Owning My Bias

As I mentioned in my collection activity, Discourse Together, I believe in open. (And, in the spirit of “owning” my work, I’m not going to try to remix it in a new, different, or cleverer way, I’m going to paste it below…). Rather than trying to deny that fact, I figure it’s best to reveal my personal bias from the get-go. Although my work with Open Education Resources is recent, I’ve embraced the spirit of open throughout my professional career. As an educator, the materials I created were freely shared with my peers, no credit required. In contract work, I’ve requested that our collaborative works be licensed via Creative Commons, preferably with the least restrictive license possible. Further, as a trained archivist, I understand that present U.S. copyright law is convoluted, with records of cultural heritage sometimes being subject to antiquated state and federal laws. Finally, politically (and relevant to my argument), I tend to be a constitutionalist.

So there you have it, me (or at least the pertinent things you need to know for the development of my perspectives on intellectual property), in a nutshell.

Dealing with Definitions

Much like defining the term “digital citizen” required an examination of the individual terms which make up the composite, so too, does the term “intellectual property.” While Dicitonary.com first and foremost defines property as “that which a person owns; the possession or possessions [goods, land, etc.] of a particular owner,” follow the iterations and you will see “ownership; right of possession, enjoyment, or disposal of anything, especially something tangible.” Look down a few more and you will see “a written work, play, movie, etc., bought or optioned for commercial production or distribution” and “a person, especially one under contract in entertainment or sports” rounding out the list.

Merriam-Webster defines “property” as “something owned or possessed; specifically, a piece of real estate,” or “something to which a person or business has a legal title” and declares it “the exclusive right to possess, enjoy, and dispose of a thing.” They, too, include the idea of “one who is under contract and whose work is especially valuable.” In a similar vein the Oxford Living Dictionary defines property as “a thing or things belonging to someone; possessions collectively” specifically noting “buildings and the land belonging to them,” “shares or investments in property,” and “the right to the possession, use, or disposal of something; ownership.” Finally, the Free Dictionary, in a similar vein declares it to be “something owned; a possession” but adds to this “something tangible or intangible to which its owner has a legal title [or to] which a person has a legally cognizable, compensable interest.”

Although four definitions certainly are not a preponderance of evidence, within each it becomes clear that more traditional definitions of the term “property” carry a connotation of tangibility. Whether speaking of goods, land, people (really?!?), or deeds, the term hinges on the ability to tangibly demonstrate ownership. Consider the following sentences: “I want you to take your property and go;” “I want to expand my portfolio so I’m going to buy a new property;” and “I own this property and I’m asking you to leave.” In each of these sentences “property” refers to tangible items (an individual’s belongings, a piece of land, (likely) a home) an individual clearly owns.

So when did “intangible,” as quoted by the Free Dictionary, begin to appear in definitions of property? I would posit that the intangible aspect of property began with the introduction of “intellectual property.” Standing on its own, “intellectual” refers to those things which “require use of the intellect” or “relate to the intellect or its use” (Merriam Webster). When applied as a qualifier to property, however, the term grows to include “creations of the mind, such as inventions; literary and artistic works; designs; and symbols, names and images used in commerce” (WIPO). So, while property was initially conceived to be something I could directly own and hand to someone (should I so choose), in the modern era the definition has grown to include protection of those things produced by my intellect (an idea likely furthered by both the digital world we live in and pushes for the expansion of intellectual property rights).

The idea that intangible works are property is problematic, however. Consider the idea of transfer. When I own a piece of land and decide to give it to another individual (whether by sale or gift), I no longer benefit from ownership of that property. The same cannot be said of an idea or creative work (idea from here on). When I come up with an idea and share it with or sell it to someone else, I do not lose the idea (Boldrin & Levine). I am still able to reap the benefits of my idea and build on it to create new ideas. Further, while tangible property is individual and unique (no one can own the exact same piece of land or the exact same house that I do), ideas are not. We do not live in a vacuum and our ideas are born as improvements on the ideas of others. Finally, and perhaps in line with the concept of individual and unique, traditionally the term “property” implies scarcity in that if I own something, no one else can (Kinsella). Ideas do not follow the same logic; consider the Mesoamericans who independently developed a wheel and advanced technology with no interaction with their Eastern contemporaries (who were creating the same inventions). We do not, and hopefully never will, live in a time of scarcity of ideas…in fact, I would argue the opposite. Given the nature of connectivity in a digital world, ideas are flourishing at (seemingly) unprecedented rates.

So, taking all of this into consideration, what do we do with the concept of intellectual property? Is it friend? Foe? Simply misunderstood?

Neither Friend nor Foe…but, in Need of Reform

I realize at this point, given my problematic interpretation of the term and my admitted bias toward open, it likely appears I’m not a fan of the concept of intellectual property or its protections. This is, perhaps surprisingly, not at all the case. I believe when someone puts forth the time and effort to create something new (whether through research, invention, or creativity), they deserve to be rewarded for that work and protected. Where I differ from current intellectual property laws is in my belief that these protections should be granted only for a limited time (7 years, give or take) and only if the creator so chooses to seek them.

When intellectual property laws were conceived, lawmakers drafted them to both protect the private interests of the creator and ensure the highest, long-term benefit to the public, creating a social contract of intellectual exchange (Wikipedia). This social contract initially protected the creation for a time so the creator could reap the rewards of their labor; while, at the end of that limited time, the creation was then opened to the public so the largest number of individuals could benefit from (and, ideally, build upon) the same discovery. The intent in this contract was clear – protect the economic interests of the creator for a time to ensure continued discovery and promote progress while ensuring the public would then be able to build upon these works, thus furthering progress and discovery. As stated in the United States Constitution, Article I, Section 8, Clause 8 “[The Congress shall have power] to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.” Even the World Intellectual Property Organization maintains that intellectual property rights should “strike the right balance between the interests of innovators and the wider public interest;” therefore, the “IP system aims to foster an environment in which creativity and innovation can flourish.”

While it is clear that “the free flow of information and ideas is necessary for a robust free society to flourish” and the goal of intellectual property laws was “to provide enough legal protection to maximize incentives” to the creator while “minimizing interference with the free flow of ideas,” modern intellectual property laws are far more extensive than initially intended, enforce lengthy time requirements, overlap at the state and federal levels, and have attempted to crack down on the free flow of ideas (particularly those taking advantage of modern technologies) (Beckerman-Rodau). Modern copyright law, such as the Digital Millennium Copyright Act, is perceived by many as creating a dichotomy of devaluing individual creativity or devaluing the exchange of information across technology networks. This is, however, as Stan Muller points out in the video below, a “wrong-headed assumption.” The better question is how to strike a balance between protecting the creator and taking advantage of the exchange and flow of ideas across technological networks.

Intellectual property, as mentioned before, becomes more problematic when one considers that knowledge and creativity do not occur in a vacuum. As noted by Roman Romulanec in Everything is Remix, we learn by copying the works of others. Artists learn by copying the Masters until they develop their own style, musicians cover great songs, and inventors build on the ideas of others. As noted by Adam vs. The Man, “every new idea is the product of all the innovators who have come before us” (in other words, “we stand on the shoulders of giants”). While I may not go so far as to say intellectual property is immoral nor do I think it is “morally wrong to use the force of the government” to protect the rights of a creator [for a time], I agree with Adam that preventing people from copying ideas prevents them from being improved upon.

So how do we fix intellectual property laws?

To say an individual owns an idea in perpetuity is to espouse a belief that they came up with the idea wholly on their own with no influence from those who came before. This goes against the spirit of intellectual property protection; specifically, the idea that when protections are removed society benefits from access to the knowledge so new knowledge can be created. Beyond this, to provide rights to intellectual property for the lifetime of the creator + 70 years (some are longer) further breaks the social contract in that the creator has no incentive to continue innovating.

While I know it is a simplistic response to a very complicated question, I think there is a three-fold answer. The first is to limit protections to a reasonable period of time (as I said before, my preference would be 7 years, plus or minus a few). Second, we need to educate creators about the variety of licenses (Creative Commons, I’m looking at you!) available for their works. Finally, to borrow from Austin Kleon, we need to learn, in the digital environment in which we live, to steal like artists.

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