Thinking About Intellectual Property

In my previous post on Intellectual Property I criticized the IP laws in both Canada and the United States as being fundamentally broken.

I've since had the opportunity to throw around some additional ideas about IP that form the basis of an interesting model that is neither copyright nor patent. Given that my own personal background is firmly rooted in software, this model reflects the flexibility and ambiguity of the software world, but I suspect that many aspects of it can be applied in other domains.

Additionally, one of my mental goals is to neuter so-called "Patent Shark" companies that exist primarily to sue others, or the RIAA which seems to exist to perpetuate its own lawsuits.

Principles:

(1) Recognition and Protection of Innovation

There is a legitimacy to the notion that innovation has a legitimate commercial value, and should be provided a reasonable degree of protection from predation.

This is balanced by a recognition that protection cannot be an eternal absolute, as that will be as damaging to the long term viability of creative processes.

(2) Fair Use

There are legitimate cases where the use of an innovation or solution bears no commercial value per se, or that an innovation has passed into the greater body of "common knowledge". Such uses should not be punished.

(3) Timeliness

Because so much of what is called "intellectual property" is the result of independent thought and creativity, there are legitimate times when two or more independent efforts achieve very similar results. Any system of IP management must recognize the validity of such situations.

Implementing The Principles

(1) Providing Protection

The expression of an idea or method whether it is an abstraction such as an algorithm, or something more concrete such as a mechanical contrivance such as a printing press shall be afforded some degree of protection from unfair duplication without permission.

(1a) Degree of Protection
The more abstract that a concept or method is in its description, the degree of protection provided is reduced. For example, a generic method such as "Method to Record Information On Magnetic Disk" that describes the concept would receive a lesser degree of protection than one which described in detail the implementation necessary.

(1b) Compensation
The owner of a protected work shall be afforded the right to recoup compensation from infringing works at a "royalty rate" commensurate with the degree of protection provided. In other words, a vague "concept" would receive a smaller royalty rate (say 2% of commercial value), where the more concrete would perhaps be eligible for a higher royalty rate (say 5% or more).

*** The numbers here are arbitrary - imagined more than anything.

Note: The notion of "punitive damages" as is common in today's courts is intended to be replaced primarily by the use of a royalty scheme for the most part. The use of "punitive damages" shall be restricted to those egregious situations where outright theft for profit has been demonstrated in a criminal court.

(1c) Finiteness

Protections are of limited duration.

In general, nothing has an "infinite" protection. A software algorithm (for example) may be protected for 10 to 15 years, after which time it is presumed to pass into the "common knowledge" of the discipline.

While "lifetime" protections may be assigned to individuals, they are not considered transferable to other entities such as their estates or to corporations. Once transferred to a corporate entity, the timer starts ticking.

Further, corporate entities which hold IP rights are constrained to specified, finite periods of ownership. After those rights have expired, new rights may be applied for, which shall be adjusted to reflect evolution of the IP involved, as well as its growing pervasiveness due to age and widespread use.

(2) Fair Use

The concept of fair use must apply to individual copies made for personal use, and non-commercial gain.

While it is reasonable to insist in such cases that the copied work be acknowledged in some way, we should not be punishing individuals for what is essentially personal activity.

This does not mean that commercial infringement, where the infringer is achieving economic gain as a result of the infringement is beyond reach. In fact, it is in those cases that compensation shall be due. (One note here: As with telephone systems, we should view ISPs as "common carriers", and not specifically liable for the information which passes through their equipment)

(3) Timeliness

As the concurrent works of Alonzo Church and Alan Turing demonstrated in the 1930's we cannot simply expect that the day of "release" immediately closes the gates on all others. There shall be a reasonable period of time to allow for equivalent, parallel work to emerge and both shall be granted equal protections in law and shall legitimately coexist.


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Really, this is just a few random thoughts at this time - intended to record some ideas that will no doubt get refined over time.