The difference between ideas and things is obvious as soon as someone hits you over the head with an idea – so obvious that until recently it was entirely clear to the law.
Things could have owners and ideas could not. Yet this simple distinction is being changed all around us. Ideas are increasingly treated as property – as things that have owners who may decide who gets to use them and on what terms.
Ideas such as one-click shopping, getting customer reviews on a website or even putting classified ads on the internet are now patented, which is to say that somebody owns them – Amazon.com the first two, Google, the classified ad patent – and anybody else who wants to make use of them must pay a rent to the owner. Last week, Amazon was also granted a patent that covers getting shoppers to review the things they have bought on its website. BT has tried to patent the hyperlink, Microsoft is trying to patent XML, a way of writing computer files that is fundamental to the operation of modern business.
The fight over the human genome and its patenting – and over the patenting of drugs – is another, and perhaps more familiar front in the war. Ideas are codified as intellectual property and regarded as among the most important assets a company can own. As where things are made becomes less important in the formerly industrialised nations of the west, the real value comes in the licence to allow others to make them.
Even facts about the world can, in some cases, become the property of commercial companies. It was the promise of gaining patents on the human genome that lured investors into the private consortium that attempted to sequence it in competition with the public effort. Laboratory animals have already been patented, starting with the OncoMouse, an animal whose genome has been manipulated to ensure that it develops cancer.
Science was one of the first fields in which the confusion of ideas with things became apparent and damaging. It has always been one in which ideas and techniques were freely shared. You might say that any scientific experiment is worthless until it has been copied – if it can’t be repeated, it isn’t scientific. Scientific papers, too, measure their influence by how often they are copied or quoted in others. But as the practice of science has grown more expensive, and more commercial, so has the pressure to patent everything. The public project that sequenced the human genome, led by Sir John Sulston and Bob Waterston, defined itself as in opposition to patenting data. This wasn’t just an idealistic stance. They were convinced that without freely available data the work would flow less swiftly, if at all, and that the results would be very much less useful. In fact, the so-called private project run by Craig Ventner used a method that relied on the availability of publicly sequenced data as a springboard for the short cuts it took.
Sulston now, after his Nobel prize, spends much of his time campaigning for public access to scientific knowledge and its fruits. In a world where material goods are so unevenly distributed, the effort to lock up ideas and intellectual riches as well seems to him quite monstrous. The struggle over patents in science and technology is usually presented as one between rich countries and poor ones, with big pharmaceuticals on the one side and almost everybody in the world on the other. It is certainly true that the governments, the peoples and the industries of poor countries have fewer drugs than they might otherwise have because of international patent law. But so do the big companies themselves. It is not just the results of scientific inquiry, like drugs, that are controlled as intellectual property. It is, increasingly, the knowledge needed to make them or to understand how they are made. Where scientists once worked over a safety net composed of other scientists’ experiments, they can now have the impression that they are working over a minefield composed of other companies’ patents.
In this world, size is no protection. It just makes you a more succulent target for enemy lawyers. It is the biggest and most enterprising firms, whose work is likely to make use of the greatest bodies of knowledge, that are most at risk. Naturally, this has a chilling effect on the work that is done. Big pharmaceuticals must patent everything, if only to be certain the competition does not do it first. They may, of course, later exchange patents with their rivals. But that simply helps to confine invention to the very largest companies, as the smaller ones have little to trade with.
This is even more true in the software industry. The law of copyright – and of patents – long precedes computers, which fit very uneasily into the old frameworks. Neither copyright nor patent law is satisfactory here, but patents on software threaten to have the most disastrous effect on the future of programming, since only programmers can break it. In the beginning, computer software was neither patented nor copyright. For so long as the machines had no users, only programmers, this made sense. But in the mid-1970s, people started to see they could make money out of software. This is not easy or obvious, because when I make a copy of your program, you still have the original, which works just as well as it ever did. Equally, when you make a copy and sell it to me, it has cost you nothing, so why should you charge me for it as if it were a limited resource? There is no answer from justice to these questions. The only answer that makes sense is that certain arrangements of copyright promote a flourishing market in software, which is in society’s general interest, so it should legislate for them. Without it there would be no commercial software industry, or any way to ensure that free software stays free.
Bill Gates first came to the attention of other hackers when he objected to their taking his earliest Basic programming language and copying it, as they were used to doing. He won, and Microsoft’s riches rest on copyright law. But they also depend on its constant violation. Around every legitimate, full-priced piece of software hangs a penumbra of pirated versions. Most of these will be converted, at some time, into legitimate purchases. But the fact that you can use most MS software for free has been an important factor in spreading the habit of using it and in killing competition. The companies that make most fuss about “software piracy” know perfectly well that if it were entirely abolished, they would be less well off.
Software patents came along later, and are much more damaging, because they can be enforced. Copyright protects only particular program code. It does not – crucially – protect the way that it looks and works. Nor does it protect the clever ideas contained within it. In a world where software is only protected by copyright, competition works like evolution – by incremental improvement.
Patenting software could stop all that. Because patents are meant to protect inventions, they apply to ways of doing things in software. This can be discussed as if it were real machinery, but in fact it’s an idea, or an arrangement of ideas.