As I mentioned in the last post, my dissertation concerns intellectual property rights. I am currently writing a chapter on the information commons in which I argue that the information commons should be understood as a collection of memes. As such, agents must have some presumptive rights to access the information commons. Otherwise agents would not have presumptive access to the contents of their own minds. To understand why this should be so, a little bit of unpacking is required.
“Information commons” is a way of talking about generally known or available information. The information commons includes inchoate ideas as well as complete works, both public domain and protected works. Intellectual property scholars invoke various metaphors to explain what the information commons is, why it is so important, and how it should be preserved. The most straightforward model, the one which the very term arises, comes by way of analogy to a physical commons. The information commons is a stock of raw materials, available for anyone to appropriate and incorporate into creative or innovative projects. It must be treated as a natural resource, preserved for future generations of creative minds.
While the analogy to the physical commons has a good bit of explanatory power, it's just not robust enough to do any work in a system of intellectual property. Granting that there is an information commons that conforms to the geographic metaphor, who should have access to it? Can the information commons be ruined or spoiled such that an environmental ethics is necessary? The answers to these questions lie somewhat outside of the geographic metaphor. As such, the answers vary according to the external principles, values, or theories to which one appeals. As a result, the geographic metaphor will become vulnerable to new objections, and we will have at best, an inconsistent treatment of these issues resulting from the clash of intuitions.
Rather than sort of these issues in detail, I prefer to ditch the geographic metaphor for a model more consistent with the actual constituents of the information commons. The problems that arise for the geographic metaphor have their origins in the analogy between physical property and intellectual property. Physical property is rivalrous and exclusionary, but intellectual property is neither. When an artist draws on the information commons, he does not remove anything because the same ideas are still present for someone else to use. As such, the proponent of the geographic metaphor has to defend any preservation project against fairly intuitive objections. Resorting to a different model of the information commons, one that construes the commons in informational terms, can avoid such objections and provide a more complete account of how the information commons should impact intellectual property policy.
For these purposes, employing Richard Dawkins's notion of memes is very helpful. The information commons is, not surprisingly, composed of information, ideas. “Memes” are “units of cultural transmission” to use a phrase from The Selfish Gene. Like genes, memes survive through replication. If one person thinks an idea important, she will tell others about it, ensuring that there are many copies of the idea. When we talk about the information commons, we are talking about the collection of generally-available memes, the ideas that circulate among living minds.
If the information commons is understood in this way, agents must have some presumptive rights of access to the information commons because “information commons” is just a way of talking about ideas in individual minds. An agent must have access to the contents of his/her own mind; any other situation is incoherent. Access to the information commons can be understood as reading permissions, manipulation/transformation permissions, and communicative permissions. Each set of permissions will be addressed in turn.
Reading permissions are the least problematic, in part because they are entirely self-regarding. An agent causes no direct harm by reflecting or analyzing an idea. Any idea to which an agent has been exposed to must be up for consideration in the mind. Defining transformation permissions, the ability to manipulate memes is not much more problematic. Beyond merely considering ideas, agents will inevitably engage in some creative thinking utilizing known memes as raw materials or starting points. Some creative thinking will be take place entirely in the head, some might find its way onto a tangible medium while working out the details, and some will result in complete works. In an intellectual property system that bestows copyright on any work once fixed in a tangible medium of expression, such activities will sometimes run afoul of existing copyrights or constitute infringement. An intellectual property system that presumes any use or derivative is infringing absent a successful defense (as US copyright law does) outlaws a normal activity of thinking beings and enacts an unenforceable ban. For the purposes of defining a minimal set of access rights, all one need specify is that creative thinking, including the creation of new works, is presumptively permitted absent considerations about the circulation or commercial nature of any creative products. Circulating a work and profiting from it are public activities that can be effectively policed. The extent to which they ought to be so regulated must be answered by the schema of communicative permissions.
Defining the minimal schema of communicative permissions presents the most complex problem. At base, one might wonder why a special scheme of communicative permissions is necessary. Reading permissions and transformation permissions both center on self-regarding acts, private acts that affect no one. By contrast, communication is a public act, and, given that communicative permissions might include permission to publish, distribute, or sell the work, communication can be an economic act as well. If one holds the memetic view of the information commons, there is good reason to think that some base communicative permissions are warranted. Consider the counterfactual situation; were agents restricted from discussing memes from the information commons, all communication and conversation would be chilled. Before speaking, an agent would have to assess the contents of her utterances for protected content and remove those references that she is not permitted to discuss. Again, such a ban would be impossible to voluntarily follow and impossible to enforce. At minimum, agents need to be able to comment on memes to which they have been exposed, criticize or analyze them in discussion, and inform others about them.
The permissions defined here are the minimum an intellectual property system needs to satisfy coherence with the memetic view. More extensive rights cannot be defined without reference to how intellectual property rights interact with this base set of permissions. Nevertheless, some necessary groundwork has been laid. Now, I just have to expand those arguments for inclusion into the dissertation.
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