IPR and Art?
Posted by: Trevor in: Dialogues, Fatima Lasay & Trevor Batten > Intellectual Property Rights
1. The Myth of the Artist Genius
Despite the myth of the individual creative genius propagated by Ruskin and others, creative invention (in any field) is largely a process of adaptation and adoption -tempered by the wisdom and folly of the “zeitgeist” (the spirit of the times).
Vincent van Gogh, is now the hero of the many Dutch tourists who visit his museum. The myth of his genius is no doubt invaluable for the rich investors who have acquired his paintings which have been promoted by the collaborative efforts of the international commercial poster industry and the local tourist industry -backed up by professional art historians. There are many vested interests involved in the canonization of any artist. However, for van Gogh’s contemporaries, Vincent was almost completely unknown and sir Alma Tadema was the contemporary Dutch genius who was the talk of the town in fashionable London and the developing international art market. Ironically, in later years there was even an exhibition of the, by then, largely forgotten painter of historical scenes, Alma Tadema, in the thriving museum dedicated to the life and work of Vincent van Gogh.
This nice little history of a fickle (and perhaps misled) public, and the lonely, unloved and misunderstood artist could of course be used to justify the myth of the artist genius. Except that behindit lies yet another story (as there almost always is). Although the Amsterdam “van Gogh Museum” bears his name -it is not dedicated exclusively to his work: It also covers the way he was influenced by other artists too. One of these was the Japanese artist Hokusai -who gained his fame when European artists discovered his wood cuts which were then being used as wrapping paper for imported Japanese porcelain.
Indeed, in the context of Intellectual Property -Hokusai is another interesting figure -because apparently his most famous work “The Wave” was done after his retirement -and after he had already sold the commercial right to use his name. Apparently, Hokusai’s son’s profligate way of life bankrupted his father and forced him to start earning money again -this time without the commercial advantage of his own name: His most famous print -which has inspired generations of western artists (presumably as well as Japanese) was published under the name of “The artist formerly known as Hokusai”….
One wonders how many people visiting Holland because it is the land of tulips and van Gogh’s Sunflowers are aware of the artistic debt Vincent owed to a Japanese artist who was at one time almost as obscure as he himself had once been.
The history of art is full of such stories -where the myth of the “genius” of the artist can only be maintained by obscuring the role of their mentors plus the context which not only gave birth to the work but also created the conditions that made it so popular.
2. The Economic Argument:
So is economic advantage the prime motivator for creative thinking?
If creative development is indeed the result of a nexus of exchange, adaptation and adoption -then commercial interests may actually slow down true innovation.
A Dutch poet once wrote that “People think that genius is a gift from God -but in fact, it is an escape strategy”. This seems fairly consistent with the fact that many truly “successful” people, were (like van Gogh) a “failure” before they became successful (often in non-financial terms). Apparently, Einstein was also a poor scholar -and perhaps it was his experience of deviance from the accepted intellectual norm that caused him to write that it takes ten years to do the work, ten years to make the public understand it -and another ten years to persuade the public they misunderstood it the first time. So it seems that truly “innovative” ideas are more likely to come from those who struggle to understand contemporary ideas -rather than from those who are simply able to express them perfectly -and are thus not forced into exploring new approaches which are more logically comprehensible to the abhorrent nit-picker….
Clearly, within a system of “adaptation and adoption”-the adoption (by society -or by a commercial exploiter) is at least as important as the original innovative adaptation. The danger is that within an entirely market driven economy -the “adoptor” may get all the financial rewards while the original adaptor may be forgotten. This may not sound important from a financial perspective -but within a truly innovative process, it might be fatal: Simply because the financial imbalance encourages the wrong kind of development. Overprotective music and software industries (created by large globalised commercial semi-monopoloies) may well already be in decline -which is why they feel the need to vigorously chase after “pirates” simply because they themselves do not understand the delicate nature of the creative process.
3 The Alternatives:
a. A Basic Re-evaluation:
Presumably “IP piracy” is (on one level) a solution to a problem: It provides goods and services to those who could otherwise not afford them. It also provides employment for “anti-piracy” teams paid for by those who believe that they are “losing money” because of the piracy. The question that is apparently not asked at this point is: How many of the “illegal” sales would have taken place if the illegal copies had not been available?
So, if on the creative side, there is an apparent lack of appreciation of the importance of both the “inventive” and the “exploitative” aspects of the creative process -so is there in economics apparently a lack of understanding of the importance of distinguishing between purely hypothetical monetary problems and problems of real people in the real world that have not yet been monetized in terms of profit and loss accounts. If one looks at daily life as experienced by “normal” people -then one sees that “creativity” is generally driven by the need to solve practical problems and not simply to make a profit in some abstract (post-Bretton Woods) monetary system. Indeed, if one looks at those actually pursuing people for illegally selling “their” intellectual property -one will not usually find the original inventor chasing lost income -but on will find a corporation who has often “acquired” these property rights simply by buying up another company who had “bought” the rights from somebody else. In fact, the “monetization process” generally seems to prefer to create problems -in order to sell solutions (which to be economically effective must create more problems) rather than actually “solve” anything.
As a result of these considerations, it would appear that IPR’s are not a fundamental problem -but a symptom of more fundamental failures in the conceptualisation of our global economic system.
Historically, the concept of a “free market” was seen by Adams (the recognised “father” of the idea -who presumably did not patent the idea) as an unbiased way of making complex decisions (with regard to prices) in a way that benefited the “common good”. However, the fundamental simplicity of the original idea has subsequently been perverted in several ways by later developments -including the pernicious ideas of Thomas Malthus, who preached that aiding poverty only increased poverty (because the poor continue to have children that they can’t afford) -plus the rise of the commercial corporations which undermine the basically “individual” nature of the “free” market. Malthusian concepts (based on exploiting scarcity) are particularly misleading in the context of industrial and post-industrial society -where the problem of finding markets for a plethora of cheaply produced goods is perhaps even more pressing than genuine problems of scarcity (except perhaps with regard to basic essentials such as fresh food, clean air and unpolluted water).
As part of the necessary re-conceptualisation process -we may need to consider (at least) the following points:
- Universalism:
One of the major problems in western culture is the absolute belief in a universal objective reality. This religiously held belief prevents any understanding of the fact that a diversity of environments, with different living conditions, different problems and different solutions are probably essential to preserve a complex conceptually creative dialogue -in exactly the same way that complex interactions between physical environments are also proving essential to the preservation of human life. Monoculture -either biological or conceptual -is a form of suicide. Imposing a uniform system of globalised market forces coupled to international sanctions for any deviation -increasingly seems to be a disastrous form of commercial monoculture.
The international art market is unfortunately no exception -and is therefore a serious threat to a conceptual ecology involving creative interactions between varieties of local cosmologies.
The conceptual eco-system involving local variations in worldviews and practices needs to be preserved and encouraged to develop where possible -preferably outside the conventional global economic monoculture.
- Monetization:
Since Bretton Woods, money has become a virtual commodity -subject to the laws of supply and demand which it is supposed to control via a “free market”…. Not only are the prices of goods and services determined by the price that somebody is prepared (or forced) to pay -the value of the money used to pay for these goods and services are equally subject to the same volatile (and perhaps arbitrary controllable) forces…. In practice, as demonstrated by the way commercial systems often focus on commercially exploiting the creative adoptor, often to the cost of the original innovator -”market values” often distort real practical values: Humans cannot live without food -and yet the prices paid to farmers are often deliberately distorted so they become low -while producers of unnecessary artificially manipulated luxury goods remain high.
The art education system has long lost any serious set of criteria for the teaching of art -and this has been exploited by art critics, art historians, galleries and collectors to provide a completely opaque system of creating and promoting commercial values -which have no practical value -although they may have an ideological basis, insofar as they promote fantasy lifestyles and commercially exploitable value systems.
In the meantime -the advertising industry, backed by academic scientific research -has developed a coherent system of social indoctrination which creates artificial demand for products that are often at best useless -and at worse a health hazard. As a result, even poor countries where many people are suffering the effects of malnutrition are simultaneously dealing with the problems of obesity, alcoholism, and polluted air and water supplies -and/or drug addiction.
What kind of economy is it where doctors re-train as nurses in order to emigrate -while farmers starve and others need to work abroad to earn money for a foreign lifestyle based on imported goods produced by cheap foreign labour?
In a commercial system, a popular artist need not be a good artist. The “art market”, based on the sale of commodified concepts and aesthetics, has become an integral part of a propaganda system which propagates the conversion of viable “cultural” behaviour patterns based on local conditions into (temporary) generators of commercially exploitable lifestyle products.
There needs to be a re-focusing away from artificial monetary values -in an effort to rediscover the functional role of concepts and materials within a living culture. Local cultural groups need to ask how local (and global) practices encourage or inhibit the well being of local individuals and groups.
- Individualism:
Perhaps the biggest paradox in western globalised culture is the role of the individual: The myth of the lonely artist genius -and the expressive importance of the individual as artist -discourages collective effort on a social level -while the globalised economy relies increasingly on the collective effort in the form of gigantic multi-national companies that are beyond direct national control.
Culture -as a locally shared set of practices based on a common world view -primarily operating as a social problem-solving system -becomes fragmented and destroyed so that the “individual” becomes isolated and vulnerable to commercial exploitation.
Collective protection against collective commercial violence is labeled as subversive -and is fought against globally -on an ideological and a practical level through international trade agreements and military action if required.
The commodification of individual intellectual property rights incorporates the artist into an economic system that destroys the very diversity that creative individuals fundamentally need to provide a wide nexus of both problems and potential solutions -that can be adapted and adopted in a diverse range of experimental and exploratory contexts.
Paradoxically, a herd of identical creatures is the only way to give a group of individuals an equal chance of survival against a common predator -while operating in a cooperative group enables the group to exploit individual differences for the common good.
The myth of the individual creative genius undermines the shared intelligence of the group -and destroys the collective defense against external exploitation by predators.
The fact that economists do not know how to commodify and price something should not be cause for it to be rejected as “worthless”. The potential value of communal effort within various social systems need to be evaluated to see how they actually compare with the value of collective effort within the commercial corporate structure.
- Accounting and Accountability:
A major problem with the perverted “free market” as a result of its mutation by global corporations -is the lack of coherence between accounting and accountability: Simply put -the profit and loss accounts of the various commercial actors have no relationship with the actual gains and losses experienced by the majority of people who (are foreced to) participate in the system.
In artistic terms -the profits made by selling a painting by (for example) van Gogh do not generally benefit the causes espoused by the artist -and usually do nothing to alleviate the potential suffering of similar individuals.
On a cultural level -the destruction of indigenous culture by global exploitation in terms of lifestyle products -does very little that actually helps to preserve the cultural context that was essential to the creation of the commercially exploited product. The culture/tourist industry is rapidly turning into a totally destructive form of conceptual mining. Some way of linking financial accounting to actual (non-financial) social profit and loss accounts need to be made.
Perhaps a wider range of “social accounting and financing” systems needs to be developed -expanding and developing existing systems such as:
-Collective (Monastic/Tribal/Academic) Systems: Where collective riches are used to provide work and living conditions intended to alleviate the individual poverty of those working for the collective good.
-Chaining Systems: Where those that profit from using a set of skills pay a percentage of their earnings to the source of those skills -which is then passed on to those who contributed to the previous level…. i.e. the ex-student pays the master -who pays his master -and so on, down the chain…
-Social Capitalism: Where commercial investments are not made by individuals -but by social investment systems (such as pension funds, or micro financing systems, etc). Such systems might need greater social control by the shareholders over the kind of projects funded.
b. Culture, Choice and Democracy:
The idea of democracy is obviously a farce -without real choice for those involved.
Originally, the idea of a free market was to provide an unbiased solution for prices within a supply and demand system involving the essential commodities of daily life. Before Malthus, the free market was not seen as being inconsistent with the common good. The idea of the “free market” was actually intended to reduce centralised and perhaps arbitrary human decision making from the system -by leaving the market to find the essential balance between the various possible decisions.
However, theories based on the idea of a free market should not be considered valid in a context where large scale commercial corporatism have been coupled to mass-production, mass-marketing, mass-media and a single globalised economic system.
On the other hand -the failure of large scale centralized planning systems in both the Soviet Union and Maoist China would not suggest that such systems are a good alternative to a corrupted free market system.
If large scale centralism (and a perverted free market) both seem to be unable to create a humanised balance between production, distribution and profit -then perhaps the other possibility would be to increase local diversity based on a truly democratic system of local choice -relevant to the material and cultural needs of those involved. The European middle-ages -with their patchwork of local guild controlled economics and experimental variety of local government, commercial and church systems was theoretically a period of stasis -and yet in practice, it seems to have been a period of rapid evolution -which has continued to evolve into the current globalised system. The free market may have been a part of this evolution -but it may not have been an essential part of it. As global diversity continues to decline under monolithic global consumerism -we may well discover that the local diversity found in the Middle Ages may well be a greater creative force than the free market, which gradually came to destroy that diversity.
If we remove the hidden hand of the illusory “free market”-then we re-introduce the possibility of human choice in the design and implementation of the socio-economic system. True, thereis probably no objective basis for a universally satisfactory system -but the impossibility of finding a universal solution may well be the most valuable aspect. The lack of universality, allows the possibility of (or indeed forces the need for) a wide variation in choice over the fundamental principles which underlie any local system.
Interestingly enough, the kind of choices that need to be made -how “individual” or how “collective” is the system -what are the basic principles involved, how important is “truth”, “justice”, “equality”, “tradition”, “authority”, “face-saving”, etc… can all be seen as decisions with no rational basis for the choice. Therefore -they could be seen as expressions of the local cultural “aesthetic.” Indeed, the very material that artists are supposed to be involved in exploring.
Presumably, it would be of great value to us all if artists stopped supporting the international art market in its destruction of local culture via the commodification of cultural artifacts and concepts -but instead used their skills to explore the practical consequences of the various social aesthetics. Such a programme would present individuals (and groups) around the world with the range of choice it needs in order to have a genuine democratic choice.
c. Choice and Mental Health:
Released from the constraints imposed by the false economics of a pseudo free-market system, it would become clearer that many people are creative not simply because of the money -but because of the deeper need to solve some practical (or perhaps even theoretical) problem within themselves or their (local) society.
A rising incidence of stress and mental illness in the (western) world might also suggest another important reason for being creative: Simply because it is an essential condition for mental health. Research is increasingly revealing that the main cause of stress is a feeling of lack of control with regard to pressing problems facing the individual. Despite the myth of “consumer choice” -modern society simply does not provide a system of real choice.
Behaviour patterns and a way of life based on commercially distributed belief systems are being increasingly forced upon us economically, politically and socially by powerful, invisible and uncontrollable international interests. These forces are not only outside our conscious control -the actual practices are also often fundamentally contrary to the social and political theories seemingly propagated by these forces. We are told to express ourselves -but we are economically, socially and sometimes even physically punished if we do so in ways that are outside the fine limits laid down (invisibly and hypocritically) by a social-commercial-political system which is increasingly smothering us in inescapable ways within its unspoken value system. This is presumably the main source of stress -but if this was to be publicly admitted then it would also be a public admission of the failure of a dishonest global system.
Perhaps we are already facing a global “Catch 22? situation: Living with the current lack of real choice within modern global culture probably drives a person mad -however, this madness is probably what allows us to accept the insanity of it all.
So the truly fundamental question might well be: Can a global system run by, and for, mentally ill people still survive -and will the commodification of Intellectual Property Rights solve the situation?
Probably not -one might answer…. but what difference does it make: The regeneration of a viable, intelligent and healthy social-cultural-economic system is hardly likely under the present commercial regime.
Trevor Batten
June 30 2007

October 11th, 2007 at 8:36 pm
My interest in the IPR issue was agitated by a newspaper feature four months ago, where the Intellectual Property Office of the Philippines (IP Philippines) celebrated World IP Day with member states of the World Intellectual Property Organization (WIPO). The centerpiece of the local celebration was the opening of an art exhibition in a gallery space called “Alab Art Space” located at the ground floor of the IP office building. “Alab” boasts of being the first art space in an IP office in Southeast Asia.
News of the IP celebration was published in a special section called “Exhibits Asia” in The Philippine Star, Thursday, April 26, 2007.
Some observations:
1. There were three news articles: (a) IP Philippines celebrates World IP Day, encouraging creativity among Filipino artists, entrepreneurs, inventors; (b) BSA awards citation to Pilipinas Anti-Piracy Team; (c) Pilipinas Anti-Piracy Team cracks down on users/sellers of pirated software in Davao City.
2. Advertising was by Lacoste, Business Software Alliance (BSA), Microsoft, Vera Law, BNU Intellectual Property Attorneys, iProbe (investigation and consulting firm), and the Pilipinas Anti-Piracy Team (PAPT) consisting of the National Bureau of Investigation, Optical Media Board and Philippine National Police.
3. The special section of the newspaper celebrating World IP Day included not a single mention of alternative IP domains such as the commons, open-access, open-source and copyleft licensing.
I think that the IPO and the Philippine government has been very irresponsible with their programs on IPRs. While it is true that their mandate is towards IP protection, their information campaign should present the public with the broadest unbiased picture of the domain that they subject to their protection campaigns. Isn’t there anything else in the IP domain but Microsoft, anti-piracy and creatives-inventors being celebrated as paranoids of any imitation of their work? Whatever happened to public domain, the commons, the collateral costs of strict IPR implementation and downstream licensing, the social costs of monopoly through IP legislation?
Part of the mandate of the IP Philippines is training, campaigning and servicing for the protection of intellectual property right (IPR) as an important strategic tool for national development in the current global knowledge economy. Towards this, the IP Philippines has signed an MOU with the US Patents and Trademarks Office for the joint effort of safeguarding local and US IPRs in the Philippines, upgrading Philippine intellectual property law to be at par with international standards, and the creation of mechanisms by which patented technologies may be commercialized.
Is commercial interest and profit all there is to creativity? Whatever happened to social welfare and responsibility? It is utterly disgusting that the Philippine government, the IP Philippines, the IPO and the WIPO seem only to be capable of promoting economic progress through socially inefficient monopolies.
The showcase of the IPR mandate is the arts. And there are good reasons for this. First is that Philippine art has been successfully shaped within the context of a western capitalist society, fitting perfectly with the ideology of intellectual property rights (aka intellectual monopoly). Within such an environment, one can get away with fallacious statements such as this:
“Protection of intellectual property rights helps stimulate creativity and innovation. This hastens the growth in their respective sectors, which leads to national development.” - IP Phils director-general Adrian S. Cristobal, Jr.
If this was true, then the period from ancient human history to the 19th century would have been utterly devoid of any creative or innovatory output because there were then no ‘protection of intellectual property rights’!
I certainly hope that we haven’t yet locked ourselves away in a Catch-22 situation, and that Filipino artists are still capable of thinking before they contribute to the IP campaign.