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Alternatives to Monopoly Rights


The introduction of copyright, patents, and design rights all coincided with the coming to political power of capital. In England, patent law dates from shortly before the English revolution, modern copyright and design rights from shortly after; while in the USA and France their introduction was part of the revolutionary constitution itself. But they have never been a natural fit with capitalist economies - as the only monopolies created by law, they were in flagrant contradiction with the economic freedom those constitutions claimed to enshrine.

The justification for these monopoly rights was always that they encouraged innovation at a minimal cost. The cost is no longer minimal. Holders of patents in medicine decide whether millions will live or die. Holders of patents in biology hope to take control of our food and farmers' survival. Holders of copyright are winning ever greater powers of intrusion into our private lives, hoping to treat millions as criminals. At the same time mainstream economists like Michele Boldrin and David Levine have begun to show that monopoly rights are not even needed for the corporations to profit from innovations. Nor have they been needed to create innovation in any society before this one.

The biggest holders of monopoly rights have huge power; including power over governments and international treaty organizations. But it is not enough power for them; they want to extend their monopoly rights in every field. There are at least four possible strategies to take in fighting this; they are not mutually exclusive:

  1. To defend the existing system against further extension (eg. the extension of patents to include software , or the removal of rights for countries to use generic medicines in emergencies)
  1. To try to introduce new laws which accept the existing system as a whole, but confirm the rights of individual authors and users (eg. the US Public Domain Enhancement Act
  1. To create new rights which are independent of the existing system of laws. Examples of this are Internet Copyright and the Free Software Act .
  1. To propose a new system which would replace the current one, not as an immediate practical step but to begin to build an alternative pole which is adapted to the modern world from the start.

The fourth alternative has barely been explored yet. Two papers which discuss a new regime based on positive rights are:

Positive Intellectual Rights and Information Exchanges by Philippe Aigrain

De la Propriedad Intelectual al Patrimonio Intelectual Comun by Roberto Santos (of Hipatia..)

but both of these assume that monopoly rights still have to be maintained either for exploitation of author's rights (Santos) or for particular goods such as machinery (Aigrain).

What would a law that did not allow any monopoly rights on published works look like? One that was suitable for a digital age? This is an attempt to create an 'ideal' law, regardless of the chance of it being passed by any government, just to get a feel for what it might look like. Please comment it wherever you disagree that this ~is an ideal. Hopefully this way a shared vision may eventually emerge.

If you do comment please enter the comment on a new line and add your name like so: --GrahamSeaman


1. _An author is a person who creates or collaborates in creating or modifying a digitizable work._

2. _A 'digitizable work' is any work which originates in or can be converted into and out of digital form without any losses noticeable for the purposes for which the work is normally used._

So 'digitizable works' include musical scores, musical performances, blueprints, books, computer programs, chip designs, etc. --GrahamSeaman

This means that 'digitizable works' is a moving target moving at the pace of digitizing technology. Interesting ;-) . --StefanMerten

3. _An embodiment of a digitizable work is a a physical realization of a digitizable work in non digital form._

This would include both a CD containing a musical score, a live performance of that score, and a recording of the performance. The digital form of the work may not (yet) exist. --GrahamSeaman

I don't understand this. What is a 'non digital form'? Aren't the configuration of electrons in RAM a physical realization? Or is this a 'digital form'? May be the idea of embodiment needs some clarification. --StefanMerten

The idea of an embodiment is hard to define but I want to make sure its included. When combined with rule 4 below, it means that if someone sells a medicine, this is a publication of the formula for the medicine. Treating sale of an embodied digitizable work as publication means there is no need for explicit laws on reverse engineering.The configuration of electrons is also ultimately physical, but this ambiguity is not related (as far as I can see) to legal problems and so isnt important here - the problems are in the other direction. For example, that pill which constitutes publication of the formula for the medicine is also publication of the process for combining bulking agents with the medicine, for providing a hard sugar coating, etc. Most non-electronic physical realizations are like this, they combine all kinds

  • f different knowledge. Does this cause problems for recognizing the multiple

authors rights involved? --GrahamSeaman

4. _A published work is one which the author(s) have purposely made available to anyone who wishes to obtain it, whether in digital form or as a an embodiment of the work._

Placing of the chemical composition of a medicine on a web page and manufacture of that medicine and distribution

  • f the medicine as pills are both publications of the work. --GrahamSeaman

5. _A user is anyone who has a copy of a published work in digital form or owns an embodiment of that work._

Authors' Rights

_These rights can be inherited, but are not otherwise transmissable to

  • ther parties._

Authors have the right to:

1. Choose whether or not to publish a work.

2. _Insist that their name(s) be attached to the work, together with a description of their role in creating it. The name may be a pseudonym, provided it is not the name of any

  • ther person._

3. _Insist that their names be removed from a published work, whether modified or not._

_Authors do not have the right to remove the names of any previous authors from a published work, however greatly the work is modified._

Users' Rights

Users have the right to:

1. _Modify an author's published work (at which point they also become authors)._

2. Create an embodiment of a published digital work.

So there are no patents --GrahamSeaman

3. Digitalize a published embodiment of a work.

So reverse engineering is always allowed --GrahamSeaman

4. Transfer ownership of an embodiment of published work.

So there is always a right of first sale/gift --GrahamSeaman


Applied to this society, the first consequence of such a set of rules would be first, a huge growth in trade secrets - hiding the work before publication, and hiding methods used to manufacture embodiments of works, and second, a growth in methods of encryption, obfuscation etc of digital data. These would be less of a problem than the current legal monopolies, because competition would soon eliminate companies which made their products less useful in this way.


1. Patents Are An Economic Absurdity (includes good web bibiliography)