The Life of Intellectual Property

This week I read the first four chapters of James Boyle’s The Public Domain: Enclosing the Commons of the Mind. Boyle, an intellectual property scholar and one of the founders of Creative Commons walks us through over 200 years of patent and copyright history in the United States to help us understand how the rules on intellectual property rights came to be. A history-lover myself, I enjoyed this meander through time until we entered the space age where technology began to expand faster than laws could keep up. The courts, lawyers, and legislators seemed to be making rulings on new creations (video, audio, computers, VCRs, internet) without any idea or understanding of what those creations would grow up to be, or look and behave like. The laws and rulings made were based on the laws for patents and copyrights, but with the advent of the internet, courts and lawyers found it difficult to apply those intellectual property laws in a balanced and reasonable manner to online material. Laws are made to control or limit and the internet is made to be limitless, or as Boyle says it, “The logic of control is not the logic of the Net”.

Boyle refers often to some key points penned by Thomas Jefferson in a letter discussing intellectual property of the 1800s: the patent. Jefferson states that “patents are a tolerated monopoly” where competition is limited. In other words, if we don’t have enough competition present, we can put up with having patents. He also said that intellectual property rights are given by society to benefit society and that they should be extremely limited in scope and length. If we consider the domain of the internet, patents (or intellectual property laws) are not a good fit. Jefferson said they should be used when there is no competition. Surely the internet has limitless possibilities of competition. He said they should benefit society. Certainly we see that some limits put on the internet benefit society (blocking some sites for children, not allowing hate speech, etc.) But, do the intellectual property laws on the internet benefit society? Surely sharing and collaborating would benefit society more. Lastly, Jefferson said that these laws should be extremely limited in how long they last and how much they cover. Yet intellectual property rights are the norm rather than the exception across the internet. These rights last decades after the creator dies, which, given the speed at which the internet changes and adapts, renders the creation useless and out-of-date before it can be used. Further, Boyle pointed out that originally Fair Use was the rule and copyrights the exception. By the end of the 20th century the rulings of the courts had made it seem the opposite.

I will be gracious to the lawyers and courts of the 1980s and 90s who had no inkling of how the internet would grow or that it would become the main thoroughfare of information, business, education, communication, and entertainment in just a few years time. However, now that we know more clearly the possibilities and challenges of the internet, perhaps we need to rethink the laws that govern the intellectual property on it. Perhaps, rather than treating that property like Velcro or a new type of pillow, we treat it like a new entity with commonly shared rules that benefit the global society, incentivize and encourage learning from one another, and return Fair Use as the norm.

Some questions I’m pondering:

1. Given the short life of things on the internet, what would be an appropriate length of time for an intellectual property right’s life?

2. Jefferson’s stated that a limited intellectual property should provide the minimum necessary incentive to encourage the desired level of innovation. How does this apply to OER? What limited monopoly needs to exist to incentivize and innovate?