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Now I examine how current copyright law regulates
the intellectual product
and its components.
Copyright regulates the copying of the physical
component of the intellectual product by granting the copyright
holder exclusive right to copy for the term of the copyright period.
Assuming this regulation is enforced and enforceable, all trading
of the intellectual product involves trading of physical objects
that are produced by the rights holder or their agent. These physical
objects are the physical manifestation of the intellectual product.
The principles of trading physical objects, such as a teapot, are
well recognised and these principles work in just the same manner
for the physical manifestation of an intellectual product such as
a printed book.
In the case of printed books these physical trading
conditions work quite well in the cause of copyright because society
is relatively successful at applying the copying regulations to
books. Books are expensive and difficult to produce, needing special
equipment and materials, and few people will be able to undertake
illegal reproduction. Enforcing the regulations with only a small
number of offenders is therefore relatively easy. Others have identified
these self-regulating effects:
“In the past, the very nature of the distribution media
limited fraudulent dissemination (i.e. copy degradation, reproduction
costs, trace ability, etc).” [8]
“Digital copies are also perfect replicas, each a seed for
further perfect copies. One consequence is an erosion of what
were once the natural barriers to infringement, such as the expense
of reproduction and the decreasing quality of successive generations
of copies in analogue media. The average computer owner today
can easily do the kind and the extent of copying that would have
required a significant investment and perhaps criminal intent
only a few years ago.” [9]
Consider now that this ‘book’ is published in digital
form on a compact disk (CD). In this case it is a very special CD
that protects its content in such a way that it can never be copied
and only ever viewed by one consumer at a time. The physical trading
conditions described above for the printed book would also apply
to this CD. In fact, regulating this special, copy protected, CD
should be more successful than the printed book that could have
been illegally copied from time to time. Is it possible to create
a special CD such as this? I think not.
Now consider this same ‘book’ published in digital form
on the Internet. There are now no physical characteristics that
inhibit copying of the digital manifestation of the intellectual
product. I argue that the same conditions exist for this product
as in the two cases above except for the fact that regulating the
copying of the product becomes very difficult. The fact that multiple
copies have to be allowed for the system to operate further
complicates the regulatory process. Many consumers will be tempted
to hang-on to a digital copy, after they have traded it on, so that
they won’t have to go to the bother of borrowing the product
back when they want to refresh their memories. Further copies will
tend to rest in computer memory or backup systems if not specifically
deleted.
It seems to me that
these digital copies, the physical manifestation of the intellectual
product, have suddenly taken on some of the characteristics
of the intangible intellectual
component - they rest with each consumer as the intellectual
product as a whole is traded, lent, or otherwise distributed through
society.
This is to say that, today it is so easy to make
a digital copy and sometimes difficult to delete all temporary and
backup copies that the consumer can be forgiven for thinking that
the digital copy equates to the intangible copy in their head. The
digital copy equates to the intangible copy that they appear to
be allowed to keep. The fact that most individuals also find it
difficult to completely remove an idea from their mind, once they
have heard of it, only reinforces the parallel.
My definition, in the section above, of the intellectual
product is:
Intellectual product = intellectual component + physical
component
Now the digital manifestation of the intellectual
product tends to equate solely to the intellectual component
and only appears to have the traditional physical characteristics
at some point during a transfer from one individual to another:
Digital
product = intellectual component + (ephemeral physical component)
The Digital Object Identifier
Handbook alludes to these less tangible manifestations - “A
DOI can also be used to identify less tangible manifestations,
the digital files that are the common form of all intellectual
property in the network environment.”
No wonder that the copyright system is under pressure in these
digital times when the physical component it attempts to regulate
all but disappears – it tends to become intangible. Current
efforts to improve the digital copyright situation, from the producer’s
point of view, are aimed at increasing the ‘inefficiencies’
or barriers in the digital distribution system to try to make copying
of the digital product more difficult, make the product more tangible,
and therefore make regulation easier. These inefficiencies take
the form of encrypting files, adding watermarks, and centralised
hardware and software control systems. In many economic models reducing
the efficiency of information distribution adds a social-welfare
cost and this on the whole, I believe, is not a good result. In
addition these artificial barriers to copying will probably only
have a short term impact because there will always be someone who
will devise a method of bypassing the restrictions. [14]
Inefficiencies in the distribution system cost
time and money and surely no one wants this. If the digital system
involves equivalent costs, delays and inconvenience as obtaining
a physical book what is the advantage of going to the digital system?
I have previously shown that it is accepted by society that the
intellectual component is available to all as a common
right therefore it seems very difficult to understand why
the digital manifestation, which has more and more of the same characteristics
as the intellectual component, should not also be available to all. [15] This position, which has
evolved with the emergence of the digital age, is the crux of the
current copyright problem; as the physical component becomes
pervasive it becomes less important and copyright control less effective.
In the next section I propose a new ‘copyright’ philosophy
based the intellectual component of the intellectual property.
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