[pp.int.general] Lissabon Treaty: very bad news

Reinier Bakels r.bakels at planet.nl
Thu Apr 24 08:13:44 CEST 2008

I don't think we really disagree.

I fully acknowledge that "intellectual property" is a misnomer. So did the great legal scholar Josef Kohler a century ago when he proposed the term "immaterial goods" instead. There is a famous paper by Machlup & Penrose from 1950 about patents where they explain that clever interest groups in the 19th century abused the ideas of the French revolution and propagated a false similarity between real and intellectual property.

The ECHR and GG provisions I refer to have a different meaning, and I think the Lisbon treaty provision should be interpreted in the same way. Once someone owns e.g. a copyright, it can not be taken away by the goverment at will. Things than can be put on the balance sheet can not be disappropriated by the state at will.

Re "dishonest": this is about the idea of unwritten intellectual property rights. This is the kind of extension that is advocated by people who make the wrong interpretation of the Lisbon Treaty provision. PP should strongly oppose against that. Another example (next to "know how") are domain names. Some people argue that a domain name should be protected by a property right (there you go again) by itself. I would argue that the exsisting legal systems, notably trade marks, trade names and copyright should suffice and anything beyond that should ne rejected. Protection for generic names (e.g. business.com) is preposterous. The alleged need in society can never be an argument. Occasionally I have the desire to beat people if I am very irritated. Still it is not allowed.

In sum, imho there is nothing against protecting property, as long as the fundamental difference between property and "intellectual property" (I always put it in quotation marks) is acknowledged.  

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  ----- Original Message ----- 
  From: Carlos Ayala 
  To: Pirate Parties International -- General Talk ; internacional at partidopirata.es ; rrpp at partidopirata.es 
  Sent: Thursday, April 24, 2008 1:14 AM
  Subject: Re: [pp.int.general] Lissabon Treaty: very bad news

  ----- Mensaje original ----
  De: Reinier Bakels <r.bakels at planet.nl>
  Enviado: miércoles, 23 de abril, 2008 23:52:28
  > For a proper understnding (and political response) a sharp distinction must be made:
  > 1. Property rights ONCE LEGALLY ASSIGNED should not be taken away from people by the government without a 
  > careful procedure and only with a careful disappropriation procedure. This is the true human right. By now, it is 
  > fairly obvious, but it has not always been. In Europe it is the result of the French Revolution. In China, its was 
  > established only a few years ago. BTW this aspect of property also helps authors to refrain from commercial 
  > exploitation (copyleft!). If a government decides by default assumption that all authors want to be financially 
  > compensated, e.g. by a levy, they actually violate this human right!

  I will merely forward you to our most recent PPI document -about levies consultation-, concretely The premise of copyright levies section. If you read it carefully, you'll find out that:

  - opposing the intellectual property -even using that term provokes me some kind of allergy :)- is not opposing private property -in fact, as greatest private property supporters usually explain (we put Kinsella as a mere example), intellectual property does not exist, cultural works (as long as not meeting scarcity principle) shouldn't be treated as private properties; simply, their authors hold some rights (moral and material) on those works-; why, then, using China as an example?
  - if you take end-of-XVIII revolutions as examples, then also take Thomas Jefferson's words to check how did parents of USA consider ideas, innovation, etc
  - sticking at XIXth century concepts and ideas -Berne Convention-, instead of using critical thinking, seems not recommendable to me; I would even dare to extend this belief to most of PPI members, as long as all those pirate parties signed the reply to EC Levies Questionnaire supporting the idea of cultural works not being intellectual property.

  Only if we agree about not considering cultural works as private property; and only if we don't forget that we stick to UDHR -i.e., acknowledging authorship, material interests (which shouldn't be equalled to private property rights because of the above mentioned), etc-; then would we be able to understand that if current author's rights configuration is found to be excessive -in terms of UDHR itself, article 30: any right not to be interpreted as enabling to harm other rights-, redefining author's rights is not a disappropriation/expropriation procedure. First of all because you cannot expropriate what is not a property -would result ridiculous being myself called communist, when as I said before highest private property supporters deny cultural works being private property-; and finally because rule of law observancy is mandatory ... not only it is in the author's rights redefinition, but also it had to be between 1948 and 1967 when UN created WIPO from the remains of BIRPI -in my opinion, trying to equal the UDHR "moral and material interests" formula, to the pre-UDHR intellectual property fallacy-.

  > 2. The risk however is that one will interpret this provision in the sense that any information is entitled an exclusive 
  > right ( "intellectual property right"). This is what PP should oppose against. Traditionally lawyers agree that 
  > freedom of information is the rule, and exclusive rights are the exception, if and when established explicitly by law: 
  > copyright, patents, trademark law, etc. There is a tendency however to accept an alleged need for unwritten 
  > intellectual property rights, such as know how, e.g. because it is an important asset for firms.
  > But an interpretation of the Lisbon treaty in this sense is wrong, if not outright dishonest.

  Thank you very much for being considered outright dishonest. Seems like some words, sometimes, were too lightly chosen.

  Actually, the left aside European Constitution -reduced and dubbed as Lisboa Treaty-, when encouraging defence of intellectual property, does not defend private property, nor individual authors' rights -in Spain, France and other countries, small formal rightholders have no actual voice about their works, but RMOs and big companies-, but all those firms, Big Four stuff, RMOs and other lobbies interests. We are talking about privileges, we are talking about unbalanced and unequitative justice system, we are talking about few's rights over many's rights ... we are talking about might vs right.

  And when might and not right is on the table, who are the mightest ones? Usually not the righteous ones.

  You have some examples on press clipping and reduction of quotation rights to see by yourself how the interpretation of Lisboa Treaty that you think would be wrong is actually right, unfortunately more right than ever. Regards,

                                                                   Carlos Ayala
                                                                   ( Aiarakoa )

                                                   Partido Pirata National Board's Chairman


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