Common Rights / Collective Rights

Applying Collective Rights to Intellectual Products

We all have rights, rights are good. For example, one of the most sort after common right is the right to free speech. There is sometimes a negative connotation to the word 'right' when it is applied to intellectual property and this stems from the fact that, in most copyright regimes, rights are focused on an individual who is granted exclusive reproduction rights to a resource that has no naturally limitations in the physical world. Unlike a parcel of land, which can only support a limited number of individuals, many people can access an intangible intellectual product without physically taking anything away from other users. Therefore, why give individuals rights over this unlimited common resource? The answer has always been that these rights will provide incentives for authors to create new works and then publish them for the good of all. I propose that we maintain this incentive but that we apply rights to intellectual property in a new and more just way, while still granting the author some singular rights for a limited term others should also be able to obtain rights to the creative product.

Here I examine the common rights to intangible intellectual products and how society might apply collective rights to these products once an individual ‘creator’ has mined them.

The potential store of intellectual products waiting to be discovered is infinite and therefore everyone can truly have a common right of access to that infinite store without impinging on anyone else's access to the field. Under our current copyright regime, once an individual discovers or mines one of these products society grants this person sole reproduction rights to the physical expression of this product for a limited time. In theory, the idea or concept contained in this expression rests in the common domain and is available to everyone who can obtain a copy but no one else is allowed to reproduce the product in any form except for some 'fair use' exemptions. After the copyright term expires the expression of this intellectual property passes into the public domain and the intellectual product as a whole regains its common status.

I propose an alternative and, I believe, a more logical approach. Once an individual mines their intellectual product they should be granted a controlling interest in a collective that has rights to this intangible intellectual product. To claim this collective right the author has to produce at least one tangible representation after which he or she has a controlling interest in this collective product for a defined term. From then on they can invite others to share in this product and so join the group that has collective rights to the product. As for any collective group there are rules for each member and I lay these out in detail in my proposal for the Distributed Intellectual Property Rights system.

One of the rules of this collective regime is that only the original author can use the product commercially unless they choose to pass on this right to another member of the collective. This, of course, could mean that the author stipulates that others have to pay to join the collective. Where does this leave the common right of access to this particular product for the rest of society? Well, others are still free to rediscover the product completely independently (although this is unlikely to happen for complex intellectual products), or they can join the collective under the terms offered by the author, or any member of the collective can donate common access to the product to any other member of society. If common access is donated in this fashion society as a whole has to adopt the rule that the recipient of this 'donated common access' has no rights to the product other than access, they cannot copy it, pass it on, or do anything else with it.

Each member of the collective is granted individual and exclusive property rights over their, uniquely identified, physical manifestations of the product. Therefore they are free to make any number of copies of this physical product to protect their interest in the collective intangible product and to protect their access to the product. Note that an individual group member's exclusive control over their uniquely identified physical copy does not conflict in any way with the tangible interests of other members of the collective who have their own unique physical copies.

At the end of the term of special controlling interest in the collective the author will remain in the collective, as do the other collective members, but access to the collective becomes publicly available and restrictions on the use of the product by collective members are relaxed. Effectively the product reverts to the public domain of common rights of access with the advantage over copyright that the system continues to make the product available by ensuring archive copies.

Table A1.1 - Summary of rights under copyright and collective regimes:

The differences between a collective rights regime and a copyright regime are sometimes subtle and sometimes significant. Under the collective scheme the exclusive rights of the author are diminished which gives the impression of not improving the rewards for creative effort but if there are rewards to be had they still go to the author. Also, the common right of access for society as a whole is increased which achieves one of the main aspirations of our intellectual property systems but this still does not appear to benefit the author.

The important difference is that the rights of the group that buys into the collective product are vastly increased in comparison to the users who purchase copyrighted works and it is this that will encourage collective membership and in turn improve support for the author.

It can be argued that the individuals who obtain legal physical copies under the copyright regime form a collective group but members of this collective have only one right, namely, to do what they like with their one physical copy. A very small incentive. The individual who obtains an illegal copyrighted work, especially when we consider digital products, has the same or even increased incentives (lower purchase cost) and only a limited risk of legal penalties (how many MP3 file swappers have been prosecuted?). It is important to make the legal product worth having, by granting wide ranging collective rights, and not rely solely on penalties to discourage illegal copies.

In my paper on Distributed Intellectual Property Rights I provide a list of benefits for collective members and examples of how the advantages of collective 'ownership' of an intellectual property can be extended, even to the extent of providing commercial incentives to the group as a whole. All of which would benefit the author and promote creative effort.