The Gardener looks at the ownership angle of both water and thought. Piracy is not only in the high seas. And the pirates are not who you think they are.
How does one apply the moral philosophy of ownership to the commons – whether this be the Philippine Sea or the human ocean of ideas?
It is ours; no, it is ours!
from http://globalnation.inquirer.net
One of the world’s busiest shipping lanes and an area believed to be rich in natural gas and oil is called the West Philippine Sea or the South China Sea – the name depending on whom you are talking with. It is dotted by hundreds of tiny outcrops and islands including the Huangyan Islands or the Scarborough Shoal – the name again depending on whom you are talking to.
In a millennium of “having” and not merely “being” one can often hear it announced that the islands of this big sea are “claimed in ownership” not just by one or two countries like China and the Philippines but also by others like Taiwan, Brunei, Malaysia and Vietnam. A nonbinding 2002 accord hoped to discourage aggressive acts that could spark fighting.
from http://www.biography.com
The past sixty days, however, following a major foreign policy speech in Hawaii by the de facto head of the American imperium, Secretary H. Clinton, the Philippines and China, as if on cue, started a two month drama that were just so much grist for at least the Philippine journalistic mill. Interestingly enough, few writers noticed that it could have been Mrs. Clinton who directed and produced the international play that cost the Philippines a lot of bananas – not that the Philippine economy is sagging (LOL) but merely because banana is a favorite profitable export that China chose to dramatically reject, sending the fear of the Lord to Philippine businessmen more than any incident among “fishermen” in the high seas could.
It’s the sea-lanes, stupid!
Clinton had earlier written in Foreign Policy magazine, not presumptuously, that Asia “is eager for our leadership and our business — perhaps more so than at any time in modern history. We are the only power with a network of strong alliances in the region… Along with our allies, we have underwritten regional security for decades — patrolling Asia’s sea-lanes and preserving stability — and that in turn has helped create the conditions for growth.” America never had to admit its military as an invading force but merely as visiting forces.
Thus when the China-Philippine squabble looked like it was going beyond the American script, the United States immediately dispatched a nuclear-powered submarine to the former U.S. base at Subic in the northwestern Philippines facing the South China Sea or the West Philippine Sea. The virtual founder of the modern US Navy, Theodore Roosevelt, was famous for his saying: “Walk quietly and carry a big stick.” How about a nuclear sub?
USS Louisville fast attack submarine
from http://www.strategypage.com
The U.S. Embassy in Manila explained that the USS Louisville was making a routine port call to highlight historic and military relations with the Philippines, the second publicly announced visit of a U.S. submarine in recent months coincidentally happening amid the tensions between China and the Philippines, and as Manila turned to Washington for military aid.
Immediately, Chinese Foreign Ministry spokesman Hong Lei declared at a regular briefing in Beijing that the situation at the Huangyan Islands – the Chinese name for Scarborough Shoal – “is overall toward peace.” The Philippine government for its part had earlier pulled out its two vessels from Scarborough Shoal. Good boys, both. In the past it was “persuasive flights.” This time it was the persuasive nuclear submarine.
Said Mrs. Clinton: “The Association of South-East Asian Nations is not on the lips of every American. And rarely, if ever, has it been in the headlines. But when you look at the future of the Pacific we do more trade with those nations than we do with China. We also have a lot of strategic interests with them because many of them will continue to grow: they’ll build middle classes; they’ll expand their economic and political reach. So I went to the ASEAN headquarters in Jakarta and signed our intent to accede to the Treaty of Amity and Co-operation, which I have to confess I had never heard of before preparation for the trip.”
China’s modernization and America’s discovery of intellectual property
There is no question about the current velocity of China’s modernization and industrialization program. In a little more than two decades it has brought in about three hundred million people from the rural scene to live and work in the urban setting. China is producing for itself, for the world and for the US in particular. And the latter that benefits from it also began to resent it quite a while back. Why?
The balance of trade between the US and China is now in the hundreds of billions of dollars – not in the USA’s favor. The United States is always about to take China to court at the World Trade Organization over suspected trade barriers and piracy of books, music, videos and other goods – in short over the issue of I.P. or intellectual property.
But not every one outside the movie and music businesses was rushing to support the U.S. government’s anti-piracy complaints – unlike a few years back. Two giant industries – the computer software and the drug industries had already been making their own market-access and antipiracy advances. They didn’t want their work – mainly compromise work – disturbed.
To many historians, like this gardener, all this will sound funny now because for more than a hundred years, the US had strong intellectual property laws that only protected its citizens and residents but not foreigners and foreign products. These latter were explicitly excluded from protection by American law. Most British work, for instance, was blatantly pirated in the US – yes, blatantly and legally. As long as the work of a foreigner was not legally protected, it was common property.
Then, later, after more than a hundred years, foreign authors and inventors could also obtain American copyright protection. But it was expensive. Like now, so was it then – pirated copies are always significantly cheaper than “original”. Thus, there was little incentive to buy “legitimate products.”
The Berne convention of 1887 was signed by most of the world – affording international copyright protection. But, as before, the US would again take its time – over another 100 years (1988) till it signed the convention.
Poor Amnesiacs!
Developing countries outside amnesiac Philippines do not too easily forget this fact – for their own good: countries such as Taiwan, China, India, Malaysia, Thailand, Korea, Indonesia, and Hong Kong. They seem to be quite aware of the teaching of the American philosopher, Thomas Jefferson:
“That ideas should freely spread from one to another over the globe, for the moral and mutual instruction of man, and improvement of his condition, seems to have been peculiarly and benevolently designed by nature, when she made them, like fire, expansible over all space, without lessening their density at any point, and like the air in which we breathe, move and have our physical being, incapable of confinement or exclusive appropriation.”
How did it come about then that Americans started preaching to the world about the moral philosophy of intellectual property ownership and the evils of piracy: at the GATT, the NAFTA, the APEC, everywhere – and now the WTO?
Quite simply, the US was transforming itself from an industrial economy to an information one. Intellectual property had become its new basis of comparative advantage. There was a new resentment of the world’s increasing capacity to freely access and use ( to “pirate”) intellectual works and new technologies.
The value protected by Intellectual Property in the world economy had risen to a staggering hundreds of billions of dollars – and is still growing. Clearly, Intellectual Property provides the key to the distribution of wealth and power and access in the information society.
To the USA, intellectual property rights must be protected because of their humble belief that America is the most creative place on the planet. And this seems true in the computer industry and in the pharmaceutical, movie and recording industries. America correctly believes that, legally or illegally, all other countries on earth benefit from US creativity in these fields.
Their own caveat; avoiding the moral issue
Some American quarters now caution against this US-Is-No.1 argument because, they warn, “If we lose the upper hand, we will be disadvantaged by the very intellectual property laws we have designed”. According to the advocates of this view, it is wiser to see that the exchange of new knowledge is more important than immediate royalties. In the end, they believe, such free flow of ideas will make piracy moot.
In the past, prophets and social philosophers fulminated against those “who covet farm after neighboring farm”. Today the covetousness is applied to the realm of elusive ideas: appropriating in an exclusivist and absolutist sense music, painting, drawings, motion pictures, sound recordings, computer software and even genetic codes. The past practice of first occupancy of land as a dubious moral justification for absolute ownership of a common resource now leads to first registration of patents and copyrights. And these new acts of ownership get to be extended for longer and longer periods.
Thus, the war between the U.S. and China at the World Trade Organization or WTO and in other forums is well worth watching because the issue, – piracy – has become, in the words of Chen Zhaokuan, deputy director of the Copyright Society of China, “a world-wide issue.”
However, the pity is that both sides will avoid touching the philosophical depths of the topic and focus, instead, on the more superficial legal niceties, such as “what crimes are equivalent to being caught with 500 CDs” and “do penalties for piracy in China already comply with WTO rules” and other questions of the same genre. That would really be a pity if the debate were limited to such legalities.
More than sixty years ago, a former Justice of the Provisional Supreme Court of Shanghai, John C.H.Wu, told law students that “one cannot really know the human law without taking account of its sources.” Much earlier on, the late U.S. Supreme Court Justice Benjamin Cardozo had said that implicit in every legal decision is the philosophy of the origin and aim of law. “Neither lawyer nor judge, pressing forward along one line or retreating along another, is conscious at all times that it is philosophy which is impelling him to the front or to the rear.”
Legal but not moral
What moral philosophy then can we find behind the legal subject of Intellectual Property? When people “own” ideas – the ownership of these ideas is referred to as “Intellectual Property.” People own clothes, cars, houses and even land. Morally speaking, they can only own these things privately in order to use them properly. Ownership is understood as a means for the sake of an end, which is the proper use of things. It is morally acceptable to say that certain things cannot be properly used if they are not privately owned.
“Owning” normally means “exclusive use or control”. “Owning” ideas, then, would mean “exclusive use or control” of ideas – which clearly does not make as much or the same sense as when you apply the term ownership to physical objects. The essential difference is this. Physical objects can only be used by one person at a time. But ideas can be copied over and over with the person who had the “original” idea still retaining full use of it. More than one person can use an idea – a poem, a mathematical formula, a tune – without reducing other people’s use of the idea.
Shoes, clothes, houses, cars, toothbrushes, ideas, air, water, land – what is the difference in the ownership of each of them by would-be property owners? The philosophical principle is clear: the extent of the right of ownership over anything must be defined by the nature of the thing owned. And, as the American Thomas Jefferson already pointed out: what is clearly in the nature of ideas is their characteristic to be freely and inevitably shared. My ideas are only my own if I do not share them. Once shared, they cannot be returned and enforcing my so-called property right is impossible.
The famous advertisement put out by the Optical Media Administration for showing in all theaters was clearly morally fallacious when it adduced various kinds of property as being similar to I.P. given that, by their very nature, they are not.
Some statutes currently imposed by the state may be legal as a work of a humanly frail legislature vulnerable to U.S. imperial pressures but they may not necessarily be ethical or moral. On the contrary, some copyright and patent laws should be regarded as unethical when they are used to abridge the freedom of using published information.
Using published information does not cause harm to anyone. Abridging such freedom of use harms the progress of science and the arts and abridges the freedom of speech, expression and the freedom to think freely.
The freedom to acquire knowledge, store, process and spread that knowledge, as we see fit, is clearly abridged by certain copyright and patent laws. So we say these laws are immoral because their aim is frankly to strive to make a scarce resource of something that can be truly abundant.
If my freedom to obtain knowledge, store and process that knowledge, and then spread that knowledge as I see fit is abridged – as in fact it is by some intellectual property laws – then I am forced to re-invent the wheel rather than copy and use or modify existing information.
Thus, for instance, if I publish a program for drug designs, and claim all intellectual property rights over it, you wouldn’t even begin to do research on the program legally without licensing it from me. The freedom of others to even think about what my program is and/or to improve its workings is thereby seriously abridged.
This very term, Intellectual Property, derived from the landed estate metaphor. Eighteenth century England was seeing the commons rapidly giving way to private property in land – land which, since time immemorial, had been considered the essential component of the public domain, the koina, or the commons. The metaphor, therefore, places accent on appropriation rather than its basis, which may have been creation, for instance.
“People are entitled to the results of their labor.” Yes, but first of all, we must recognize that more than anything else, intellectual products are social products. Their value is not due to the work of a single laborer or small group but is now clearly more and more a common human heritage. And here we are getting close to true issue.
Our ancestors got it right, morally speaking, when they invented two words of two different meanings for the one word “ours”. They said some things are amin and other things are atin. Both are ours, one inclusively, the other exclusively.
The gardeners caution: in both the human ocean of ideas and in the vast waters of the South China Sea, let the governments of the Philippines, China and others take heed. Which will be amin; which will be atin? Or will all be absolutely theirs, or absolutely ours? The imperium may then continue to smile and say it again: “We have underwritten regional security for decades — patrolling Asia’s sea-lanes and preserving stability.”
FINIS
Charles Avila – The Gardener
The Gardener’s Tale