Whose IP is it anyway?

Why should we claim ownership of our IP? This was the topic up for discussion at the recent Slow School dinner on Collaborative Debating presented by Margaret Hepworth. I won’t reveal how a collaborative debate works (I recommend you sign up the next time Slow School runs this class…), but I do want to share some of the issues and insights that were aired. In particular, the notion that shared knowledge is the basis for greater prosperity.

The use of Creative Commons means knowledge becomes easier to share (Photo by Kristina Alexanderson, image sourced from flickr(

The use of Creative Commons means knowledge becomes easier to share (Photo by
Kristina Alexanderson, image sourced from flickr)

First, the discussion centred on IP issues relating to ideas, content, knowledge, creative concepts and theoretical models. Not surprising, as the participants were all independent professionals, consultants, bloggers, creatives, facilitators, teachers and instructors. So we didn’t address the areas of patents, registered designs or trade marks.

Second, as someone who has worked in the publishing, data and information industries for nearly 30 years, I believe it is essential that authors, artists, academics, musicians, designers, architects, photographers, programmers, etc. should be allowed both to claim copyright in their work, and to derive economic benefit from these assets. However, I also recognize that copyright material may often be created in the course of employment, or under a commercial commission or as part of a collaborative project. In which case, there will be limitations on individual copyright claims.

Third, the increasing use of Open Source and Creative Commons means that developers, authors and end users have more options for how they can share knowledge, access resources and foster collaboration through additive processes and “common good” outcomes. A vital component of these schemes is mutual respect for IP, primarily through acknowledgment and attribution. Equally, an online reputation can be established (or destroyed) according to our own use of others’ material, especially if we are found to be inauthentic.

Leaving aside the legal definitions of IP and how copyright laws work in practice, the discussion explored the purpose and intention of both authors (as “copyright creators”, narrowly defined) and end users (as “licensees”, broadly defined). There was general agreement that sharing our content is a good thing, because we recognise the wider benefits that this is likely to generate.

But there is a risk: merely acknowledging someone else’s authorship or copyright is not the same as accurately representing it. Obviously, plagiarism and passing off someone else’s ideas as your own are both copyright infringements that can give rise to legal action. Even with the “fair use” provisions of copyright law, a critic or even an acolyte can mis-interpret the content or attribute a meaning that the author did not intend or even anticipate. As one participant noted, “Copyright is not just concerned with what we claim ownership over, but what others may claim as their own.” Not for nothing have we developed “moral rights” in respect to authorship of copyright material.

Although we did not discuss specific issues of copyright remuneration (e.g., through royalties, licensing fees or financial consideration for copyright assignment), there was a proposition that establishing copyright protection can lead to social, intellectual and even economic limitations. The understandable, but often misguided need to protect our copyright (as a form of security) is driven by fear, underpinned by scarcity models. Whereas, a more generous approach to copyright can actually lead to greater shared prosperity, based on the notion of the abundance of ideas and knowledge. And since, as one speaker put it, “there is no such thing as an original concept because all ideas build on previous knowledge”, the inherent value in IP is in how we contribute to its nurturing and propagation.

At the end of the discussion, and reflecting on my own recent experiences with copyright infringement and geo-blocking, I found I had shifted my position – from one that tends to take a more absolute view on copyright ownership, to one that identifies the need for some further modification to the current copyright regime, along the lines of the following:

  • Copyright ownership should not entitle the owner to abuse those rights – if anything, the copyright holder ought to be placed in a position equivalent to a trustee or custodian, to ensure that they act in the best interests of the IP asset itself, not merely their own interests. That should not preclude the owner from being compensated for their work or being allowed to commercialize it, otherwise, why would anyone bother trying to create new ideas or content?
  • Establishing copyright in ideas and creative concepts needs to be supported by a notion of “intent” or “purpose” (a bit like mens rea in criminal law). For example, if the intent is to merely prevent anyone else using or sharing the idea, then any copyright protection might be limited to a much shorter duration than the usual “life of author plus XX years” model.
  • Equally, under a “use it or lose it” provision, if copyright owners (and/or their publishers, distributors and license holders) elect to take their content out of circulation from a market where it had been widely available, then they would need to establish good cause as to why the copyright should not be open to anyone else to use and even commercialize (subject to reasonable royalty arrangements).
  • If we accept that all knowledge is additive, and that the proliferation of collaboration and co-creation is because of the need to share and build on what we and others have already created, how can we ensure the integrity and mutual benefits of open source and creative commons initiatives? One analogy might be found in the use of blockchain technology to foster contribution (adding to and developing an existing idea, concept, model or platform) and to support authentication (to validate each idea extension).

Perhaps what we need is a better IP model that both incentivizes us to share our ideas (rather than rewards us for restricting access to our content), and encourages us to keep contributing to the furtherance of those ideas (because we generate mutual and ongoing benefits from being part of the collective knowledge). I’ve no idea what that model should look like, but surely we can agree on its desirability?

Next week: Finding purpose through self-reflection

“Everything on the Internet should be free…”

Last week I got into a very heated dinner-party debate with an artist, an academic and a publisher about the economic value of copyright protection in particular, and intellectual property rights in general.

It started with a discussion about file-sharing and illegal downloads, and led to an argument about patenting genomes. I can’t attribute directly, but the gist of the argument was as follows:

1 Copyright and patents do not encourage innovation – they stifle it

2 Intellectual property rights represent a modern phenomenon – ancient societies managed to exist without them

3 Everything on the Internet should be free – and not subject to copyright protection

Let’s agree that formal intellectual property laws are a relatively recent invention – the modern concept of patents emerged in 15th century Europe, and the first British copyright law was passed in 1710. These laws then grew in importance as technology introduced the printing press and the industrial revolution.

I would argue, however that all civilisations have placed a premium on knowledge, creativity and invention. Regardless of whether this knowledge is based on folklore, scientific experiment, geographical discovery or geological exploration – specific rights, actual economic benefits and certain legal protections have been afforded to those who establish ownership or control of these assets. Examples would include the right to copy ancient manuscripts held in monastic libraries; the monopolies and protection granted to members of craft guilds in plying their skills; the trading rights granted to merchants; and restricting the practice of certain tribal traditions to selected community elders.

Most of these knowledge-based activities involve a high degree of effort, ingenuity and risk-taking – so in return, it was acknowledged there needed to be financial and other rewards to act as incentives. In the case of science and technology, these incentives are often deemed essential to offset the huge capital costs of developing new products and processes. In the case of copyright, the rewards of author royalties and content licensing fees are desirable to encourage people to come up with new ideas and new concepts – even if the purpose is simply to amuse and entertain us.

Of course, the economic rewards need not simply be derived from patents or copyright – tax-breaks for R&D or public grants to fund academic research are some examples of alternative financial incentives for both inventors and people of ideas.

As for the concept that “everything on the Internet should be free”, I am reminded of what I once told a client, who could not understand why access to the on-line version of a printed reference work was costing him more than the “physical” cost of adding a new user log-in and password to our content publishing platform: “OK”, I replied, “you can have all the content for free, but we’re not going to index it, or structure it with headings and sub-headings; we won’t tag it, insert cross–references, or add hypertext links; we won’t even edit it; and finally, we won’t update it every time there is new material.” He soon got the point.