Had enough of discussions of intellectual property on the information
highway yet? Do most (all?) of these discussions confuse you, and leave you
wondering what they have to do with you, let alone what you can do about the
issues involved? Do they remind you of other things you should know, but
which somehow you never really miss (or are punished for) not knowing?
If so, you are in good company. But the fact that you and so many other
networking enthusiasts are tuning out these discussions is a serious
problem. You have likely already gotten the message that royalties to
intellectual property owners will some day soon be a significant
determinant, perhaps even the most significant determinant, of what you will
pay for the things you find on the information highway. And, particularly if
you believe that access to networks and digital libraries will be as
important to economic and social well-being in the Information Age as access
to trade routes and natural resources were in the Agricultural and
Industrial Ages, you are likely to begin worrying that how networked
intellectual property is defined and managed may have an unhealthy influence
on future political opportunities and processes. Let's take another run at
this topic, and try to get a handle on why most discussions of networked
intellectual property turn off the very people they are supposed to help.
It is easy to blame the problem on lawyers and economists, since they are so
much in evidence in these discussions. But we could banish, at least in
theory, all lawyers and economists from these discussions and still be
dogged by a key central problem. When most of the people involved in these
discussions think of networked information resources and services, they
think in terms of plain text (that is, text that is not encrypted)
electronic mail and its derivatives (listserv-mediated Internet discussion
forums, for example), and relatively rudimentary server platforms (like FTP
archives and Gopher). The perspective generated by this experience sees the
networked environment as very leaky for intellectual property, an
environment in which things can be both appropriately and inappropriately
copied and distributed on a massive scale at a single keystroke. An
alternative perspective, typical of people who have access to client/server
applications, like the World Wide Web and its various browsers, and who are
not generally participating in these discussions, suggests that technical
measures (such as authentication, encryption, imbedded license enforcement,
accounting, and billing, etc.) can be used to render a given item of
intellectual property as secure as its owners desire and can afford. Debates
over networked intellectual property are confounded by people who subscribe
to these two different points of view talking completely past each other.
They may both be talking about networked information resources and services,
but they have totally different things in mind when they do.
Both perspectives encompass elements that must be respected, and other
elements that must be challenged. But debates about the leakiness of
networked environments are completely uninformed by, let alone responsive
to, the intellectual property problems that are unique to the production,
distribution, and utilization of "networked" information. For instance,
collaborative works (that is, works created and, therefore, likely owned by
more than one author), composite works (that is, works with distinctive
intellectual worth that, in part or even in the main, are made up of other
works, frequently accessed in real time), and dynamic works (that is, works
that are never really finished in the usual sense of the word) will be so
common on digital information highways that they might even become the rule
rather than the exception that they are on today's analog ones.
In addition, networks have already started to disassemble the basic
packaging conventions that structured the pre-network marketplace for
scientific and scholarly publications. It is now possible to acquire such
information from its publishers, or their agents, by individual articles or
chapters as well as packaged together with other articles and chapters in
specific periodicals and books. And, in short order, as the gathering body
of experience with networked hypermedia attests, it will become equally
possible to access paragraphs, figures, tables, and other parts of
individual articles and chapters. A new intellectual property regime that is
geared toward the digital versions of what we now use on paper and existing
packaging conventions and patterns of use will solve only the simplest of
our networked information problems, no matter how difficult and time-
consuming the search for that new regime proves to be.
The Constitution of the United States empowers the U.S. Congress with the
responsibility to devise a system that best promotes the progress of science
and useful arts. It will be impossible for the US Congress to do this well
until it has the benefit of much more information about how science is done
and the useful arts are pursued in networked environments. And, the only way
to generate that experience is for individual research and education
enterprises and for governments at all levels to do everything that they can
to provide access to networks and digital libraries by many, many more
scientists and practitioners of the useful arts. This will require much more
attention directed toward the scholarly and intellectually productive uses
of networking than the popular media's fascination over the last two years
with networked retail and entertainment services has allowed.
In addition, all of us who play a role in the value chain of productive
relationships that links creators and users of intellectual works need to
ensure that legislation and litigation are not the only means by which the
nation sets guidelines for proper and improper uses of intellectual property
on the information highway. We need to redouble our efforts to make the best
use of licenses and other negotiated agreements, and we need to give serious
attention to mediation and even arbitration as strategies for resolving
conflicts between buyers and sellers in the new and fragile marketplace for
networked information. We may not be having fun yet, but it will be
distinctly less fun if we leave the networked information property issue to
only those people who are already interested in "that sort of thing."
Paul Evan Peters is executive director for the Coalition for Networked
Information.
© 1995 Educom.