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When I look at the premise of copyright law, that creative
work has to be fixed in a tangible form before copyright can
be granted and then it is the physical copies that are regulated,
I see a fundamental weakness. This premise overshadows the fact
that the result of this creative work, the creative product, continues
to inhabit the mind in intangible form even after its initial birth
in the tangible world and it is this intangible creation which is
valuable not solely its physical manifestation. I will argue that
when the tangible vehicle for distributing this intangible product
was a physical object, such as a book, this weakness was not apparent,
while today, when the vehicle is often packets of digital information
(that appear to have some intangible qualities themselves), this
weakness, I allude to, becomes significant.
I propose that it is time to rethink our approach
to intellectual property from first principles. Hence, in this paper
I analyze the structure of ‘intellectual products’, their
tangible and intangible elements, and through this analysis I establish
a new rationale for dealing with these products. A rational that
suggests it is time to start dealing with the message rather than
the medium. I then propose a digital system for implementing this
rational and examine how this system can address the copyright troubles
mentioned above. This new regime for intellectual
products will provide a structured intellectual rights environment
to protect the flow of information and provide new business models
for trading and distributing intellectual property.
For the purpose of this discussion I make the assumption that creative
work is real work which requires physical time and effort on the
part of the creative individual and that society agrees that the
creator should be rewarded for
that time and effort. At a minimum the result of the creative work
should be credited to the creator and in most cases the creator
should be able to gain some financial benefit for his or her efforts.
Copyright rewards the creators by granting them a limited monopoly
over the expression of their ideas while maintaining that the actual
ideas are freely available to all. I realise that there are some
who argue that the expression of the ideas should also be made available
to all, thus totally protecting the free flow of ideas. I do not
intend to argue for or against either point of view but to show
how my proposed solution guards the balance between information
flow and providing incentives for creators and how it has the surprising
result of addressing both. My initial discussions focus on identifying
and rewarding the creative effort and I ask those with a different
philosophy to bear with me for the moment.
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