Theft of Intellectual Property: Defining the Debate

In his column “Steal This Column” in today’s New York Times, Bill Keller quotes Sandra Day O’Connor on copyright and the Constitution (from a decision I also quote, in my chapter on Intellectual Property in Beyond the Blogosphere). The quote, though, deals with only one side of the question, protection of Intellectual Property through law (copyright)… while the Constitution explicitly defines two types of protection by insisting that copyright be of limited duration. It protects the creator of IP and it protects the intellectual commons that all creators of IP must use in their own production.

In our debates over the extent of copyright on the internet, we continue to define it only in terms of the extent of protection “creators” and their appointees should have. We assume that IP is “property” in the sense of any other, and that it deserves as much protection. But it is not, and does not… certainly not as defined by the Constitution.

Yet we continue to ignore that part of copyright’s definition as we continue to reach for limits of protection of IP (or, actually, of profitability). The rights of the intellectual commons are never vigorously promoted (even those who argue against extension of IP protection do so in other terms), but they should be seen as rights as important as those of creators. Over the centuries, the balance has shifted from a reasonable protection of both (a maximum term for copyright of 28 years) to what amounts, today, to an unconstitutional perpetuity (Disney is not about to let Mickey Mouse free into the commons–before that happens, copyright will be extended once more). 28 years is plenty of time, generally, for one to profit from one’s efforts. And, after all, creativity draws on the commons necessarily, so its production should, at some point, return to the commons to be drawn on in the future.

For a rational copyright policy on the internet, we really should roll back copyright protections, strengthening the commons once more while, at the same time, enhancing protection for those items falling under the copyright umbrella. Unless we do this, “piracy” will only grow, for the commons insists on its rights, and what we are now calling “piracy” is often simply that right.

Until recently, copyright was something one had to actively pursue. If one so desired, a work could be released immediately into the intellectual commons. Most newspaper articles, even through the Jacksonian era, were treated this way (note to Keller… ). Creative Commons tries to allow this to continue within the context of contemporary laws, but I’m not sure that should even be necessary. If I don’t want my work protected and uncopied, why should I have to say so? Why shouldn’t I simply let the work go? Sure, I’d like it to be acknowledged that I wrote it in the first place but, beyond that, I’m really trying to get my ideas and thoughts into the public sphere… not to make money on them, but to participate in the broader cultural debates.

As long as we allow the debate over IP to be over the limits of all ‘content creator’ rights, forgetting the rights of the commons and the fact that not everyone wants those rights (we’re talking mainly corporations, here, and the people who are able to piggyback on corporations), we won’t come to any workable conclusion. The debate, as it is, is rigged for one side, for the owners of copyright.

We need to bring the rights of the commons back into the debate.

After all, the Constitution demands it.

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