Sunday, 6 November 2005

"Intellectual property": is Richard Stallman right?

The IPPR (Institute for Public Policy Research) is a think tank influential with the Labour government. In mid-2005 they launched a project entitled "Intellectual Property and the Public Sphere: Balancing Competing Priorities".

Will Davies of the IPPR recently posted Richard Stallman's email on 'The mistake of discussing "Intellectual Property"', which took issue with the project title. He asked for further views on the subject.

I happen to think that the project title is a fair one, indeed, a good one, much as one might hesitate to disagree with someone as illustrious as Mr Stallman (and I will also admit to a soft spot for anyone who could not only write a "Free Software Song", but also allow his rendition of it to be disseminated publicly - thanks to Cory for the pointer!).

I think that you can't divorce the meaning and usage of a term from its context. I take Mr Stallman's point, of course (expanded on in his article "Did You Say "Intellectual Property"? It's a Seductive Mirage" ), that "intellectual property" is too often used too loosely to encompass a whole range of entirely disparate concepts and laws, which thus encourages sloppy thinking and overgeneralisaion.

I would first clarify that I do not at all disagree with Mr Stallman that copyright, patents and trademarks are different creatures, even from each other, and entirely different from physical, tangible property which is clearly delimited (and limited) spatially and which you can touch, damage and change physically. I share his view that laws which are appropriate for dealing with physical assets should not be applied in exactly the same way to assets which are completely different from them in nature, and that those laws would not (and should not) serve the same purposes in relation to wholly different assets.

However, my question is: what is the purpose of the IPPR project? One has to look at the issue in that context. And the purpose of this project, according to the IPPR's project overview paper, is this: "The project is intentionally very broad in its scope: it aims to assess the various public and private goods that are at stake in the way that the UK regulates intellectual property, in the context of new media. We believe that there is now a hunger for just such a far-reaching analysis in government, in industry and amongst creators. On two things, nearly everyone is agreed. Firstly, that technological change is creating new pressures on the way that intellectual property is defined and protected. Secondly, that polarisation between rival viewpoints does not benefit anyone. Now is a good time to stand back from the debate, and ask what it is that the public sphere requires of a good IP regime in the first place."

An excellent aim, many of us would say, and not before time too. So what's wrong with that? Why should the project be narrowed (as Mr Stallman suggests) to say "Copyright and the Public Sphere: Balancing Competing Priorities", or "Patent Law and the Public Sphere: Balancing Competing Priorities"?

I'm no IP expert but the area interests me, how society and culture adapt to changing technologies interests me, and I've picked up enough to know that in IP law there are many grey areas. Things can be pretty uncertain because the law isn't clear, or has been applied inconsistently, even within the same country. Because of that, I do think it is sensible to consider as a whole the IP sphere (or what people commonly think of as "the IP sphere").

For example, take the debate over whether computer software is (or should be) dealt with under copyright or patent law, whether they are (or should be) protected under one or the other, or both. Copyright and patents are two entirely different things, strictly, as Mr Stallman says, with entirely different purposes. But because of the grey areas caused by the current uncertainties about how you deal with "property" rights related to new technology or media, if you're considering something like software you can't just look at copyright, you have to look at patents too, and how they might overlap, and what is the best way to deal with that overlap so as to try to balance the competing priorities as fairly as possible. I just don't think you can analyse properly where IP law is now, and where it ought to go, by considering only single aspects of it in isolation.
And don't forget that the laws on copyright and patents etc may be different from country to country in the way they treat different things, sometimes in subtle but important ways. For example, in the USA there is a general concept of "fair use" of copyrighted works, with factors to be considered in deciding what is or is not fair use; in the UK (see the unofficial version linked to from the UK Patents Office's page on copyright) there is no longer any GENERAL concept of fair use, but rather certain narrow categories of things (like private research or reviews/criticism) which are specifically considered to be "fair dealing". If something which would violate someone else's copyright is not within one of those specific categories, it just can't be "fair dealing" legally, in the UK, and would not be allowed even if in common sense terms one might consider it "fair use". (There used to be a broader concept of "fair dealing" but its scope has been significantly reduced, and I happen to think it's gone too far in the direction of rights holders, but that's for another post...)

There is also the issue of what resources are available to the project. Resource permitting (within the timescale laid down for the project), there is no reason why there can't be separate but co-ordinated mini-projects on copyright and patents, on trademarks and more esoteric things like service marks, but under the same overall umbrella of the main project - each bearing in mind the overarching project goal and the need ultimately to consider things together in the round in the context of that goal. If that was the approach it would be perfectly sensible to give the project the more general "IP" title.

Then, draw the mini-projects together, look at them both as a whole and separately, figure out the areas of duplication and difference, how the various areas should be integrated (or not, if that is the case), and draw conclusions and make recommendations based on that. And, in the report, make clear also that the distinctions are as important as the commonalities, and spell out what they are in order to try to clear up the confusion. (To me, education is generally the best solution, if at all possible: more people trying, as Mr Stallman does, to get the message home that different principles and policies apply to copyright as they to to patents and trademarks.)

Of course, if the point is that there isn't the resource to cover what is such an intentionally broad project in the time available (July 2006 is the deadline), and that is why its scope should be narrowed, then that is an entirely different matter. But I don't think that was what Mr Stallman was driving at.

So, I think "IP" is not too general a term to use: it all depends on the purpose, scope and timescale of the project, and the resources available to it. I say that, depending on the purpose behind it, lumping it all together is fine in order to develop a cohesive overall approach, as long as you also make clear that there are distinctions and differences, and what they are. And in the context of this particular project, which is a very interesting and worthwhile one, I think the scope is about right, and I look forward to seeing what their eventual conclusions are. Though if they were able to throw more people at it, that would probably be no bad thing.

Just my 2p's worth...

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