Why intellectual property doesn’t exist

by Mathew on February 27, 2008 · 6 comments

Cory Doctorow, the Canadian author and former Electronic Frontier Foundation staffer, has written a piece for The Guardian that essentially mirrors my own thoughts on the term “intellectual property” — in effect, that it is a dangerously loaded phrase. There’s no question that it sounds really great, and has the added appeal of encapsulating a whole bunch of different principles in a two-word phrase. At the same time, however, it encourages (perhaps even forces) people to think about creative content in a distorted and fundamentally wrong-headed fashion.

Why? Because there’s no such thing as intellectual property in the same sense as we think about physical property. You can steal my car, or my wallet, and that deprives me of those things in a very real way, which is why doing so is a crime. But you can’t steal my idea any more than you can steal my thoughts. And in some cases, taking my idea and adding to it will actually make it better, which is why we have principles like “fair use” and “fair dealing.” There’s no such concept as “fair driving,” where you get equal access to my car (believe me, you wouldn’t want it).

“If we’re going to achieve a lasting peace in the knowledge wars, it’s time to set property aside, time to start recognising that knowledge – valuable, precious, expensive knowledge – isn’t owned. Can’t be owned. The state should regulate our relative interests in the ephemeral realm of thought, but that regulation must be about knowledge, not a clumsy remake of the property system.”

As Cory notes, this doesn’t mean that creators don’t have an interest in the uses that get made of their content. They clearly do, and rightly so. But as I tried to argue during the whole Lane Hartwell debacle, that interest doesn’t exclude all other interests, including the interests of society as a whole in encouraging creativity and freedom of speech. What we really need to find is a better way of balancing those things.

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