Distributed Intellectual Product Rights Common Rights, Collective Rights and Intellectual Property
Distributed Intellectual Product Rights
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© 1999-2005
Nicholas Bentley

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Regulating the intellectual component

The solution is to look at the roles of all the components of the intellectual product when considering the production, distribution and trading of an intellectual product.

In my view, it is the intellectual creative component that holds the value for this is the ‘thing’ that the creator would want to be rewarded for or at least identified with. If the story could pass directly from the creator’s head to the consumer’s head the costs of producing the physical components would make no sense at all. Therefore the trading in intellectual products should focus on the intellectual component and not on the physical component as it has done in the past. As Jessica Litman has argued:

"Most fundamentally, I would argue, we need to fasten on some measure of a copyright holders' rights other than the familiar reproduction. The act of reproducing is no longer a useful proxy for the question whether a copyright owner's incentives have been injured, or even insulted. We need to consider alternatives to measuring copyright infringement in terms of unauthorized copies."

The regulatory focus should be on the ‘story’ - not the book, disk, or digital copy in an electronic system.

My proposal, to make this transition from trading the physical component to trading the intellectual component, is that we trade the intangible intellectual component in just the same way that society handles other intangibles such as bank accounts and stocks and shares. In all these cases the original owner is registered, the product identified, and when others buy rights to or shares in these products or businesses these transactions are also registered.

In the case of intellectual property it should be the identified transfer of some limited rights to a unique manifestation of the intellectual product that are traded and this trade in an ‘intangible manifestation’ is registered and regulated.

I am saying that any consumer purchasing a legal copy of a intellectual product should have some identified legal right to the intellectual component even if it is only reading the book once and transferring a single copy to his or her head.

The consumer is recognised as having to have at least some identified intellectual right to adsorb the product into his or her head, whereas, at preset, the purchaser of a physical book, for instance, had no identified right to extract the intellectual component from the book. As I have shown, at the same time, somewhat paradoxically, the intellectual component is ‘unregulated’, as Lawrence Lessig would say, and everyone has the non-identified-right, what I call the common right, to the intellectual component. Anyone can borrow a copy of the book and read it, for example.

Under this new regime, that I am proposing here, everyone will still have the non-identified, unregulated, common right to the intellectual material, the intellectual component of the intellectual product, but will also be able to purchase identified rights to this material. I also refer to these identified rights as collective rights to an intellectual product and I analyze this idea further in the section on ‘Common and Collective Rights’.

What would be the advantages of this new regime? I believe they are many benefits and I will discuss many of the advantages toward the end of this paper. Two particular benefits are:

The ‘recognised’ consumer, who has purchased the product, has what appears to be the minimal benefit of the identified right to absorb the intellectual product into his or her head. This right becomes significant when you consider that, in principle, it provides access to the complete product, on-demand, from the time of purchase onwards. In the digital age, this access should be nearly instantaneous and not dependent on the consumer’s location or the hardware they are using.

The second benefit comes when you consider illegal trading and copying as opposed to general use. The legal and moral situation will be extremely clear [19] . If you have not purchased a registered copy of the intellectual product you have absolutely no rights to do anything with the physical component - not to make copies, lend it, trade it, nothing. For the consumer who has purchased the minimum identified right to the intellectual component they can make unlimited physical copies to protect their access to the intellectual product. Compare this to the current situation that varies from no copies being allowed of some manifestations (books), to maybe one copy for analogue recordings, to an uncountable, but limited number, for digital files.

What system could regulate all these ‘collective rights ’ in an intellectual property? In the next section I will now describe a practical system that takes advantage of digital techniques, the Internet, and the equivalence between a digital manifestation of an intellectual product and its intellectual component. The system itself does not define any rights, that is left for society to decide, but it allows any rights that are granted to be transferred or traded in a regulated manor.

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© 1999-2007 Nicholas Bentley Updated: May 2007