Cory Doctorow is a Canadian blogger, journalist and science fiction author who serves as co-editor of the blog Boing Boing. He is an activist in favor of liberalizing copyright laws and a proponent of the Creative Commons organization, using some of their licenses for his books. He is the author of Down and Out in the Magic Kingdom and Little Brother.
blog: craphound.com group blog: boingboing.net
“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 sixties, when it was adopted by the World Intellectual Property Organization (WIPO), a trade body that later attained exalted status as a UN specialized 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 before 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.”
READ IT, OWN IT
Fundamentally, the stuff we call “intellectual property” is just knowledge and information−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 labor into its cultivation and development in order to realize that value.
But it’s also dissimilar from property in equally important ways: most of all, it is not inherently “exclusive.” If you trespass on my land, 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 make me bonkers. I’d spend all my time worrying about who got to cross 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’s bought a DVD and been forced to sit through an insulting cack- handed “You wouldn’t steal a car” anti-piracy short film knows, this is exactly the kind of behavior that property-talk inspires when it comes to knowledge.
But there’s plenty of stuff out there that’s valuable even if it’s not property. For example, my daughter was born in February, 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 recognized interest in my daughter. She’s “mine” in some meaningful sense, but she also falls in the scope of many other entities−the governments of the UK and Canada, the NHS, Child Protective Services, even her extended family−they can all lay a claim to some interest in the disposition, treatment and future of my daughter.
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 copyright-able, so no one can be said to “own” your address, the number on your license plate 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.
OWNING (UP TO) HISTORY
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 sixtieth anniversary of the Dieppe Raid, that 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 forty years of “property talk” is a endless war between intractable positions of ownership, theft and fair dealing.
If we’re going to find a lasting peace in the knowledge wars, it’s time to set property aside, time to start recognizing 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.
The point is that if you try to own your knowledge, it might end up owning you.
STEAL THIS STORY, SELL SOME BOOKS
So let me see if I can make this point clear, even to you punters out there. Joi Ito’s book is an existence proof–since everyone is all over this term of art–that knowledge can’t be owned. And maybe your image shouldn’t be, either. So I gave Joi my image. Joi gave me this book. So I guess I’ll have to up the ante.
Maybe this book has a statement to make about the future of publishing. Maybe. I was once asked to write about what bookselling might be like in the future. So I’ll give you one piece about how I imagined life in a bookstore from now(ish) to 150 years from now(ish). My story used to be my property–until I went and had it published–and it will always be part of my knowledge. Now it’s part of yours. Now you own it, just as much as I do.
And don’t worry. You aren’t scheduled for an electroconvulsive therapy session any time soon.
The thing that Arthur liked best about owning his own shop was that he could stock whatever he pleased, and if you didn’t like it, you could just shop somewhere else…
75 YEARS FROM NOW (OR SO)
The kids in the shop were like kids everywhere. That weird, hyperaware thing that came from the games they played all the time, even in their sleep; the flawless skin and teeth (because no parent would dare choose otherwise at conception), the loud, hooting calls that rippled through the little social groups whenever a particular bon mot vibrated its way through their tight little networks, radiating at the speed of light…
150 YEARS FROM NOW (ISH)
The young man blinked at the coruscating lights and struggled into a seated position, brushing off the powdery residue of his creation.
“The Story So Far?” he said. “The Story So Far,” a voice agreed with him from a very long way off and so close in, it was practically up his nose.
“Better than Great Expectations again,” he said, getting to his feet, digging through the costumes on the racks around him. Knowledge slotted itself in his head, asserting itself. Plots, other characters, what had come before, the consensus about where things might go next. He didn’t like the consensus. He began to dress himself.
“Tell me about the reader,” he said. The voice was back in an instant, describing the child (four), the circumstances of his birth and life, his interests. “So I’m a picture book?”
“No,” the voice said. “He’s reading in chapters now. It’s the cognitive fashion, here.” At here, more knowledge asserted itself, the shape of the comet on which they all resided, their hurtling trajectory, a seed-pod of humanity on its way elsewhere.
“Right,” he said, putting on gloves, picking out a moustache and a sword and a laser-blaster. “Let’s go sell some books.”