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July/August 1996
INTELLECTUAL PROPERTIES
TOPIC #1: GETTING STARTED
by Robbin MurphyWhen Intelligent Agent asked me to write a monthly column, I immediately chose the issue of intellectual property rights, and in particular copyrights, as a topic that would be useful for IA readers. It's an area with a great many experts, most of them lawyers, and very few answers, particularly for artists.
I also thought it would be easy, since I've been interested in the subject for a few years and know enough of the basic legal principles to write a simple introduction.
That was over a week ago and I'm still getting started.
I wrote a first draft that very afternoon. In it I gave a short synopsis of the history of copyright: from the granting of the right of authorship during the Renaissance, continuing through the exclusivity rights granted to printers in Elizabethan England and the reinterpretation of that law by the writers of the U.S. Constitution; and finally, up to the present-day controversy in Congress over how to protect these rights on the Internet.
That didn't seem to be the right approach. The history was interesting but not useful in dealing with digital technology.
In the second draft, I summarized the U.S. Copyright Laws as best as I could but realized the laws don't clarify much without bookshelves of examples of case law to illustrate how the courts have interpreted them. Anyone who has studied law knows it's more often than not a matter of where to draw the line-or even finding a pencil-rather than a clear cut case of a person breaking a set rule. Copyright, like libel, is particularly prone to this kind of interpretation. I decided that approach demanded a lengthier forum to be of any value.
On to the third draft.
I took a more philosophical track and explored the concept of intellectual property and how it intersects with current dialogues about the workings of the mind, embodiment and postmodernism. Sherry Turkle I'm not, so I put the piece aside and went online to surf the Web for inspiration.
Or so that's what I told myself I was doing.
Legally, I was looking for other people's intellectual property to take and use as my own, something we all do all the time. Is that a kind of theft? Yes, I suppose so. Do we do it all the time? Yes, again. That is the basic paradox of copyright law and a good place to start when trying to understand its complexities and contradictions.
On the one hand, copyright provides a means for creators to profit from their creations. While I don't pay for anything I find on the Net, more than likely the things that are of use to me are written by people who have managed to make a living, at least in part, because they are paid by someone for their creativity: people like John Perry Barlow, Pamela Samuelson, and Esther Dyson, who see a future where intellectual property is an inadequate term to use for what we actually create; and Bruce Lehman, chair of the government's "Working Group on Intellectual Property Rights," who is fighting to civilize what many people see as a lawless frontier.
On the other hand, we have the right to use each other's ideas because it's generally acknowledged that creativity doesn't happen in a vacuum-we need to appropriate and adapt the ideas of others to form our own. We have the concept of "Fair Use" built into our copyright laws.
The problem then is in drawing the line between using intellectual property without harming the creator, and taking the property so the creator can no longer benefit from it. This is the point where the Internet causes so much anxiety. We've been able to mechanically reproduce material and use it for some time now (photocopying machines and videorecorders have had their days in court) but the Internet makes it vastly easier, if not automatic. Plus there's the fact that it's a global phenomenon exacerbating the sense of being lost in a foreign culture with an entirely different set of values from our immediate society.
These are issues that can't be easily laid out and solved because each new answer results in an entirely new problem. So what I plan to do is use this column as an ongoing and evolving look at what intellectual property is becoming, using the Internet as a navigational tool. In the meantime here are a few resources to get you started.
RESOURCES:
Pamela Samuelson article for Wired on the Government's White Paper
Esther Dyson's "Intellectual Property on the Net"
John Perry Barlow, "Wine without Bottles"
United States Copyright Office
Information Infrastructure Task Force Working Group on Intellectual Property Rights White Paper
Transcopyright
By Ted Nelson
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