Doctorow's article is all well and good. He doesn't like the term. I get that; he's said it before.
But I never quite manage to understand exactly what he proposes to substantially replace the existing legal and semantic structure. If I make something that doesn't have a particular physical manifestation, what rights and obligations do I have to that creation?
I think that, when pressed, many people who sympathize with Doctorow in this debate would assert that a thing that has no physical manifestation conveys no rights to its creator. But I wish they would come out and say that directly, instead of dancing around the issue while making essentially content-free semantic arguments.
I definitely agree with Doctorow on the disingenuity of the phrase "Intellectual Property." And I agree with him that the creator of a particular piece of knowledge has a long-term interest in that knowledge. I don't think that the point of this article is to propose a new paradigm; rather, it introduces the idea to the general public that as a society we need to find new ways of interacting with the very idea of knowledge. The point of the article is to encourage collaborative discussion, and not yet to offer some new approach.
In the case of copyright I will note that under current laws things without physical manifestation already do not convey rights to their creator. Dances are not copyrightable. Facts are not copyrightable. Mathematics is not copyrightable. Music is not copyrightable until it is recorded. A work must have a creative element and be translated into a fixed medium to be copyrighted.
If something has no physical manifestation, can it be considered to be 'created' at all?
Doctorow is not implying that things which fall under the purview of copyright, trademark, and patenting should give no rights to their creator. In fact he argues the opposite, which is that the creator has a long-term interest in the creation which we as a society need to recognize. However, drawing analogies with exclusive physical property leads to harmful actions which become more and more abusive in this digital age.
I won't claim to have the final answer as to what the correct approach to the dissemination or control of knowledge is. But I do know that the current system of 'Intellectual Property" is broken. Our increasingly connected, digital society must reexamine its assumptions about power over and the creation of knowledge.
Part of the problem is that we don't yet have to words to frame this discussion. What should we call knowledge which required creativity to generate which recognizes the creator's engagement in the work without the contentious control implied by the word 'property'? Knowledge fixed in a digital medium is trivially copied, disseminated, and altered. The level of societal control needed to prohibit the exercise of these fundamental digital rights tramples on the liberty of the individual.
"I think that, when pressed, many people who sympathize with Doctorow in this debate would assert that a thing that has no physical manifestation conveys no rights to its creator. But I wish they would come out and say that directly"
That is exactly what many IP opponents state. For example -
Against Intellectual Property, by Stephan Kinsella:
I had the same problem. He seems to define the problem quite elegantly (it's use isn't exclusive, so it's not property, and the word 'property' leads to fallacious reasoning), but he never offers any idea what we should do/say instead.
I looked at the series this article was written for, and the previous article does make a suggestion, and names a group which is working for it at the WIPO.
Here's the key summary:
We need to stop shoe-horning cultural use into the little carve-outs in copyright, such as fair dealing and fair use. Instead we need to establish a new copyright regime that reflects the age-old normative consensus about what's fair and what isn't at the small-scale, hand-to-hand end of copying, display, performance and adaptation.
Hopefully my small extraction here does not fall astray of the copyright laws.
I read the second article. It didn't help my understanding of Doctorow's position all that much.
The problem, as always, is in the details. I want to understand what Doctorow thinks are the essentials of this putative "age-old normative consensus" which he finds so compelling.
Just stating that such a thing exists doesn't get me any farther along to understanding the intellectual framework which he wants to use in order to make the trade off between the creator's interests and those of society at large.
If the IP laws on the books were followed by everyone, it would be a disaster. Any sufficiently large piece of software violates patents, so our “knowledge economy” would grind to a halt.
To me, the definition of a bad law is one where society prospers only because it is violated en masse.
But what if society would be worse off both with a law enforced less and enforced more? Do we have some sort of legal structure for a sort of "optimum statistical enforcement?" Something where someone can be "10% guilty" and pay a 10% fine, or where a certain "penalty" can only be assessed in favor of a given party N times per year, etc. etc.?
"Property" is exactly the word which should not be used for the things Doctorow discusses. The differences between the intrinsic value of knowledge and the intrinsic value of physical possessions are great enough that any attempt to control them in the same way is fallacious.
The treatment of knowledge as property leads to unwise analogies, decisions, and laws. "Intellectual Property" is a loaded term used to mislead people into making decisions against their own self-interest.
You need a license to sell whiskey. You need a license to listen [1] to copyrighted music. Both rules hamper behavior for no reason that can be explained by a physics textbook. Rather, they exist because the restrictions are perceived to add value to society. Maybe they don't. But it's not a philosophical dispute.
[1] Or, really, to use the music in a set of contractually defined ways.
But I never quite manage to understand exactly what he proposes to substantially replace the existing legal and semantic structure. If I make something that doesn't have a particular physical manifestation, what rights and obligations do I have to that creation?
I think that, when pressed, many people who sympathize with Doctorow in this debate would assert that a thing that has no physical manifestation conveys no rights to its creator. But I wish they would come out and say that directly, instead of dancing around the issue while making essentially content-free semantic arguments.