Monday, March 31, 2008

"Silly Euphemism" or Stubborn Fact

An article by noted author/blogger Cory Doctorow appeared in The Guardian recently. It concerned the "silly euphemism" of the term "intellectual property".

"...the phrase "intellectual property" is, at root, a dangerous euphemism that leads us to all sorts of faulty reasoning about knowledge....Fundamentally, the stuff we call "intellectual property" is just
knowledge - ideas, words, tunes, blueprints, identifiers, secrets, databases. "

Speaking of faulty reasoning, this generalization is about as dangerous as it gets. There are actually at least two types of knowledge : factual knowledge (that which can be discerned by everyone using sensual observation or experimentation, such as the "knowledge" that the world is round), and creative knowledge ("knowing" works of art, literature, music, etc. that have been brought into the world through the creative work of one or more minds in collaboration). Words, identifiers, and databases are not the same thing as ideas, poems, tunes, novels, paintings. Factual knowledge can not and should not be owned. It would be ludicrous to say that one "owns" the fact that 2 +2 = 4. However, it's perfectly reasonable to say that one owns a song or a novel one has created, and calling this creation "intellectual property" is not only appropriate but accurate.

Mr. Doctorow goes on to say that intellectual property is not "inherently exclusive" whereas most "property", such as a house, can be made 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."

While this may be true, it isn't a sound argument against using the term "intellectual property" to categorize works of creativity. Just because a work of fiction or a song can't be "un-known" doesn't mean a transcription of it can't be made legally exclusive. Knowing my song in your head isn't the same thing as owning a file or recording of my song. The "knowledge"of my song isn't what is being protected, but rather the licensed transcription (a CD recording, an mp3 file, a piece of sheet music, etc.).

Similarly, The Louvre can ban photography of it's famous paintings such as the Mona Lisa, but they can't prohibit anyone from memorizing the image, or even copying an imitation of it it by hand. And no one would argue that the original painting isn't property just because it can be viewed, memorized, or copied (I don't mean forgery that you later try to pass off as the original, just a personal copy).

I agree with Mr. Doctorow that we haven't nuanced the intellectual property language enough. There certainly should be uses of creative knowledge that require no license or payment from the user. For example, anyone should be allowed to sing my song from memory before their own audience without paying for that right. This is a transient experience, not a permanent transcription. It's the same thing as looking at the Mona Lisa, then leaving the museum with only the memory of the image-- something that can't be "un-known".

However, when it comes to the exchange of media containing the original content (the file, the CD, the photograph, the DVD, etc.) we should continue to protect the rights of creators and we should continue to call the contents of the medium "intellectual property" rather than invent further confusion.

copyright 2008 craig bickhardt


Tim McMullen said...

The trouble with Doctorow's analysis is that he confuses factual knowledge with artistic creation. Put simply, "intellectual property" applies to both artistic and inventive creation. We have patents for ideas or objects or processes; we have copyrights for artistic creations; allowing someone to simply take that "property" for their own purposes without compensating the creator or the owner, is like stealing the car or the guitar or the food. Just because someone can convert it to their own use doesn't make it "not property." "Intellectual property" is actually an excellent name for the fruits of that creative process. Once created, it is the "property" of the creator to distribute as he or she sees fit. Ownership and the rights of ownership are rightly conveyed to the creator or to the agent to whom that property is sold.

Our poems, our songs, our greeting cards, our ad jingles, are as much a product as a car or a piece of fruit. The nice thing is that this type of property can be consumed, yet not be "consumed" in the process.

Sometime you may want to comment on the other end of this process, though; the distortion of the fundamental copyright laws, intended to give authors and artists reasonable recompense, to a multi-lifetime monopoly on creative objects that should flow sooner into the public domain.

Thanks for your continually stimulating exploration of the biz.

Tim McMullen

Anonymous said...

Thanks for tackling this article - Doctorow is a very vocal proponent for copyright "reform" and is tragically ill-informed on the subject. I read his article and got so hopping mad I couldn't elucidate where the wrongness began! Nice work!

Tim Wheeler said...

Thanks Craig.

Lyric, melody, and rhythm; A song and its performer... are probably the best example of synergy we can cite in real life. Brought together, they have the potential to dwarf the sum of their parts.

I'm amazed at the supernatural experience that can be brought on by the combining of 26 letters, 12 tones, and a heart.

An inspired composition or recording can never be collectively known. One who thinks so is probably not capable of knowing one individually, let-alone collectively.

In some ways, an mp3 file... the arrangement of bits held in place by magnetic charge, is closer to the nature of a composition than we think.

Compositions, for instance, are also hard to put in a box.

EdWilliams said...

Great topic Craig,

So what would Mr. Doctorow call what is known today as intellectual property? If an idea created by someone’s intellect is not “own able”, so to speak, then every novel, song, poem or scientific theory should be in the public domain. If I recite Emily Dickinson or quote Mark Twain, do I therefore own the words? Does it become mine simply because it can exist in a non-physical form?

A novel is just a bunch of words linked together to create a thought. A song is just the same use of words intertwined with a finite series of musical notes. Just because the medium is available to everyone, does that mean the use of words and music in specific combinations linked together in a unique fashion cannot be owned?

If I take steel and plastic and rubber and arrange them together in a unique way to make a car, it’s my property. I made the car from raw materials and therefore I own it. It’s my personal property - uniquely fabricated from my two hands (and my intellect too, by the way). If I take words and music and arrange them in a unique way to convey a concept with words and a melody, that’s my property too. I made up the story and melody from the raw materials (words and music) using my intellect and so I own it just like I would own the car I made.

I don’t see where Mr. Doctorow’s argument has merit.

Ed Williams