While everyone has been going bananas over Web 2.0 (is it a bubble? is it a technology? is it a mindset?), a rather important suite of alterations to national and international intellectual property law have emerged. In this new conception of intellectual property, IP 2.0, ideas in physical form take on a nature far more powerful than regular run of the mill property.

A copy is no longer a copy. This is perhaps the most significant settlement taking place, in my opinion. This premise that intellectual property, when fixed to a media, is a copy – yet not really a copy. For example, in this emerging IP 2.0 world: (1) we don’t own the music- we never did (2) we don’t enjoy ownership rights of the copy (3) we don’t own a license to the underlying property (4) certain actors can lay claim to new copies (5) Those rights you do possess may be coded away from you. While some might disagree with these five points, let me argue the case.

(1) We don’t own the IP. This issue isn’t new and has always been the case. When you buy music, movies, even games you don’t own the underlying work. You get a supposed copy (which is truthfully indistinguishable from the supposed original), which you supposedly are free to use.

(2) We don’t own the copy. This is a noticeable shift. While it used to be the case that we could re-sell media we purchased (a consequent of first sale doctrine), this right is being carefully eroded away. The copy you purchase isn’t really purchased. Instead, what you have is a type of license, far different from other licenses we might own.

(3) You don’t own a license to the underlying work. Here is where the “now a copy, now its not” methodology completes its form. While what you purchased is no longer a copy you “own” and might resell, you also have no claim to continued access to the represented work, should you lose, break, or even move your version. You have a very special license that is your right to access the particular version imprinted on only particular, and approved media (CD, hard drive, etc). This third issue hasn’t taken on full form quite yet, but its seedy undertones can be heard in debates over fair use, time-shifting, personal copies, and even personal media servers.

(4) Certain actors can lay claim to new copies, the right of fixation. This is the trickiest shift of them all, courtesy the recent WIPO negotiations brought on by the blurring of national borders and the threats to broadcasting rights that are the internet (and upcoming wireless networks) and digital recorders (aka, hard drives). In point four, certain actors (those who “broadcast” media) can lay claim to rights surrounding the transmitted work. Its uncertain whether the consumer can forget time shifting since the broadcaster would own the right to “fix” such a transmission onto any media. This right is pretty special since techincally a copyright doesn’t exist until an idea is “fixed” to some media (paper, vinyl, CD, hard drive, etc).

(5) Those rights you do possess may be coded away from you. This final shift closes any gaps in points 1 through 4, by preventing you from circumventing protections placed onto media by claimed rightsholders. As such, if you do possess the right to use the purchased work in certain, even derivative ways, you cannot get to that right from here.
Combine these four, and you have what extensibly is a powerful shift in the potential of intellectual property. IP 2.0 is being permitted to take on a form far more imposing than real property, and more imposing than traditional relationships with intellectual property. Essentially, these rightsholders would be granted rather extensive monopolies over their products – including not only sale but also all forms of use.

Imagine a license to a patent if the patent could only be served from a single compact disc. Or the purchase of a house you cannot resell. Or rebroadcasting the comments of the president, for public comment, waiting to find out which network will sue you.

In the IP 2.0 shift, our relationship with recorded media isn’t even on par with that of a rental agreement. Instead, the relationship with media is fully conditional.

If I sell you a car, you cannot lend it or sell it. You could not take a picture of it for resale, since I own the design of the car. You cannot modify the car, since you ultimatley own no rights within the car. You cannot switch your car with that of your friend, even if they are identical models, since yours is not yours and his is not his. You cannot speed, since I have designed the car as such. You cannot crack the protection on the accelerator, since “cracking” the protections I place on the vehicle would also be illegal.

We are slowly converting intellectual property to something more than real property, not equivalent. While everyone is chasing the gold in Web 2.0, they might want to keep their eye on IP 2.0.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s