[A2k] Cory Doctorow: "Intellectual property" is a silly euphemism

[Manon Ress]

"Intellectual property" is a silly euphemism

http://www.guardian.co.uk/technology/2008/feb/21/intellectual.property?gusrc=rss&feed=technology
     * Cory Doctorow
     * guardian.co.uk,
     * Thursday February 21 2008

"Intellectual property" is one of those ideologically loaded terms
that can cause an argument just by being uttered. The term wasn't in
widespread use until the 1960s, when it was adopted by the World
Intellectual Property Organization, a trade body that later attained
exalted status as a UN agency.

WIPO's case for using the term is easy to understand: people who've
"had their property stolen" are a lot more sympathetic in the public
imagination than "industrial entities who've had the contours of their
regulatory monopolies violated", the latter being the more common way
of talking about infringement until the ascendancy of "intellectual
property" as a term of art.

Does it matter what we call it? Property, after all, is a useful, well-
understood concept in law and custom, the kind of thing that a punter
can get his head around without too much thinking.

That's entirely true - and it's exactly why the phrase "intellectual
property" is, at root, a dangerous euphemism that leads us to all
sorts of faulty reasoning about knowledge. Faulty ideas about
knowledge are troublesome at the best of times, but they're deadly to
any country trying to make a transition to a "knowledge economy".

Fundamentally, the stuff we call "intellectual property" is just
knowledge - ideas, words, tunes, blueprints, identifiers, secrets,
databases. This stuff is similar to property in some ways: it can be
valuable, and sometimes you need to invest a lot of money and labour
into its development to realise that value.

Out of control

But it is also dissimilar from property in equally important ways.
Most of all, it is not inherently "exclusive". If you trespass on my
flat, I can throw you out (exclude you from my home). If you steal my
car, I can take it back (exclude you from my car). But once you know
my song, once you read my book, once you see my movie, it leaves my
control. Short of a round of electroconvulsive therapy, I can't get
you to un-know the sentences you've just read here.

It's this disconnect that makes the "property" in intellectual
property so troublesome. If everyone who came over to my flat
physically took a piece of it away with them, it'd drive me bonkers.
I'd spend all my time worrying about who crossed the threshold, I'd
make them sign all kinds of invasive agreements before they got to use
the loo, and so on. And as anyone who has bought a DVD and been forced
to sit through an insulting, cack-handed "You wouldn't steal a car"
short film knows, this is exactly the kind of behaviour that property
talk inspires when it comes to knowledge.

But there's plenty of stuff out there that's valuable even though it's
not property. For example, my daughter was born on February 3, 2008.
She's not my property. But she's worth quite a lot to me. If you took
her from me, the crime wouldn't be "theft". If you injured her, it
wouldn't be "trespass to chattels". We have an entire vocabulary and
set of legal concepts to deal with the value that a human life embodies.

What's more, even though she's not my property, I still have a legally
recognised interest in my daughter. She's "mine" in some meaningful
sense, but she also falls under the purview of many other entities -
the governments of the UK and Canada, the NHS, child protection
services, even her extended family - they can all lay a claim to some
interest in the disposition, treatment and future of my daughter.

Flexibility and nuance

Trying to shoehorn knowledge into the "property" metaphor leaves us
without the flexibility and nuance that a true knowledge rights regime
would have. For example, facts are not copyrightable, so no one can be
said to "own" your address, National Insurance Number or the PIN for
your ATM card. Nevertheless, these are all things that you have a
strong interest in, and that interest can and should be protected by
law.

There are plenty of creations and facts that fall outside the scope of
copyright, trademark, patent and the other rights that make up the
hydra of Intellectual Property, from recipes to phone books to
"illegal art" like musical mashups. These works are not property - and
shouldn't be treated as such - but for every one of them, there's an
entire ecosystem of people with a legitimate interest in them.

I once heard the WIPO representative for the European association of
commercial broadcasters explain that, given all the investment his
members had put into recording the ceremony on the 60th anniversary of
the Dieppe Raid in the second world war, they should be given the
right to own the ceremony, just as they would own a teleplay or any
other "creative work". I immediately asked why the "owners" should be
some rich guys with cameras - why not the families of the people who
died on the beach? Why not the people who own the beach? Why not the
generals who ordered the raid? When it comes to knowledge, "ownership"
just doesn't make sense - lots of people have an interest in the
footage of the Dieppe commemoration, but to argue that anyone "owns"
it is just nonsensical.

Copyright - with all its quirks, exceptions and carve outs - was, for
centuries, a legal regime that attempted to address the unique
characteristics of knowledge, rather than pretending to be just
another set of rules for the governance of property. The legacy of 40
years of "property talk" is an endless war between intractable
positions of ownership, theft and fair dealing.

If we're going to achieve a lasting peace in the knowledge wars, it's
time to set property aside, time to start recognising that knowledge -
valuable, precious, expensive knowledge - isn't owned. Can't be owned.
The state should regulate our relative interests in the ephemeral
realm of thought, but that regulation must be about knowledge, not a
clumsy remake of the property system.