How You Can Create a Better World: A Primer on Ethical Intellectual Property|PT. 3


This is Part 3 of a three-part series on ethical IP. For background, read Part One and Part Two


In part 2, I described how the intellectual property (“IP”) morals clause has enormous potential for economic activism. It’s something that we badly need if we want to ensure that our own IP doesn’t end up fueling unethical supply chains, and it’s something that nobody currently uses.

The IP morals clause also offers us another kind of opportunity: through collective action around IP morals clauses, we can fundamentally transform the ways in which art and IP operate in the global economy.

By “art,” I mean that which is deemed art under intellectual property law. And that’s practically everything. Copyright law is what creates our rights to exclude others from our creative expressions. And copyright law does not care whether or not what you’ve made is any good from an artistic perspective. Instead, as I discussed in parts 1 and 2, copyright law simply asks that what you’ve made be a shred more creative than what it takes to put a telephone book in alphabetical order in order for copyright to apply. Patent law is what creates our rights to exclude others from actually practicing and commercializing an idea. The fences around those ideas are constructed out of words, or “claims,” that describe and tell the world what it is that’s off limits for the next 20 years (i.e., the life of a patent). Patents are a more powerful property right than copyright because it’s not just the creative expression of the words that comprise a claim that a patent owner owns: it’s the idea that the words themselves are describing. Trademarks are words, symbols, images, smells, or whatever else you can etch into some medium that will help people readily discern who and what made the product or service that the trademark is attached to (i.e., the brand behind the product or service). I like to think of trademarks as the ego of the product: the thing that makes two otherwise identical products, different. As we know from trademarks like Prada, Trump, and Amazon, egos can be expensive. There’s a hodge-podge of other intellectual property rights and quasi-intellectual property rights, but these three—copyright, patents, and trademarks—are the biggies.

Everything that is protected by IP is, at least for the purposes of the political economy, art. The U.S. Constitution even calls the stuff protected by copyrights and patents “art” in the Progress Clause. Why is that important? Well, in addition to underscoring that connections drawn between human progress, art, and IP is as americana as the U.S. Constitution, it sets me up for a punchline to introduce what activistartmachine is all about.

Activistartmachine is, quite literally, a work in progress (....eh?...Progress Clause?...fine, I rolled my eyes, too). It’s a he, she, I, you, it, they, them, me, we, and a cat: an economic intervention of modern folk art. Made for and by whoever wants it, and owned by the same. Activistartmachine is a weapon of the weak, a jubilee of the commons, something that can transform snowflakes into snowstorms, and someone that makes covenants in rainbows.        

Activistartmachine asks us to explore what it means to create and to push the boundaries of creative freedom, all in pursuit of our collective liberation. It’s an imagination station: Imagine what would happen if we each professed ourselves, vocationally, as artists in our craft? Would that make us performing artists when we work? When we protest? Would that mean that corporations couldn’t record us for fear of copyright infringement? Would that make the data we create a part of our art? Imagine what would happen if we each began to work under the same IP morals clause? Could we reach consensus on such a clause? Would doing so enable us to install the types of ethical and moral standards into the economy that civil liberties and human-rights legal frameworks have thus far been unable to achieve? What do we lose if we try?

Activistartmachine is a way to raise consciousness around the role of intellectual property and the power of the commons in the modern economy. Anyone who wants to create in the name of activistartmachine is free (and encouraged) to do so, so long as you do so in nonviolence, in consideration of the Golden Rule, and in celebration of however you experience your own freedom to create. I’m in the process of registering a defensive trademark for activistartmachine so that these rules can be enforced. How, exactly, will these rules be enforced? I’m not yet sure, mostly because I think that should be decided as collectively as possible. That being said, I am an intellectual property litigator with a lot of experience using intellectual property and international trade law to stop corporations from infringing intellectual property. So if you’re a corporation wanting to use activistartmachine and you’re not ready to commit to ethical supply chains (something I see as both an act of violence and a violation of the Golden Rule), you may find that testing these rules isn’t good for your business.  

I’m going to be curating my experience with activistartmachine on social media @actartmachine, and here. If activistartmachine ever gets lost, you can take it back to the lab and ask for repairs. But otherwise, you know, buyer beware.

From here on out I think it’s best to show by doing. Activistartmachine is, after all, supposed to be about art. And about the questions we ask ourselves when we produce and consume art.    

So now, I give you my rendition of my activistartmachine’s emotional DNA: the birth of activistartmachine. The DNA is in the structure of their song:

The structure of the world

The freedom of the world is sweet.

has made kindness, cruel.

          it lacks the bitterness of cruelty.

And it’s this daily loss in kind

The freedom to celebrate in kind

           kindness,

           of kind kindness.

that breeds our alienation in the world.

Lies in the freedom to create.

When simply being kind

examine the structure

           can force us to oppress,

           of the knowledge economy

we have to free ourselves from oppression.

and liberate.

           We have to/we can=> free ourselves from a kind.

           liberate ourselves in our intellectual property.

A kind of kind kindness,

A kind of kind kindness

           that has turned us cruel.

           that we can celebrate in the commons.

Cruel in the structure of the world.

Freedom in the structure of the commons.

Cruel in the structure of the mind.

Freedom in the structure of the mind.

Cruel in the terms of our creation.

Freedom in the terms of our creation.

Cruel in who we exclude and where we divide.

Freedom in who we exclude and where we divide.

Freedom to never do neither.

Freedom to help us evolve.

Freedom to live in nonviolence.

Freedom to decide when to forgive.

Freedom to decide.

Freedom to create.

the birth of activistartmachine.