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Today is a very special day for me.
And I would like to share that day with you
in a traditional way by singing a song.
So I'm going to ask you to share a song with me.
I think you know how it goes.
So, on the count of three if you would sing with me.
One... Two... Three...
♪ Happy Birthday to you ♪
♪ Happy Birthday to you ♪
♪ Happy Birthday, dear Joren ♪
♪ Happy Birthday to you ♪
Thank you. That was lovely.
(Applause)
Now I have two things I have to confess to you.
First: although today is a special day for me, it's not actually my birthday.
And the second confession is, by sharing and performing this song publicly,
we are all potentially liable for going to jail for committing a crime,
because the song "Happy Birthday to You" is still under copyright.
And this is what I want to talk to you about today.
I want to talk to you today about copyright and patents,
those systems that have been developed to promote innovation and creativity.
This is the first point I want to make,
which is that the purpose of these legal tools
is to promote innovation and creativity, to make sure we have more of it.
The protection they offer, the exclusive rights they give
are only the tool to get to that point.
So, if we look at the system,
we need to see: does it actually give society more innovation and more creativity?
And we'll look at the system from three angles, asking three questions.
The first question is: "Is the theory valid?"
It is the argument of the head.
The second question is: "Does it work? Is there empirical evidence?"
It's the argument of the gut.
And the third question is: "Is it fair? Does it feel right?"
It is the argument of the heart.
Because when the head, the heart and the gut are aligned,
we know we have a good system.
So let's look at the theory.
Why would we go to jail if we share "Happy Birthday to You"?
But the reason you would go to jail is to promote the creativity of the authors.
And you can see the authors there.
Unfortunately, they've both been dead for several decades
and the song is almost a hundred years old.
So obviously that makes no sense.
The idea you would promote the creativity of dead people
by sending a lot of people to jail
because they share what they've made is obviously absurd.
But, those are not the two most important flaws in the theory I want to talk about.
For the first flaw, I need you this time not to sing, but to listen carefully.
♪ Good morning to you ♪
♪ Good morning to you ♪
♪ Good morning dear children ♪
♪ Good morning to you all ♪
Now you've all recognized this song.
It sounds very much like "Happy Birthday to You."
But if I were to ask whether you think this is a copy or something new,
whether it's an acceptable innovation or a piracy copy,
a lot of people would disagree.
And it would be difficult to say if this would be allowed or not.
It gets us an important distinction.
Because if you on the wrong side of the opinion, you're a criminal.
If you are on the right side, you are a creative genius.
And I think that doesn't work,
because the distinction the intellectual property theory makes
between a copy and an original,
the distinction it makes between imitation and innovation
does not actually work.
In reality, anybody who has ever created anything knows that any innovation
starts with and consists largely of a lot of imitation.
And most imitation leads to innovation.
So you need both of them to work together.
They are part of the same continuum.
But intellectual property does not agree. It says "No."
When you look at innovation and imitation, you have to make a sharp separation.
One of them is good: "innovation."
One of them is bad: "imitation."
But that doesn't work.
The second flaw in the theory is represented by this slide.
You will see the artist.
And the artist it is said needs protection before he can get to his audience.
But in between the artist and the audience there is somebody else.
There is this middle person, the distributor.
And what we see in practice
is that it is the distributors who actually take all the money.
Artists on average owe 6 percent of their income to the sale of records.
But Warner Music Group, who holds the rights to "Happy Birthday to You"
earned 2 million dollars in royalties in the year of 2008
for a song that was written almost a hundred years ago
by people who have been dead for several decades.
The interesting point is that they are not mentioned in the theory.
So, you have major flaws in the theory.
What about the practice?
How do we know if intellectual property
actually provides us with superior innovation and creativity?
And here we have a slight practical problem,
because in order to find this out we would have to build a parallel universe
because we've had intellectual property for several decades.
So, you'd have to imagine to build a parallel universe with wormholes
between one universe with intellectual property
and one universe free of intellectual property.
With the current state of technology, that's still not possible.
Yet, there is one industry in which we have a competition
between a system with intellectual property
and a system free of intellectual property.
That is the software industry.
In the software industry, we have people like Microsoft and Oracle
who charge license fees.
They use intellectual property to charge for their technology.
And we have open source,
represented here by the Penguin of Linux,
which prohibits the use of intellectual property in their business model.
What we see for more than two decades
is that open source has consistently out-innovated proprietary software.
So the only real empirical evidence we have
strongly suggests that intellectual property
blocks or slows down innovation
and that the system that is free of intellectual property
has superior innovation.
You will say, "What about healthcare?"
We'd all die horrible deaths
if we didn't have the patents for the pharmaceutical industry
to keep us healthy.
Well, not so.
When we look at the facts, we see something different.
Regardless of the source you take,
whether it is the British Medical Journal that crowd sourced its readers
or the American government with the Center for Disease Control and Prevention,
when the most important breakthroughs of medical science and healthcare
are listed for the last hundred years
consistently we find that more than 9 out of 10 of those breakthroughs
came about without any interference of intellectual property or whatsoever.
What is more,
when we see how the pharmaceutical industry uses the patents they have,
we see something very different.
More than 75% of all the applications for new drugs
in the Food and Drug Administration in the United States
are for compounds that are known.
And what happens is that the research focuses on changing them a little bit,
not too much,
so they stay efficient against an existing disease
but just enough to patent them again.
These are called "Me Too" patents.
And more than three-quarters of research goes into "Me Too" patents,
which means that the money the pharmaceutical industry gets
through the monopoly that we give them with their patents
is used not to find new cures,
but to develop further monopolies.
That doesn't seem very fair,
which brings me to the third argument,
the argument of the heart.
Is intellectual property a fair system?
Here we are going to take an evolutionary argument,
an evolutionary approach.
Humans are different from our closest relatives,
the bonobos and the chimpanzees.
One of the ways in which they are fundamentally different
is that we have much richer, broader culture.
Now, how have we come about building this culture?
One key characteristic that has been essential
in enabling us to build that culture
has been our ability to trust.
Humans actually trust each other quite a lot.
When we meet a stranger, we are not like chimpanzees.
They fight.
We are not like bonobos.
They have to have sex to make sure the other person can be trusted.
Now, we have invented this pinnacle of human evolution,
which is the business cocktail reception.
One the most difficult environments in which to survive.
Everybody here has been to one.
So how do we build this trust that enables us to build this culture?
We do it by sharing information and by sharing ideas.
It is an essential human characteristic
to share information and ideas with strangers.
Yet Intellectual Property theory tells us this is wrong
and we shouldn't be doing this.
We should own ideas.
We should charge for them.
We should protect them.
I don't think that that is right.
So why do we have this system?
Why do have this system that everybody says
this is great, this is fantastic.
All governments support intellectual property.
Where I think we are repeating a mistake,
that we made a couple of hundred years ago for the first time,
when we had a system called mercantilism.
Mercantilism was widely supported by all governments.
The theory said that trade was dogy, import was bad,
and export was good.
So what did they do? They taxed the import.
But they forgot that one person's export is another's import,
and the other way around.
We are making the same mistake today.
Let me show you the damage that this does.
These are the books shipped today by Amazon
based on the first publication date,
and you can see it's the 19th century.
This graph actually shows you
the increase in first publications in the 19th century.
So what you would expect
is for this graph to go further up in the 20th century,
because the world population tripled and literacy rates went through the roof.
But, unfortunately, we have the sharp dividing line
between the public domain and copyright.
So what we see is a dramatic difference.
What does this graph mean?
It means that 80% of the cultural production of the 20th century,
which arguably is the most productive, creative, and innovative century
in the history of mankind,
is locked up behind the bars of copyright.
Don't forget.
If you copy, you are a criminal.
I think we should change this.
I think we should look at the system, and say,
let's take a song like "Happy Birthday to You"
and play with it, let's monkey with it,
let's modify it, make a derivative, a ridiculous version
without having to be afraid of being labeled
as a criminal or pirate.
I know we can come up with something like this:
♪ Huuuuum ♪
♪ Happy birthday to you ♪
♪ You live in a zoo ♪
♪ You look like a monkey ♪
♪ aaaaand... ♪
So what I think we need is the freedom to share
and the freedom to innovate,
to acquire the freedom to innovate, because I think we need it.
Thank you.