Intellectual Property

Contesting the Domain of Discourse about Intellectual "Property"

Some of us feel disarmed and powerless when entering into discussions about intellectual "property", because a lot of the terminology is not neutral. The vocabulary used by the IP establishment is not neutral, and stakes out a legitimacy it doesn't deserve.

This section is for developing alternative language, arguments and approaches to discussion about copyrighted materials, that is either more neutral, or more sympathetic to the movement for free content and free expression.

• we can (and should) question the premise that ideas or their expressions are fundamentally similar to material goods or property, and that ethical assumptions about ownership of material goods transfer unproblematically to ideas and their expression.

• we should reject the analogy of "piracy" used to refer to unlicensed use of copyrighted material. There is no similarity between armed robbery on the high seas, and using some cultural work (in a manner that might fall under "fair use"). Even obvious copyright infringement such as selling an authored work commercially without paying royalties to the author is a very different level of ethical conflict than armed robbery. It is a civil dispute between someone who wants to collect rentier income on a temporary monopoly granted to them for a reason, and someone acting as a free cultural and economic agent and ignoring that claimed monopoly.

• IP discussions often revolve around "protecting" intellectual property. This immediately pits the haves versus the have-nots, and immediately takes the side of those who already have (a claim to) intellectual property. And yet the ethical justification for granting copyright is to encourage the production of creative works in society. Shouldn't society's default ethical stance be in favor of the have-nots, and directed at encouraging them to start creating works of cultural value? It seems that "fair use" (in education, in "sampling" works, in performing or enjoying it on a non-commercial basis) of copyrighted material by those who are not collecting copyright income (the have-nots) is a more basic way of advancing the underlying goal of encouraging cultural production. We need to shift the focus from protecting the (temporarily-granted monopoly) rights of the haves towards promoting new creation of intellectual works especially among the have-nots.

• Copyright discorse also speaks of distribution and redistribution of information. This further develops the image that information is a good, a material thing. Information isn't distributed or redistributed, information is communicated.

• It may also be prudent to differentiate between levels of abstraction. Information at the highest level can't be 'copied' as there is only one abstract instance of the information. This infomration may be described, and the descriptions can have many copies but all copies describe the same information.

• Copyright is also interesting from a mathematical sense. Consider how information is communicated in a digital network. First the information is encoded into a bitstring which is then communicated together with the description of a function that maps from the set of bitstrings to the set of potentially copyrighted works. Normally the focus is on the bitstring, when someone has been found guilty of communicating a 'protected' work they have merly communicated a bitstring. The simple fact that any work can be encoded into any bitstrings means that the communicating of the bitstring per se can't be viewed as illegal, the bitstring can represent any work, protected or not. It is only when a particular function is applied to the bitstring that the 'protected' work is retrieved. The conclusion is that copyright infrigement can't be about trasnfer or distribution, it must be communication, because the illegal act can't be commited on the concrete level of data trasfer. The illegal act is the communication on how to derive a particular experience or service from the transfered data.

Cultural Commons Model vs. Property Model

Copyright can be seen a limited exception to a larger cultural commons, or it can be seen as the legal enforcement of property rights on intellectual expressions.

People are born free, as recognized in the International Declaration of Human Rights. They are free cultural actors and free economic agents. Society may impose some limits on those freedoms through democratically established laws, but there needs to be a sound ethical and legal basis for those limitations. Copyright grants a temporary (in the US, the "founder's copyright" was only 14 years) monopoly on reproducing intellectual products to one agent, the creator (or the creator's corporate publisher) at the expense of the freedom of others who might want to use and copy it. The ethical justification for limiting freedom of the many in favor of the few, and supporting the right of the creator or publisher to collect income beyond the costs of creative production is to encourage more creative production. The income of the creator or publisher becomes a rentier income, dependent on that temporary monopoly. Their interest in protecting this rentier income needs to be balanced against the interests of other free persons who would benefit from using and copying some intellectual product.

Society has other successful ways of promoting cultural creation. Science, for example, benefits from the free dissemination of research papers and scientific results in a sort of scientific commons.