actually preventing them from competing effectively — not the unlicenced innovations on their products — small businesses like mine are going to be "educated" repeatedly about the need to secure an intangible asset that requires draconian measures to protect when we could be better employed actually plying our trades.

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