Public Goods and Intellectual Property Rights
Introduction
Perspectives on public goods and property rights are a fundamental part of communist theory and philosophy. Much of the core tenets of modern communism stem from their ideas on public property and the definition of ownership in society. Communist philosophy argues against private property and supports collective ownership. This philosophy applies specifically to intellectual property and software. The common view is that no person should on their own or control any property, whether electronic, merely an idea, or otherwise.
Communist Philosophy on Property
Communist philosophy centers around the control of the "means of production" in society. This means of production is the physical and labor capital that is used to produce the different goods in society. In strict communist theory the "means of production" is collectively owned by the people in a community, to insure that all the people will get the products that they themselves desire. In this way, communists argue that social classes will be eliminated, because everyone will retain control over what society produces to satisfy their needs. They argue that when individuals own the means of production as in capitalist society, the individuals will exploit the workers and develop a lower class. Because the people themselves get to decide what society produces, everything that is produced by society is also collectively owned by by society. This potentially benefits everyone in the society as Tao-Tai Hsia and Kathryn A. Haun state "[Communist theory postulates] that the maximum welfare of the individual lies in, and in the long run is indistinguishable from, the realization of the maximum welfare of the society." Thus communism argues for the abolishment of all private property, and everything that is owned is owned by all members of society.
This theory, that all property is owned collectively, stipulates that everything a person creates and owns is also collectively shared with everyone else. The core principle behind the concept of public ownership is that every person is a product of society. Because each human is a product of society, anything he or she produces is also a product of society by translation. Therefore, anything that a is produced should be owned by the society itself because no one person has solely produced it. Communist theorist Mick Brooks stipulates that, "creation is seldom only the result of individual genius. We all incorporate the advances of others as building blocks in our own thought without even considering it. That is how humanity advances.” These ideas refer specifically to to property laws and how making property public will fundamentally alter society in a positive way. Views on specifically intellectual property seem to follow in the same vein.
Intellectual Property
Karl Marx and Frederick Engels argue in the Communist Manifesto that intellectual property also is always a product of society: "Even when I carry out scientific work, etc., and activity which I can seldom conduct in direct association with other men, I perform a social, because human, act." From this perspective, all of the theories that reference views on physical property can be appropriately shifted to refer to intellectual property as well. Every idea that is created is a product of society and will better serve society if it is shared and improved on. These ideas can be computer algorithms and software, and communists believe in the open sharing of this software. Modern communist theorist Maarten Vanheuverswyn argues that the sharing of software and ideas benefits society because "human knowledge and the produce of human labour is used to the advantage of all society." In this thought framework, no programmer is compensated personally for their work: the entire society benefits by making source code available because everyone will collectively work on the software as well as collectively reap the benefits. Communist theory about software is similar to traditional open source arguments: that source code sharing can provide greater access my multiple people, and therefore the greatest minds can all work on it at once, thus producing higher quality software.
Communist Philosophy on Patent Laws
Patent laws are the most significant legislative structure existing to protect intellectual property. Traditional communists ideals argue against having any patent law entirely. They argue against any justification of patents. The first justification for patents is that an inventor should be rewarded for the hard work because they discovered and idea that was not known prior. However, Tao-Tai Hsia and Kathryn A. Haun state a "Marxist would view Western patent law as focusing on only the technical achievement of the inventor, rather than taking into account the whole context of the inventor's life and relationship to society." Thus in traditional communist theory, there is no justification for personal reward in public achievement. In addition, they also think communist theories argue against the other common justification for patents: they provide incentive for inventors to spend their time developing new technology. The two states patents as incentive is contrary to traditional communist thought as "the incentive offered is a monopoly which increases the private profits realized from the invention rather than the benefits to society in general." Communism therefore argues against all patents, and because of this also argues against the patent protection of intellectual property, including software. Patents on algorithms, interfaces, and ideas are all incompatible with traditional communist theory.
Modern communist views on software and intellectual property agree with these sentiments. In the dotCommunist Manifesto, software is discussed in terms of communist philosophy. The following demands are laid out to increase the ideas of free sharing of information and technology:
1) Abolition of all forms of private property in ideas.This view reflects a majority of modern communist perspectives: that there should be no patent laws and an elimination of intellectual property projection entirely. The idea of commercializing ideas goes against the public ownership of all property produced by society. The free software movement currently in practice is supported by much of the communist community.
2) Withdrawal of all exclusive licenses, privileges and rights to use of electromagnetic spectrum. Nullification of all conveyances of permanent title to electromagnetic frequencies.
3) Development of electromagnetic spectrum infrastructure that implements every person's equal right to communicate.
4) Common social development of computer programs and all other forms of software, including genetic information, as public goods.
5) Full respect for freedom of speech, including all forms of technical speech.
6) Protection for the integrity of creative works.
7) Free and equal access to all publicly-produced information and all educational material used in all branches of the public education system.
Patent Law in Early Communist China
Contrary to the theoretical framework that communists have on protecting intellectual property, most governments, including China, in practice have provided at least minor amounts of patent law protection. During the early years of Communist China, certain laws provided minor economic recompense to inventors. Despite this, the ideology behind these laws were of communist origins. The first laws created in China during this time were the "Provisional Regulations on the Protection of the Invention Right and the Patent Right," passed and on August 11, 1950, and the "Provisional Regulations on Awards for Inventions, Technical Improvements, and Rationalization Proposals Relating to Production of May 6." In these laws, the inventor was given a choice between a patent where they could exclude others from using the invention or a certificate of authorship. If the inventor chose to to use a patent, he was offered the following rights (Collection of Laws and Regulations of the Peole's Republic of China):
(1) He may use his own capital or form a corporation to operate an enterprise using his invention for production;
(2) he may assign the patent to another person or license it to any organization or individual;
(3) without the patentee's permission, another person may not use his invention;
(4) he may bequeath the patent right, and his heirs will enjoy the same rights as he;
(5) during the term of the patent, the patentee (or his heirs), if he has neither assigned nor licensed the patent, may request the central principal organ [the Central Bureau of Technological Management of the Finance and Economic Committee of the Government Administration Council] to convert the patent right into an invention right.
However, the state retained the power to take control of a patent at any time, thus ensuring that anything created could be forced to be transferred to public ownership. The certificate of authorship essentially gave "ownership" to the state. It provided certain benefits and monetary compensation for the inventors to incentivize this option. The government would then provide awards to those who had especially significant contributions. Tao-Tai Hsia and Kathryn A. Haun stated that rewards were up to about 250,000 yuan, or about $104,000 US dollars (At the time). These patents and certificates of authorship would last from three to fifteen years, depending on what the government decided. While this provided certain incentive to invent, control over the intellectual property was still primary held by the Communist party through the certificates and the power to take control of patents. They justified the protection because the government would use the property to make the life of everyone in society better as a whole.
Further reforms were instituted in the "Regulation on Awards and Inventions" which was issued November 3, 1963. It instituted a key statement, that "All inventions are the property of the state, and no person or unit may claim monopoly over them. All units throughout the country (including collectively owned units) may make the use of inventions essential to them."(Collection of Laws and Regulations of the Peole's Republic of China) This was to further justify patent law in the idea that all property was collectively owned by the government. Analysis of these reforms by Tao-Tai Hsia and Kathryn A. Haun leads that, "The Communist Chinese apparently found the idea of the patent ideologically unpalatable, even if its practical importance had been vitiated by the structure of the economy and the official attitude towards patents." In this reform, patents were eliminated entirely, and there were changed rewards for certificates of authorship. There became five levels of certificates, with each one justifying a certain amount of monetary compensation. The highest level rewarded 10,000 yuan and the fifth level only rewarded 500 yuan. These reforms represent the most traditional Communist views that were enacted in China during the time of their intense communist reform.
Modern Chinese Views on Patent Law
However, modern Chinese laws have been passed that are less representative of traditional communist views. Modern patent law in China was first instituted in 1984, then later reformed in 1992 as well as 2000. The first article in the Chinese patent document specifies that the law "is enacted to protect patent rights for inventions-creations, to encourage inventions-creations, to foster the spreading and application of Inventions-creations, and to promote the development of science and technology, for meeting the needs of the construction of the socialist modernization." In this conception of the law, much of the protection is created to ensure that the ideas a
nd discoveries of inventors are not stolen. Patents can be applied for if any information or similar ideas have not existed in the public prior to the time of application. They provide protection for the intellectual property for a length of twenty years. However, the state still retains the right to force the patent holder to license the patent. If the government determines that the license will provide the community with greater total social benefit, they reserve the right to force the patent holder to provide to the community. In this one way, the philosophy of communism is still followed. The main argument against private property, that it will restrict the development of social classes because of unfair control of the "means of production," is still respected, as the government may take control if actions taken by the patent holders violate this idea. Thus while developing fairly non-communist patent legislation, they maintain their respect for the communist ideology that the Chinese government states it represents.
Despite the laws in existence, in practice intellectual property and patent law are currently not well respected in China. Patents are currently intended to be enforced by the "State Intellectual Property Office." However, there are a lot of issues with enforcement of the intellectual property laws. China has rampant problems with fake or or counterfeited goods. It was estimated that in 2003 53% percent of software installed in Asia-Pacific region was counterfeited. The software piracy rate in China is estimated to be at around 92%. The issue stems from the fact that the people of China are not currently used to respecting intellectual property, from the past communist ideology, and the first intellectual property training site was not established until 1996. China seems to have the capacity to stop much of the counterfeiting and intellectual property violations, but they choose not to because it provides much of the people with a source of of income. There have been recent steps to enforce the violations, including raids of various DVD stores as well as fines, but nothing significant has been attempted. Therefore, while the official stance is that intellectual property should be respected, in practice this is not reflected.
The Chinese government has gradually moved farther and farther away from traditional communist views on patent protection of software. They plan to institute changes that will more and more start respecting the ideas of intellectual property. Though piracy is a huge issue now, they will work towards stopping the free sharing of software. In 2008, Wang Ziqiang, director of the Copyright Management Division of National Copyright Administration of China, stated that China soon plans to state an official strategy of intellectual property protection. This will be a step towards western standards of copyrights.