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1. Intellectual Property as a Weapon empowered by Technology WERNER SCHRITTESSER

1.1 Prologue and introduction

As we already know, Intellectual Property is based on human rights. This relays to Article 27

in The Universal Declaration of Human Rights (The Universal Declaration of Human Rights,

1948):

(1) Everyone has the right freely to participate in the cultural life of the community, to

enjoy the arts and to share in scientific advancement and its benefits.

(2) 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.

But Intellectual Property is even more than „just“ human rights. Although designed as a

shield in reality it becomes more and more a weapon in the so-called globalized world.

Intellectual Property is a key element for both states and corporations to set up strong political

and economic positions against other nations and competitors respectively. The rules, better

known as TRIPS, are described in the chapter „Intellectual Property Rights and

globalization.“

The present chapter describes Intellectual Property in the context of technology and society

on the one hand and the effects and consequences on them on the other hand. Especially the

question how Intellectual Property Rights, technology and society influence each other will be

discussed as well as the role of media and media governance. The relevance of technology is

beyond dispute. It is part of everyday life and that leads to the question, whether the society

depends on technology or the other way round.

   

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1.2 Paradigms of technology

First of all, some considerations about technology and the paradigm of technology:

Technology is not only a bunch of hardware from manufacturers and software developed

from some code monkeys. The theoretical frames of technology could be described with Felt

(2011):

§ „technology regimes“ (Nelson & Winter, 1982) which involves the technological

possibilities, conditions of appropriations, cumulative degree of know-how and the

character of the relevant knowledge basis.

§ „technology paradigm and technology trajectory“ (Dose, 1982) which involves the sum of

knowledge, artifacts or the way how new research will be done.

§ „techno-economic paradigm“ (Perez, 1983) which move over the log-term effects of

technological development in the central point.

Especially the techno-economic paradigm has a strong relation to the Intellectual Property

paradigm, because Intellectual Property has the role of protecting technological developments

in a long-term run. But it is not only about Intellectual Property. There are other things to

protect the leading role of a corporation also - for example the so-called Lock-in effect.

1.2.1 Lock-in Effect

Now a short observation on how and why some technologies became more important than

others or are even state-of-the-art. A good case study is the development of a simplistic

keyboard layout, now well known by millions of computer users. It is the story of QWERTY:

In 1867 Christopher Latham Sholes got a patent for his so-called typewriter. At first he

naturally placed all the keys in alphabetical order. But unfortunately, because of mechanical

constraints the hammers of the keys often blocked each other. So he mixed the keys to avoid

the problem. This was the birth of the QWERTY keyboard. The tall tale reports, that Mr.

Sholes put all the letters of „typewriter“ on the first row to make the job for salesmen easier.

Some modifications were made, like for the German version QWERTZ (because Y is as often

used in German), but that’s all. The arrangement of the letters was not the best way for easy

and quick writing, but it became the de-facto standard and it is still today. In 1936 Dr. August

Dvorak patented a method to build the optimal keyboard layout based on the frequency in the

usage of letters – but it was not successful. The de-facto standard maintained his position.

   

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The heart of this simple story exemplifies the so-called Lock-in effect nicely, which means

that a technology has a strong foothold in Intellectual Property Rights and is (almost)

exclusively used. To overcome such a Lock-in, huge efforts in terms of time, costs and

education are necessary. That’s why it is nearly unimaginable to replace all keyboards in use

today even though another design would be much more effective in the long run.

Todays patent conflicts between corporations (like Oracle, Samsung, Apple, Google,

Microsoft and so on) trace back to the Lock-in effect. That means, patents and Intellectual

Property Rights are not only tools to push todays business, they are really the weapons in a

globalized battle to secure the existence of companies, the good will of rating agencies and in

the end, shareholder value. A realized lock-in effect is a dream for innovators and

corporations alike.

A Lock-in on a government meta-level is the protection of knowledge, innovations and

research power within a nation. The formal frames to do this are Intellectual Property Rights.

The question is if this makes long-term sense. Corporations become more and more

independent from countries. First they move their production facilities to low cost countries

and so the knowledge of production drains also to other countries. Then they move R&D

Departments e. g. software development to other less cost countries and so the know-how

changes place as well – at least partially. Subsequently they move services to low cost

countries also and with it the knowledge on how to service customers. US banks for example

sourced out call centers to India and those are still able to serve customers with a familiar

American accent. Briefly speaking corporations go wherever they want to go or even have to

go to fulfill demands of investors or shareholders as well as stay competitive in an ongoing

changing global market. In the following two examples will be used to illustrate state of the

art strategies for Lock-in effects:

For instance Apple has this recently announced service: A custom newsstand for all the

subscriptions of a customer. This Newsstand organizes all magazines and newspapers bought

with app (application) subscriptions. Apple argued that the Newsstand allows quick and easy

access to favorite publications. They built a new store just for these subscriptions and

whenever new issues become available, the Newsstand automatically downloads and

organizes them. „It’s kind of like having the paper delivered to your front door. Only better“,

Apple promises.

   

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Figure 1: Newsstand – adapted by W. Schrittesser

The intended Lock-in is to aggregate all the subscriptions at Apple. The publishers do not

know their customers any more and Apple dominates another media business at the end of the

day. This is a really dangerous development: if one company can decide which newspapers

and magazines will and, ultimately, which will not be sold. These aspects of censorship are

important, because one company alone or even just one person will codify ethic rules.

There is also another trend. A trend that could be described as „I scratch your back, you

scratch mine.“ For the music and movie industry illegally taken videos seem to be a great

problem. Kids post recorded videos on the Internet, which has an influence in selling music

videos and movies. Especially if movies are available on the net the same day the premiere

takes place. The reason is that videos are recorded in the cinemas or regarding music videos

during the various concerts. So Apple patented a new technology to show the industry their

collaboration efforts.

Timothy Karr wrote under the headline „Is Apple Launching a Pre-emptive Strike Against

Free Speech?“ in the Huffington Post: „It is a new technology that can detect when people are

using their phone cameras and shut them down.“ This technology was intended to stop people

from recording video at live concerts, using a remote called "kill switch", based on an infrared

signal. At the end of the day, this raises concerns about the power new media companies’ hold

over our right to connect and communicate. So technology becomes a weapon of control

Intellectual Property to big companies.

   

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1.3 Paradigms of technology and society

The Social Construction of Technology (SCOT) refuses the artificer as a central person (like

Christopher Latham Sholes) to explain technological developments. There are much more

complex constellations for innovations.

Hughes (1986) describes:

„Heterogeneous professionals - such as engineers, scientists, and managers - and heterogeneous organizations - such as manufacturing firms, utilities, and banks - become interacting entities in systems, or networks. Disciplines, persons, and organizations in systems and networks take on one another's functions as if they are part of a seamless web.“

So the artificer will be refused as the central person? What does that mean? Especially in

terms of human rights, where Intellectual Property is defined as the right of a single person.

But if the innovators are not single persons but companies or large conglomerates, do these

organizations have rights like human beings? And should they be able to disenfranchise

individuals in terms of Intellectual Property Rights?

When companies develop new patents, they also develop so called scripts, which are

imprinted within the technology. These scripts represent values, rules, hierarchies and

mindsets. So for example a simple washing machine has an imprinted script, how housewives

should be. And this script is communicated via advertisement in various media. Housewives

according to these should be joyful, happy and friendly. The reason for these characteristics is

based on technology, because it makes life much easier and therefore housewives should or

have to be happy.

As Akrich (1992) pointed out,

„thus, if we are interested in technical objects [...] we cannot be satisfied methodologically with the designer's or user's point of view alone. Instead we have to go back and forth continually between the designer and the user, between the designer's projected user and the real user, between the world inscribed in the object and the world described by its displacement.“

   

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The expectations of the society move in a specific direction, which could be described as

technologies being used in the way they are intended. Therefore no critics or discussions –

just use it and if you use it in the intended way you will be satisfied otherwise you will be

frustrated.

But people are not only consumers and use technology in from the script deviating ways. So

for example they convert a music CD to MP3 not only for their own usage. They also like to

share the music with their friends. All technical constraints that those scripts include become

void when they are new rewritten by the people. Recognizing this, the industry demands

stronger regulations and in particular stronger penalties.

The script as mentioned above could also be characterized with the term code. In „Governing

Through Code: The Manipulable Characteristics of the Law of Cyberspace“, presented to the

International Communication Association (New Orleans, 2004), Mitchell (1996) described in

City of Bits „how code can control our behavior. Just as a building can be constructed with

walls of brick or glass, code can create analogous walls in cyberspace. The design of code

may either facilitate tracking and surveillance, or it may aid in preserving anonymity. In this

way, the architecture of code may have a profound influence upon behavior.“

1.3.1 Technology and risks

In the beginning technological innovation would be associated with risks. So for example the

motorcar and also the bicycle were estimated to be very risky at first. But after a while the

process of habituation push potential dangers in the background and today motorcars are not

seen as a technology with high risk even though many people die in traffic accidents. This is

like a societal Lock-in: once accepted, dangerous side effects are merely part of the norm. The

same happens with other Lock-ins, based on de-facto standards like Google’s search engine,

Apples iTunes Store or Microsoft’s operating system Windows. As pointed out, Lock-in is

not only an item of Intellectual Property, it is also an effect of social adaption and efficient

strategies from companies relying on people acting how they are used to act.

Another interesting aspect is liability regarding Intellectual Property. This question comes up

from time to time when large or even catastrophic accidents take place. If we look at

Fukushima, the discussion is about the operator and proprietor. But there is no discussion

about the inventor of the BWR-technology (Boiling Water Reactor) and the owner of the

   

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various Intellectual Property Rights. It should be discussed whether owners of Intellectual

Property Rights should also be liable for the consequences of the real world application of

their innovations via i.e. refunds of license fees. Otherwise companies that own Intellectual

Property Rights have only rights and no obligations or liabilities.

1.4 The dilemma of governments

As reported by the BBC in November 2010, according to Prime Minister David Cameron

Britain's Intellectual Property Laws are to be reviewed to "make them fit for the internet age.”

The story behind that is that the law could be relaxed to allow greater use of copyright

material without the owner's permission. The idea is that such new regulations will boost

small businesses as argued by certain Internet activists. But it is still unclear how to overcome

the resistance of the industry against copyright reform.

The founders of Google argued that they have not started their company and a series of

investments in Britain because the regulations and laws are not as friendly to such innovations

as they are in the United States.

Mr. Cameron said: "So I can announce today that we are reviewing our Intellectual Property

Laws, to see if we can make them fit for the internet age. I want to encourage the sort of

creative innovation that exists in America."

What does this mean furthermore? As already described above, companies go with their

production and service centers to low cost countries to make more profit. This scheme repeats

itself also in terms of Intellectual Property regulations. That means that large companies go

with their investments to countries that have „friendly regulations and laws“. Because of that

there is a new form of competition.

Nations compete furthermore not only in terms of investment support like employment

promotion or low taxes. They also compete with their willingness to adapt laws to fulfill the

wishes of technology providers, which are - with the help of some Lock-in effects - strong

enough to force the hand of single states and in the end also supranational entities like the

European Union.

   

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So there are big challenges in the future for governments because leading technology

companies are becoming stronger and stronger, comparable to the media industries

monopolization. And if finally technology companies get control of media companies as

described in the example of Apple with its Newsstand, this Lock-in effect becomes really

dangerous for society. A society that could be dominated by both, technology and media

represented by some few companies with the help of compliant states with tailored

Intellectual Property regulations or worse even, with a compliant TRIPS regulation. So

Intellectual Property and technology can be both: on the one hand a shield and on the other

hand a weapon for corporations to secure business and profit.

1.5 Technology and Intellectual Property in the context of science

Knowledge becomes more and more a product and a marketable commodity. Scientists as

entrepreneurs sound acceptable and trendy. So scientists on the one hand could be career and

profit driven people who work more or less for the interests of various technology institutions

or companies with the goal to make as much money as possible. On the other hand there is the

old paradigm of the scientist who is only interested in the truth, knowledge and in the end, our

progress as a society.

Lead back motives of scientists cannot be only reduced to the one or another reason. But

scientists are also only human. And therefore they depend on the environment and conditions

that they work in and are shapers of at the same time. Those structures changed dramatically

in the last years because of both, the developments in technology and the changes how

science is governed. Governance of science is similar to media governance. This is because

governments in the past heavily regulated both. Public media companies on the one hand and

government financed universities on the other hand are still somewhat an integral part of

many countries within the European Union.

Private media companies emerged more and more in the last decades and universities get

more and more private industry character, defined in the so-called Bologna process. Customer

orientation and profit orientation are described as key success factors for both media and

science. Intellectual Property in this context seems also to be a shield and a weapon. It’s a

shield to protect the cultural outcome at media companies and the intellectual outcome at

universities. And it’s a weapon especially against smaller media companies or universities

   

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with smaller budgets, which cannot compete against the power of huge budgets to establish

large research projects or specific media productions.

Philip Mirowski (2004) perceived an economic change at the beginning of the 1980s. Large

companies sourced out their research departments. Universities were encouraged with the

help of new government regulations, which defined that Intellectual Property Rights could

dispose and turn to account by the universities themselves. So universities are able to produce

knowledge and sell knowledge under the umbrella of Intellectual Property. This matters a lot.

Knowledge becomes merchandise. Therefore a big market opened up.

Sergio Sismondo from the Canadian Queen´s University said that the outsourced research

companies work quite cheaper than universities and so universities are more and more under

pressure to be competitive against outsourced research companies and their intellectual

property rights. New bondages appear.

1.6 New bondages

Universities und scientists are forced to be competitive. Especially scientists are strongly

encouraged to work with regards to financial and time constraints. After a while those

constraints will be internalized by the scientists and are not recognized as a rule from outside,

said Ulrike Felt (2011) from the Department of Science Studies in Vienna in one of her

lectures regarding science and technology 2011.

Ethics and/or Values? This Janus-headed philosophy is expressed in the „European Charter of

Researchers and Code of Conduct for the Recruitment of Researchers.“ On the one hand

science is described as service for humankind and a right of free expression, on the other hand

the hard facts of research are described: scientists should accept the constraints, coming from

certain circumstances like practical constrains, operational constraints and, especially in the

free market, constraints to protect Intellectual Property.

The practical effect is that several fields of research are not addressed anymore, because there

are such a lot of Intellectual Property Rights, patents and license constraints, that it is not

worth the effort if the research must be financed by the outcome. This effect is called „dead

water“ and means that the fishes that could probably be caught in dead water are too small. So

fishing is not lucrative. This is a negative Lock-in effect. And to say it clearly – those small

fishes are in reality people. For example people with specific medical conditions, seldom

   

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illnesses or marginal groups. Intellectual Property as a weapon hurts those people, which

have no chance to strike back until the society represented by governments help them in

redefining Intellectual Property so that research and technology are able to help.

1.7 Locked-in in paragraphs? An intermediate result

So the reapparition of the people is needed more than ever to avoid Lock-in effects. Media

companies have a very important role in this process. Media Governance should support this

role in terms of encouraging more independent media companies that will address the pointed

out problems publicly.

   

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