A Constrained Rant by The Famous Brett Watson, 01-Dec-2001.
There are a number of theories regarding the nature of "Intellectual Property". Each of these theories has its own explanation as to what the true relationship is between an author and his work, and the kind of laws we ought to have (if any) to ensure that this relationship is supported appropriately. The various theories conflict in many important respects, but most of them recognise the need to allow creators and authors of original works some kind of control over the reproduction of their work. This need is usually based either on an argument of "fairness" to the creator, or on an argument of "utility" which supposes the arrangement is of net benefit to society.
Of these two theories, the argument from "fairness" is the one which is treated the most passionately, and is the one with which I have most often been confronted. Questions of "utility" can be treated in a more impersonal manner, with arguments based primarily on how the benefits of any particular scheme should be measured. Nobody wants to be treated unfairly, however, and so long as conventions like Copyright are perceived as enforcing fair dealing, any argument against Copyright is likely to be perceived as an argument against fairness itself.
My aim in this essay is to demonstrate how, in my own daily life, the fact that I have been granted these legal "rights" creates situations which I believe are anything but fair to me as an author and creator of works. I wish to show how Copyright and other Intellectual Property Rights can be used as restrictions on the parties they were intended to assist or motivate. My circumstances are far from unique; many (if not most) people in my line of work are put in the same position, and comparable situations are prevalent in other industries which centre around "Intellectual Property" in its various forms.
So hear my case, and judge for yourself whether this application of Intellectual Property Rights is fair, or, if you prefer, whether it promotes anything of value to society in general.
The major problem with Intellectual Property Rights, in my experience, arises from the fact that they can be reassigned. This isn't true in all places: the exact rules relating to Copyright (for example) aren't completely uniform from country to country, but in my home country of Australia, the owner of a Copyright can reassign it to some other party. Where the task of creation is performed as part of a job, then it is normal for the employer rather than the creator to be granted the Copyright on the work, but regardless of who is granted the Copyright in the first instance, the holder may reassign it.
This reassignment of Intellectual Property Rights seems reasonable at first glance, but it is posing a serious problem for me. In addition to being a university student, I am employed as a software developer by a multi-national Internet company, and their standard conditions of employment require that I assign to them all rights in all works of Intellectual Property relating to computers, communications and the Internet that I produce during the time I am employed there. This goes well beyond the usual assignment of Copyright in the employer/employee relationship: it means that if I write a computer program on my own computer in my own time in my own home, they own the Copyright on it. This is a standard clause in the workplace agreement: you can't get a job there if you don't agree to those terms.
This poses a particular problem to me because my university also expects to be granted certain rights in the work that I produce, and if I've already reassigned all such rights to my employer, then I'm unable to comply with their requirements. Unless my employer is willing to reinstate some of my Intellectual Property Rights with regards to university work, I will be obliged to resign before I start work on my major project simply so that I can meet the university's submission requirements when it is done. I've been attempting to get this matter resolved for months now, and I've yet to be offered any kind of compromise at all. I can't afford to delay much longer.
I should make it clear, at this point, that I am paying for my education entirely out of my own pocket. If my employer were contributing towards the cost, then there might be some moral argument that they should be entitled to the fruit it bears, but this is not the case. Also, due to my considerable study load, I am working on a casual basis rather than full time. My average attendance at work has been on the order of one day a week during this semester, and I am only paid for those hours I actually work. When it comes to Intellectual Property, however, my employer still insists that I assign them all rights to work I produce at any time.
My employer is not doing anything particularly out of the ordinary here: such agreements are common enough. Why do companies want such broad-reaching ownership of Intellectual Property? In attempting to renegotiate my own employment terms, I was presented with an argument from "fairness" in defence of the existing contract. The relevant clause, they claimed, was there to prevent a scenario like the following. Suppose I've been employed at the company for a while, and the opportunities presented to me there make it possible for me to come up with a patentable idea. How fair would it be if I then obtained my patent, left the company, and set up in competition to them?
It's possible that this could be described as unfair. It's also possible that it could be described as the healthy operation of a competitive marketplace. Whatever the case, the broad and far-reaching claims on Intellectual Property made by my employer prevent considerably more than this particular scenario. It prevents me from legally contributing to a Free Software project, for example. Indeed, it technically prevents me from exercising my professional skills as a programmer in just about any capacity outside of my job, and it certainly prevents me from generating any Intellectual Property that I can call my own.
Metaphorically speaking, my employer has demanded that I hand over my rights, then used them to bind my wrists. This is done in the name of fairness, but in the cold hard light of market realities, "fairness" is only of interest to a company when it improves the bottom line. When a company talks of the need for "fairness" in an arrangement like this, it's not mutual fairness. So if the marketplace of employees in general will tolerate demands to surrender all Intellectual Property Rights, then it's just good business sense to take them. It's effectively a "something for nothing" deal, after all.
The way in which a company benefits from acquiring these rights is also instructive. Normally we think of Intellectual Property ownership as a valuable asset in its own right, but the act of taking it away from other people also has its advantages. It's unlikely that an employee will be motivated to create works of Intellectual Property beyond the normal call of his job, so the employer is unlikely to gain any "bonus assets" that way, but preventing the employee from having any relevant Intellectual Property of his own is a good way to reduce his power in the marketplace.
Employees are, in many senses, potential competitors. An employee in a strong market position can demand salary increases, or easily look elsewhere for employment. If an employee is allowed to increase his own pool of Intellectual Property, then he becomes potentially more valuable in the market, and this runs contrary to the interests of his present employer. I believe (based on other aspects of my employment agreement) that this subtle hindering of competition is the more significant motivating factor in the desire of companies to claim all possible Intellectual Property rights from their employees.
So it's clear that an employee's ability to reassign Intellectual Property Rights makes it likely that employers will demand it be done in their favour, since they have nothing to lose. Would it help authors and creators generally if Copyright were not reassignable, but rather an inalienable right? I understand that this is the case in certain parts of the world, so it's not entirely a hypothetical question. The answer is that it could help, but exactly how much it helps depends on certain specific details.
In order for Copyright to be useful, it must be possible for the holder of the Copyright to license some of those rights to other people. In the case of a book, for example, an author must be able to grant a publisher license to reproduce the work. So even if Copyright were not reassignable, it might still be possible for an employer to demand a lengthy (if not perpetual) and exclusive license to all Intellectual Property created by an employee. This would be little different in practice from my current situation. If the balance is to be tipped back towards the employee at all, further restrictions would need to be placed on the legally allowable license terms, or on what can be so licensed.
In conclusion, then, I submit that Copyright and other Intellectual Property Rights are neither inherently fair or unfair. If "fairness" is a goal, then the rights must be made fair by careful examination of they ways in which they can be used (and abused), then encoded in laws which result in the fairest possible outcome. Without this careful scrutiny, Intellectual Property Rights can be used as a weapon against the very creators they are supposed to benefit.
You may draw your own conclusions as to how "fair" my particular predicament is, and whether anything ought to be done about it, but from my perspective at this point in time, I would be better off without Intellectual Property Rights. If the government would simply be so kind as to not grant me a Copyright on certain works, declaring them to be in the Public Domain from the outset, then I would not be obliged to hand them over to the exclusive use of my present employer. Whilst it's true that this would give me less control over the work than actually owning the copyright, it would be a vast improvement over my current situation.
It's a pretty poor "right" that gives you the impression you'd be better off without it.
Author: The Famous Brett Watson