Distributed Intellectual Product Rights Common Rights, Collective Rights and Intellectual Property
Distributed Intellectual Product Rights
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Nicholas Bentley

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How is the intellectual product traded?

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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© 1999-2007 Nicholas Bentley Updated: May 2007