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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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