Saturday, December 03, 2005


ippr Paper on Intellectual Property

The ippr think-tank has published a paper "Markets in the online public sphere" on Intellectual Property issues. (Author William Davies).

The paper is an attempt to identify the questions involved, rather than answer them, and as such is worthwhile but not particularly exciting. The main new idea is to classify information transfers in the digital realm according to temporality, classifying information as:
These categories leak into each other, but are probably a useful tool in thinking about the issues.

The leakiness is what the author appears to see as the root of the problems - how one can protect commerce in Content without unacceptable impact on Deliberation or Heritage, or conversely how can one protect the freedom to Deliberate without destroying the business of Content.

While those questions are real, to me they are not the sticking point. I believe that compromise can be reached on what forms of information transfer should be restricted and what shouldn't. Not a perfect compromise, to be sure, but some kind of widely acceptable outcome.

What I see as the most vital issue is not what should be subject to restriction by law, but who should bear the cost of enforcement. That might sound like a minor detail, but it is in fact the fundamental problem, with far-reaching consequences.

The costs of enforcing a law can be divided into two categories. There are the direct costs of detecting and pursuing infringers, and the indirect costs of requirements and prohibitions put on various parties to facilitate the prevention, detection, or pursuit of infringers.

There is no easy appeal to precedent from other realms of law. The choice between direct and indirect methods of enforcement, and the allocation of the costs, vary widely from one area to another. To make concrete what I am talking about, here are some examples.

The laws of theft covering ordinary physical chattels are enforced directly by state-funded police. They will investigate infringements and pursue infringers. Relatively little effort is normally made by the state to directly prevent infringement - if he wants his property guarded (e.g. against shoplifters) it is up to the property-owner to supply locks, security guards or CCTV cameras at his own expense. The indirect enforcement is lighter but does exist - in general you are prohibited from carrying certain tools (under the offence of "going equipped"), and when buying goods you have a certain responsibility to ensure they are not stolen (under the offence of receiving stolen goods). These activities are prohibited not because they are directly harmful, but because prohibiting them makes it easier to enforce the laws of theft - they are indirect costs of enforcement.

The ordinary laws of contract put the bulk of the costs of enforcement on the contracting parties - in the case of a dispute they are required to investigate breaches and bring legal actions at their own expense.

The laws governing public corporations put very heavy indirect enforcement costs on all corporations to prevent fraud. Corporations are required to have audits, to publish accounts, and to refrain from many kinds of activity which are not harmful in themselves, in order to facilitate detection of fraud.

The laws on driving cars likewise put direct and indirect costs onto all drivers, requiring registration of vehicles and drivers and regular mechanical tests by state-certified mechanics in order to enable effective enforcement of safe driving.

Back in the sphere of IP, I think the questions of what harmless activities are to be prohibited and what requirements will be put on consumers and producers, in facilitation of regulation of activities considered to be harmful, and also of the question of to what extent the state itself will take responsibility for enforcing regulations covering transmission of digital information, are more crucial in their effects than precisely what is to be allowed or restricted.

The other significant questions, which are quite separate in motiviation from the commercial and IP issues that the paper addresses, but which cannot be ignored because of the overlap in enforcement methods, are the restrictions to be made on digital information for the purposes of protecting personal privacy (regulations such as the Data Protection Act), for the purposes of "public decency" (obscenity law) and for the purposes of national security (e.g. the current EU discussions over data retention).

That these questions cannot be isolated is demonstrated by the suggestion by representatives of copyright holders that data retained for the purposes of national security should be made available for enforcement of copyright law.

The paper is published as part of the ippr's project 'Intellectual Property and the Public Sphere: Balancing Competing Priorities', so perhaps there will be further publications addressing the issues above.
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