Intellectual Property and the Information Age

Steve Garcia

Intellectual property laws are out of control, and getting worse. And this could conceivably bring the benefits of the information age to a screeching halt.

Well, that's a bit of an exaggeration. Those benefits won't be halted, because at some point we'll figure out how much harm the current intellectual property climate is and fix it. But progress will suffer in the mean time.

The Constitution of the United States says in 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 Right to their respective Writings and Discoveries;”

This is the basis of American intellectual property law. Behind it is the following principal: Ideas belong to the public domain. In order to obtain invention and ideas for the public domain, it is to society's benefit to give creators an incentive to create. This incentive is a limited monopoly on the fruits of their creation, that they may profit by them before these revert to the public domain. But the whole point of the exercise is to obtain these creations for the public domain — “the Progress of Science and useful Arts.” Intellectual property is not the same as physical property. Society grants the author or inventor monopoly rights, they are not inherent, nor are they for unlimited time. Unless your name is 'The Walt Disney Company', of course.

There are four types of intellectual property laws, in order of duration:

  1. Patents — Protects new and 'non-obvious' ideas and inventions. Expiration: 17 years.

  2. Copyrights — protects original works of authorship. Expiration: age of Steamboat Willie plus 10 years.

  3. Trade Secrets — protects trade secrets as long as you can keep them secret. Expiration: unlimited as long as you can keep the secret.

  4. Trademarks — Protects words and symbols that identify a company or product. Expiration: essentially unlimited as long as it continues to be used and to be defended.

Trademarks deal with symbols rather than ideas, and are thus outside the scope of our discussion.

Trade secrets are a way to avoid the “public domain” ownership of ideas or inventions. It also allows you to protect the sorts of information that wouldn't be patentable (recipes for soft drink mixes, customer lists, etc.) In order to patent an invention you must disclose its details, which allows anyone to reproduce it after the patent expires. If you choose to keep your idea as a secret, you don't have to tell anybody its details and you can keep that secret as long as you can keep it. You are protected against misappropriation — no one is allowed to steal your ideas or invention. On the other hand, if someone else figures out your idea on their own or by reverse engineering your product, you have no protection at all. Once the secret's out, it's out.

If you look close, you'll see that the design of trade secret law emphasizes the primacy of the public domain. Until very recently, trade secrets were the only type of intellectual property that did not require you to publicly publish the details of your intellectual work. The price for withholding your work from the public domain is a reduced protection of that work. Unfortunately, recent changes in copyright law have allowed companies to obtain copyright protection for unpublished work, which undermines the whole purpose of intellectual property law.

Copyright is the first of the intellectual property laws we shall consider that has immediate relevence in the Digital Age. Currently one of the most topical copyright issues is that of music sharing on P2P (peer to peer) networks, but the issue of copyright in the digital age is far more extensive than that.

We've been able to copy music for years — I was recording music off the radio in the late 1960s. Why have computers made such a big difference?

If you had listened to the music I recorded back then you'd understand. The quality was awful! It was barely listenable then, even to my unsophisticated ears. What scares the music industry more than anything else is the fact that a digital copy is an identical copy. Although even the best MP3 is noticably degraded compared to the original CD, I can make a copy of a CD that is indistinguishable from the original. And even though those MP3s are poorer quality than CDs, the best MP3s (or even better, Ogg Vorbis) are of as good a quality as the top quality analog cassettes of just a few years ago, and orders of magnitude better than my experiments off the radio when I was a kid. And once I've taken the original quality loss to get my MP3 or Ogg files, I can make copy after copy with no additional loss of quality. And I can share them with as many people as I like.

Let's talk about music sharing. Is sharing your music collection with 10,000 of your closest friends a violation of copyright? Is it theft? Is it piracy? Is it destroying the music industry?

First of all, copyright says that the copyright holder of the song (or other work) has the right to tell you whether you can make a copy of that song (subject, to some degree, to the principal of “fair use”.) Passing that song along to 10,000 strangers is far outside the bounds of the dispensation given you by “fair use”. Doing so is definitely an infringement of copyright, and it is illegal. Does that make it theft? No, it is infringement, but it's not theft. Intellectual property is not property, it is a (temporary) grant of rights from the owners of the property (the public) to the creators of it (the artists.) The public has granted the artist certain rights in return for the act of creation, and by sharing the music you have violated those rights — and that's wrong. But unless the violation is wilfull and for commercial advantage or private financial gain, it's not theft, much less piracy.

Is it destroying the music industry? Janis Ian, a singer/songriter who has been active in the music business for 39 years doesn't think so.

She goes on to quote:

Make no mistake about it. Some artists are opposed to music copying,others are in favor of it. But it is the record labels who are frightened, and with reason. They are not protecting the artists no matter what they claim. They are protecting themselves.

All the hullabaloo over copying will blow over. Either the record companies will get a clue or the writers and artists will bypass the record industry and communicate directly with their public. Artists and writers will never go away — the public is hungry for content, and will ultimately pay to ensure that it keeps coming. The technology that comes with the internet and computers does, however, change the requirements of publishing and make record companies and publishers less necessary. Do I mean they are unnecessary? No, not really. Read Eric Flint's discussion on “slush piles” at the Baen Free Library site for why.

But the rules have changed, and it may be only new record companies and new publishers that understand the new reality that will survive.

Author Eric Flint at Baen Books has put together a website known as the Baen Free Library where a number of Baen's authors make free downloads of their books available. Not a chapter or two, but the entire book. In addition, Eric describes why he (and publisher Jim Baen) have done this. A hint: It's not altruism.

Because publishers (here I refer to record companies, book companies, movie studios and so on) are so afraid of the ability of digital media to be exactly copied, they pushed Congress into passing one of the biggest disasters in the history of intellectual property legislation: The Digital Millenium Copyright Act. The DMCA essentially changes the rules for digital media of all sorts. At its core the DMCA asserts that you can't look at digital media crosswise without being in violation. This is a whole topic on its own, and one that I plan to take up in a future article.

But one of the ramifications of this is that publishers can limit where and how you can access their publications (you can only read this ebook, listen to this song, watch this movie on this computer or that PDA) and if you try to get around that (I want to listen to the song in the car) it involves breaking their encryption and that is illegal. Aside from new limitations on your rights as a consumer (what do you mean I can't legally read my book in the shower? I can ruin it if I want to, it's my book!) it also means that effectively this work will never be in the public domain, because by the time copyright runs out nobody will be able to read it. The encryption methods are likely to have been lost. And this is wrong. The social compact grants rights to the authors in order to obtain to work for the public domain. That's the deal, it works both ways, and the DMCA breaks it.

And how long will it be until the copyright does expire and the work return to the public domain?

Unlike the other elements of intellectual property law, copyright term has been a moving target. The first copyright act, enacted in 1790 (shortly after the Constitution itself) set the term of copyright to 14 years, renewable once for another 14 years if the author was still alive. Over time, this term has gradually increased to its current term of the author's lifetime plus an additional 70 years. Corporate copyrights extend for 95 years after first publication. The 1976 Copyright Act extended copyright enormously, but even so, in 1998 Disney noticed that Mickey Mouse would soon move into the public domain, so they instructed Congress to extend all copyrights by an additional 20 years. We can expect another extension in about 15 years.

It can be argued that a strong and vital public domain is a strong driver for artistic creativity. At least one major entertainment corporation has made the majority of its money mining the vast store of intellectual property that was once copyrighted but is now public domain. Works like Kipling's Jungle Book, Grimm's Little Snow White, Andersen's Little Mermaid, and Carroll's Alice in Wonderland were all, at one time, under copyright, yet once in the public domain provided a basis for new and original work by Disney. It is for exactly this reason that the public domain is important. Had copyright been perpetual as Disney Corp seems to favor now, none of those would have been available to Walt or his successors and the public would never have had the opportunity to see some of the resulting masterpieces.

Useful websites:

Speech before British House of Commons by Thomas Macaulay on copyright in 1841.

Project Gutenberg — Free books online.