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Copyright law, as it stands, only recognises the intangible
creative work once it is fixed in a tangible form and thereafter
only regulates the expression of this work through control of the
reproduction of its tangible manifestations. I find that this distinction,
which copyright makes between the intangible and tangible, is not
always clearly recognised and the regulation of tangible copies
confuses the issue of dealing with intangible creations. It is often
forgotten that it is the intangible message that is important not
the distribution medium and the copyright focus on the physical
medium reinforces this erroneous view. There is further confusion
as to what is at stake because copyright only protects the expression
of the idea, not the idea itself. My intention in this section is
to clarify the situation and in so doing present an improved method
for defining 'copyrightable' material. This will lay the groundwork
for defining what should and needs to be regulated and how. First
I identify the ‘components’ of an ‘intellectual product’
and analyze how these individual components are created, combined,
distributed, used, and where and when copyright is applied to this
creative work.
I define an Intellectual Product
as consisting of two components; the intellectual and the
physical. In the case of a book
the intellectual component would be the 'story' and the physical
components would be the paper, ink, binding, etc,.
Intellectual product = intellectual component + physical
component
The intellectual
component is the intangible part of the product that is the
result of the creative work – The ideas, concepts, and discoveries
and the expression of these elements. (Note, it is only the expression of the intellectual component that
is protected by copyright.)
The physical
component is the expression of the work reproduced in a physical
medium and includes the physical materials used and the production
work involved in creating the physical manifestation of the intellectual
component.
Now, consider the sequence of events involved
in creating and publishing a book and subsequent use of that book:
If an author composes a story
solely in his or her head, I say that they have created the intellectual
component, of a new intellectual product, which is intangible,
no one else, at this stage, having access to it.
Immediately the author produces a physical component,
in the form of a manuscript say, the story and composition become
tangible along with the manuscript. At this stage the author can
claim copyright for his or her creation and in many copyright regimes,
such as in the USA, copyright is established automatically. The
copyright granted to the creator will protect the expression of
the story in all its physical manifestations. If the one and only
manuscript is now destroyed does the copyright for that story still
exist? I don’t know, but I do know that the intangible story
still ‘exists’ in the author’s head and no tangible
copy exists. The author has the right to re-write the manuscript.
The author now exercises his or her copying-rights and publishes
the manuscript in the form of a printed book. This book, a complete
copy of the intellectual product, is sold to someone else
whom I call the consumer. The
consumer can to do the following things with this book they have
purchased:
·
They can read the
book and in so doing transfer the intellectual component
of the intellectual product into their head.
·
They are allowed
‘fair use’ to the intellectual product such as quoting
short sections of it.
·
They own the physical
component of the product and can do the following with it:
o
Destroy the book.
o
Write over the
pages.
o
Under the ‘first
sale’ rule they can lend the book or sell it to another
consumer.
Do they own the intellectual component?
Not in the sense that the author owns the copyright to the original
work but they appear to have some ‘right’ to hold this
intellectual work in their head since they bought the book and were
allowed to read it. The idea behind the story is unregulated and
therefore there is no rights issue with respect to the idea but
there is an issue in respect to the expression of the idea.
When this consumer subsequently sells the book
they give up all access to the physical component of the intellectual
product but they retain the intellectual component in their head.
This consumer could have a photographic memory and so could, in
theory, retain a perfect copy in their head.
The first point I make here is that this copy
in the consumer’s head is intangible, just as the story
was initially intangible in the author’s head. This fact is
highlighted if you think of the author suddenly dying and at the
same instant all the copies of the manuscript and book were destroyed.
There would only be one copy left, in the head of this one consumer,
and it would be intangible. This forms my argument that an intellectual
product always consists of an intangible component, the intellectual
component, plus, usually but not necessarily, a tangible physical
component. The importance of maintaining this distinction will become
clear as my theory evolves.
The second issue is that the consumer possesses
this intangible copy but there is nothing to say that they bought
or own any right to this copy.
In theory consumers could keep buying, reading
and selling this book until everyone in the world has read it and
transferred the intellectual component to their heads. Everyone
would then have the ‘right’ to hold the intangible intellectual
component in their head although, of course, only one of them, plus
the author, would have access to the whole intellectual product
to refresh their head-held copy. In other circumstances consumers
could just keep lending this one-and-only book indefinitely with
the same result but with no money changing hands.
Therefore, in the current circumstances and
with the above definition of an intellectual product everyone has
the ‘right’ to an intangible copy of the intellectual
component. I call this ‘right’ the ‘common
right’ to the intellectual product and it is available
to all. Copyright already recognises that the idea is unprotected
but I would say that the 'expression' of that idea in intangible
form is also unprotected.
In practice, because of wear and tear, time scales
and other conditions, one printed book does not travel around the
world as described above and a good story will sell many copies
but I suspect there is still plenty of lending and reselling going
on.
In this section I have identified the two components
of an intellectual product, the intellectual and physical
components, and I have demonstrated how the intellectual component
remains a separate entity even when it is reproduced in a physical
manifestation and how, in practice, everyone is given a common
right to the intangible intellectual component providing they
can obtain a legal physical copy at some stage.
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