How does the DIPR proposal address today’s copyright issues?

In this section I discuss the many issues and concerns involving the copyright process today and analyze how the Distributed Intellectual Property Right (DIPR) system, proposed here, might address some of these issues. First, how does the protection of intellectual property in the DIPR system compare to the protection afforded under traditional copyright? (I have another discussion of rights, copyright, and the DIPR system in 'Rights in Copyright')

Distributed intellectual Property Rights v. Copyright

Copyright protects the expression of an idea or concept not the idea itself and this feature of copyright protection is not changed in the DIPR system. The significant difference between Copyright and DIPR is that Copyright only regulates physical copies while DIPR regulates the expression of the work in both the intangible and tangible form. Now I analyze how this change affects various areas of the copyright regime.

Exclusive right to copy

Copyright grants the rights holder the exclusive right to copy the physical component of the intellectual product. The DIPR system grants the rights holder the exclusive right to authorise others to copy an identified physical manifestation.

‘Fixing’

The intellectual creative work has to be ‘fixed’ in tangible (physical) form before copyright is granted. In the DIPR system the intellectual work is fixed when it is first registered in an Author Rights Office.

Publication

Fixing the intellectual product in the author rights office is not necessarily publishing the product. The product will only be publicly available once it is available to the rest of the DIPR environment but once this is the case it will fulfil three important characteristics of publication – It will be public, it will be irrevocable, and provides fixed copy. Again, it is the registration in the author rights office that secures these features that are not always available to current digital products. [23]

Archiving

The author rights office registration of the product will fulfil the important social function of providing a permanent public archive.

‘First sale’

Under copyright a consumer may sell-on or lend their physical copy of the intellectual product. Under the DIPR system the consumer may not sell or trade in any way their copy of the intellectual product. They could obtain special rights from the primary rights holder to do so but that is a different matter. Others have argued that the first sale rule has already been undermined in the digital age:

“The problem affects policy makers, because the traditional first-sale rule of copyright, an important element of public policy, is undermined by information in digital form. That rule works in the world of physical artefacts because they are not easily reproduced by individuals and are not accessible to multiple, distant viewers. But neither of these limitations holds for digital works. Consumers are affected as well, because access is accomplished by copying, and in the digital world copyright's traditional control of copying would mean control of access as well.”

As I see it, the first sale rule under traditional copyright achieved two purposes – it guarded the right of an individual to trade a physical object they owned (the book) and it assisted the cause of providing ‘common rights’, to the intellectual work, for society as a whole. Under DIPR system there is no physical object to trade! The consumer only owns rights-of-access to an intangible intellectual component of an intellectual product. The physical digital manifestations of the product are only a means of transporting the intellectual component from one person to another. (As discussed above these digital manifestations tend to have intangible qualities anyway).

Nor will the consumer be allowed to sell, trade, or pass-on their unique identification to an intellectual product; it is theirs for eternity. To be fair, neither will the primary rights holder be allowed to relinquish their unique identification to the product. If the rights holder sells their primary right to another rights holder, say a publisher, a new rights identification will be created.

As for protecting the common right access to the product the DIPR system has no problems achieving this even if the rights holder is the only one given the right to sell copies of the intellectual work. Any identified consumer may ‘lend’ (i.e. provide temporary access without receiving any reward) a copy of the intellectual component to anyone else. In the digital age it would only need one philanthropist or public body that is prepared to lend the product to anyone with a social need and it would fulfil this common right of access. It should be noted that the lender would not be allowed to charge even marginal reproduction costs when they lend the product.

The social pact

What is the status of the social pact between society and creators in the DIPR system? The aim of this pact is to encourage the creation and dissemination of information for the ultimate benefit for society.

As described in the ‘first sale’ section above the common rights of society are upheld and even improved in the DIPR environment and, in addition, there will be no need for encrypting or other protection mechanisms that hamper access to the intellectual products. The protection of common rights under the DIPR system would be of major benefit to the poor and developing countries. John Barton [25] , a law professor at Stanford University, wants to see both rich and poor countries start thinking of IPR more as a development tool, and for them to reconsider the notion that strongly protecting the rights of inventors is automatically good for all.

To earn this benefit all members of society will be obliged, both morally and legally, not to compromise the system by removing product identifiers. A major advantage of the DIPR system is that there is no benefit in removing the identifiers as there is no penalty to using an identified product in comparison to an unidentified one. (In a separate analysis of digital products as memes in an evolutionary system I show how the DIPR system imposes few penalties on identified products compared to unidentified products.)

In return, creators will be provided with the following benefits:

•       A permanent public record of their work in the form of the author rights office registration.
•       All physical copies of their work will be identified as originating with them by the PRD identifiers.
•       This permanent identification will always allow trade between consumers and creators and help reduce illegal trading of the product that harms both creator and consumer. (I discuss this process below).

‘Fair use’ / ‘Fair dealing’

Fair use or fair dealing, as opposed to the unregulated, common right, to absorb the intellectual component, means being able to reproduce a physical portion of the intellectual product in the course of activities such as research, studies or reviewing the product.

Under the DIPR system, for the consumer who has bought an identified right to the product, fair use is built into the system as they are allowed to reproduce the product as long as its identifications remain intact. There are rules for reproducing a portion of a product.

For the consumer exerting his or her common rights to a product not registered to them the situation is more complicated. Under the DIPR system they have no right to do anything with the physical component but should they not still be allowed to quote or reproduce limited sections in the name of fair use? What it comes down to is that both the primary rights holder and the identified consumer of that particular manifestation have to ‘donate’ fair use rights to this third party. It can be argued that the rights holder is already obliged to give these fair use rights under current copyright conventions but should the identified consumer, who bought the product, be under the same obligation? Maybe the fact that they lend the product to someone means that they also donate fair use rights. A solution might be that a third party claiming fair use has to identify themselves in the DIPR environment so that they can be held accountable for using the product fairly.

Pirate copies are the next issue.