Ownership vs. creativity. We’re going to have to decide why we protect intellectual property. Is it to own ideas? Or is it to reward creativity? Copyright and patent law are supposed to do both, but new technologies make them do neither. Worse yet, technology is making creativity incompatible with the ownership model.

As a creative type, I’m supposed to be all for ownership, and yet I find the concept of owning ideas ridiculous. All ideas stand on a stage built of other ideas, even when they’re as great a breakthrough as Einstein’s famous equation. Yet the partial interest of the “minority shareholders” is not recognized. How can a property right be justified that is based on stealing other people’s property rights? On the other hand, if having a hand in creating something does not confer rights, then the main creator doesn’t have any either.

The absurdity of treating ideas as property is evident in other ways. There is no relation between the usefulness of an idea and its level of protection. The equivalence of mass and energy was never patented, but one-click shopping was not only patented, it was litigated. This is not a simple matter of one being a discovery and the other an invention. Genetic engineering is based on decoding DNA. Not inventing it. Decoding it. The discoveries of the genetic engineers have been patented for no other reason than the widespread ignorance about what workers in white coats actually do. People were at least as ignorant about what Einstein was doing, but he didn’t think to hire a team of lawyers because of it.

Further, if an idea can be owned, what does that mean? If a piece of music is sold, some part of the rights used to be sold under what was called the “fair use” doctrine. The buyer had control over it similar to their other property. But recently a “no use” doctrine seems to be gaining currency. You may buy it, but every time you want to use it, you should pay again. Ownership becomes meaningless.

There is neither rhyme nor reason regarding which ideas become property, which don’t, what they cost, or who pays for them. The operating principle seems to be, “You pay for it because I grabbed it first.” This may be expedient, but it is not valid. Capitalism is not actually supposed to be a criminal enterprise based on might making right.

Creations are, in essence, ideas trapped in three dimensions. They’re really more like thoughts than things, and they share the traits of other intangibles, such as hope, love, truth, beauty, or justice. These simply are not property, they can’t be owned, and any attempt to buy them changes them into something worse than worthless. Information doesn’t just want to be free. It has to be.

Beans can be counted. Ideas can’t. The ownership model suffers from the delusion that in a perfect world there would be a one-to-one correspondence between payment and product. But when the product is an idea, you might as well try to count moonbeams. Creations travel with the speed of thought, literally so in an electronic age. Slowing them down enough to corral them and limit their spread reduces the number of people who can benefit from them. This is not in the interests of consumers, who lose out, nor is it in the interests of creators, if they’re paid based on how many people use their product. The only reason it seems like a good idea is that we don’t know any other way to do it. That is a failure of imagination, not a proof of effectiveness.

The actual point behind payment for intellectual property is that the most useful “properties” should yield the greatest return. Our current system is very far from giving the biggest rewards to the people who create the value. The artist or inventor is generally the last one in the food chain that depends on their work, and as often as not they miss out on the distribution entirely. If our current system can miss its point so badly, and yet be seen as having merit, then any distribution of royalties that does a better job of accruing to the creator, even if it is imprecise, would be an improvement. As a matter of fact, it is *easier* to reward creativity if the ownership model is abandoned in favor of limited creator’s rights.

What we need is a method of figuring out how widely used a product is. That is a *census* issue, not a sales issue. Methods of estimating flows have grown very sophisticated. Wildlife biologists have techniques to estimate migrating populations of animals. Traffic engineers do the same with cars. Telephone companies have ways of estimating the flow of calls.

Similarly, software usage, movies, music, games, and anything that moves over the net could be censused as it goes by. Product headers (such as the “created with the Gimp” embedded in graphics files made with that program) are another source of usage data. Automated spot check queries could go out to computers, phones, or wifi players asking users if they would mind a poll of the software in use on their machine. There could be self-reports, like the Nielsen ratings for tv, to estimate usage of other popular items.

A program that is used daily, a song that is shared all over the world, all kinds of increased usage then help rather than harm the creator. Users don’t have to pay each time their eyes rest on a screensaver, but the most popular screensavers provide more money anyway. People whose function is packaging rather than creating, movie producers, publishers, agents, and the like, could contribute to a finished product the same way they do now, although their strategic significance in the process would probably change.

Payment. How would the user pay if usage and payment are separated? The answer seems obvious to me: by including a royalty fee in the sale of anything involved in using or enjoying the fruits of someone’s creativity. Memory, computers, displays, phones, routers, the list is quite long, and some percentage tacked on to each one could provide the funds that are then divvied up based on the census. This has seemed like the logical solution to me for years, and I heard somewhere that the Dutch are actually trying it. However, they missed on one important point. Artists who want to participate have to sign up and pay a fee. Needless to say, the type of starving artists who need the system most are not in it.

A census method would solve almost all of the problems that plague the current system. Ever since the printing press made it easier to share ideas, sharing has been known to generate incalculable social value. If information were set free, we could concentrate on creating that value instead of bogging down in futile attempts to count usage by hijacking computers. Creators could concentrate on creating instead of wresting royalties out of megacorporations. It’s true that people would not get paid for every single copy of their work, but they don’t now, either. Under a census system, most people would get paid a lot more than they do now. As a matter of fact, the only ones who would lose big are the megacorporations themselves. And that, of course, is such a minor objection that we should see an open and rational system in place any day now.

Update, March 5, 2006

Dream we dream together is reality. (Yoko Ono)

From the BBC report on French filesharing legalization:

MPs introduced an amendment which would authorise internet file-sharing by setting up a “global licence” system.

Users would pay a few euros a month to download as much music or film material as they wanted, with proceeds going to the artists.

Socialist MP Patrick Bloche helped draft the amendment.

He argues it makes no sense to treat several million French internet users as potential offenders.

“Rather than outlawing, punishing, and paradoxically maintaining to a certain extent an illegal system,” he says, “let’s make a different choice: authorising peer-to-peer downloading, but in return, putting in place a system allowing artists to be paid.”

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