Whose Line Is It Anyway?

In a previous incarnation I was an IT policy adviser looking at the impact of new technologies on higher education. One of the less-exciting things about this was getting bogged down in issues of copyright and intellectual property, when so many other important issues needed attention. It was understandable, though. Universities are enormous consumers as well as producers of intellectual property, and their copyright costs and licences add up to many millions of dollars. Not only that, the digital era brings a long list of new issues and quandaries, some of which Australia's federal government has attempted to address in its changes to the Copyright Act, which come into effect on Sunday.

Underlying some of these changes is the premise that with the creation of a whole new medium intellectual property has now increased in value. Since there is now an extra means of delivering content, the logic goes, consumers should pay extra for it. Universities are, understandably, not thrilled by this prospect, while publishers are adamant about it.

It's a seemingly reasonable premise—but I believe a wrong one. Intellectual property is not worth more today than it was a hundred years ago; it's worth less, for the simple reason that there is now so much more of it around.

One hundred, two hundred or three hundred years ago, books and writers were relatively scarce commodities, because people were—at least from the vantage point of a world of six billion. Shakespeare was a great playwright, but it's not like he had a lot of competition in his day—whereas now every second waiter in Lygon Street has an unpublished novel in his or her bottom drawer.

There's a lot of intellectual property being produced out there, but because of the unique features of this commodity its market hasn't scaled in quite the same way. For every banana grown or t-shirt made there can be only one consumer. For every novel there can be thousands.

Populations have grown, but the number of creative works that can capture their collective imagination has not—or at least, not as much. Yes, there are more works being produced, but only relatively few can attract public attention, whether that public is two million or two hundred million.

As a result, the rewards for the lucky few who do catch our attention are much greater than they once were: look at Stephen King or John Grisham. The odds of doing so are also that much smaller.

When publishers (and the parallel film and music industries) talk about protecting intellectual property, then, they mostly mean protecting the big names—the few best-sellers who drive their profits. The little names are worth less and less to them, to the point where trying to get a first novel published is like entering a lottery; your manuscript has little chance even of being pulled out of the slush pile, let alone of being read and published.

Publishers can only make a reasonable return on insignificant authors by selling their work en masse, which is why academic publishers are now turning to selling licences for all their journal content at once. The easiest way (really the only feasible way) to deliver that collective content is electronically—which is why so much is at stake for them in protecting digital rights.

But here is where the paradoxes start to emerge, breed, and spawn a whole new race of giant planet-eating mutant paradoxes. Publishers feel they need to get an extra return from digital content—both as compensation for the risk that their best-sellers will be ripped off once they're online, and as a form of funding for making the expensive transition to digital delivery. But consumers can quite reasonably feel that digital content is worth less than print: it's more ephemeral, there's so much of it around that alternatives to any particular work are plentiful, and they don't even get a physical product to embody and store their investment.

Artists of all kinds seem to be caught somewhere in the middle. As the whole Napster phenomenon has shown, even some of the biggest support an open approach to intellectual property, while even some of the smallest are more concerned about technology's potential to threaten their (presumably meagre) income than its potential to publicise their work and bring them new fans.

Publishing and other entertainment and media industries are transforming from industries that produce goods into industries that provide services, and like any period of transition it's a perplexing time for all concerned. But today's intellectual-property problems are the least of it. At least they concern the rights of individual artists and individual copyright owners (even if they aren't one and the same). What happens when work is created by a collective?

The internet is already full of sites that are effectively collective works, of which MetaFilter is a fine example. Posters to MeFi retain their copyright (the foot of each page proclaims that 'All posts are © their original authors'), but grant an implied right to MetaFilter and thus its creator, Matt Haughey, to publish their posts on the site. Kuro5hin.org, a comparable site, explicitly states as much. So far so good.

A MeFi thread, however, is more than the sum of its parts; every post is part of a bigger discussion. Who owns the intellectual property inherent in the discussion, as opposed to the individual comments that comprise it? The proprietor? The community taking part in the discussion? Jointly, or in one-percent slices?

These more difficult questions lie dormant while a community weblog or bulletin board site remains stable and the community that posts to it has some continuity. But sites don't always remain stable. What happens if Matt Haughey can no longer maintain MetaFilter, and hands the operation over to someone else? What if that someone else changes it enough to alienate its original community? Would someone from the 'true MeFi faith' be justified in taking a copy of the original site and hosting it in competition with its perceived usurper, just as kings once did with royal courts?

While these are hypothetical questions for MeFi, we're currently seeing something similar happen in the world of Usenet. Millions of posts made by millions of individuals in one particular forum (newsgroups) were a few years ago repurposed by a company, Deja, and used in a different forum (their website). While this should have raised some intellectual property alarm-bells, the usefulness of the resulting site to the wider community and the fact that it was free to use kept them relatively quiet. But now another company has bought Deja's 'property' and repurposed it in a way that is considered less useful by some of the Deja-using community. Some are already asking: Can they do that? Should they do that? Should they profit? Can we stop them? Who owns this stuff, anyway?

Such questions will occur more and more, because if anything is the essence of the internet it's the medium's collective character. That makes it fertile ground for new forms of creative work that will bring into question the very concept of intellectual property and whether it is an encouragement or a hindrance to making money out of making art.

We've always had collaborative works of art and entertainment—plays, architecture, film—but never on the scale made possible by the net. Only movies and famous buildings come close, and they prompt similar questions: whose movie is Casablanca? Who 'owns' Chartres Cathedral? The difference is that in the past only the very rich could afford to fund such collective works of art. In practice, that usually meant companies or collective organisations, which diffused and defused the potential for arguments about intellectual property.

But anyone with modest resources and the necessary skills can build and host a website. Any one—any individual—can potentially create an online community, and with it a collective work, on their very own PC—which blows the whole issue wide open again. Should individuals retain rights in collective work and be allowed to profit by them? And if so, how?

Just as the telephone and the television transformed economies and cultures in the twentieth century, the internet will in the twenty-first: not simply because it allows us to telecommute between time-zones, but because it makes new forms of creativity suddenly possible. Like artists throughout the ages, internet artists will seek to make a living from their work, which makes dealing with intellectual property issues a priority. The way we do so will fundamentally affect the development of twenty-first century capitalism and art.

First published in The Week Link, 28 February 2001.