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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Structure of Intellectual Products

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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© 1999-2007 Nicholas Bentley Updated: May 2007