Instead of directly addressing Brent's paper and the exchange, I shall briefly develop an alternative view, according to which copyright or other property rights are relatively unimportant. In my view, publicly giving credit to authors for original ideas is much more important, and it can also help to ensure long-term compensation for authors even in the case of electronic dissemination of works. Hence I am optimistic that electronic media can flourish, whether or not capitalism and concerns about personal reward remain part of the dominant world economic system.
For example, note that one cannot steal or destroy intellectual ownership of an idea, however much one tries to appropriate it as one's own or meld it with other material. Nor could this "ownership" or priority be transferred or sold to others. Of course, in specific cases it may become unclear who originated an idea, and credit or acknowledgement may wrongly be given to various borrowers or secondary sources for an idea. But intellectual priority with respect to an idea is a historical fact which cannot itself be stolen or misappropriated.
Another reason why 'priority' is a more appropriate term than 'ownership' here is that there is clearly a sense in which any ideas whatsoever are owned (or, if one prefers, not owned at all) by all thinking beings capable of critically considering them. Any thinkable ideas are part of our intellectual heritage. We "own" them by participating in the culture of which they are a part. A more specific sense of ownership along these lines is that in which one owns an idea, or makes it one's own, by efforts to understand or master it. In these senses too, ideas cannot be stolen or misappropriated, and no rights are violated by sharing them.
Returning to the main topic of intellectual priority, what should our social attitudes be toward it? Broadly, we should give people credit or acknowledgement for initiating ideas. But it is a mistake to equate such credit with an ineffectual, minor social politeness or etiquette (see later).
How should we reward or compensate intellectual priority? One reason why there is a strong tendency to confuse intellectual "ownership" of an idea with legal ownership is that it is widely assumed that the only adequate reward or acknowledgement for priority consists in the granting of legal property rights, such as copyright, to the originator of an idea (or more specifically, to an idea as expressed in a definite linguistic way). [line 139]
This is indeed one reasonable way of rewarding conceptual innovators, but it is not the only defensible one. We should not forget that most people work for corporations, under legal agreements such that any ideas originated in the workplace by an employee automatically become the property of their employers. This system is defensible insofar as employees are adequately compensated for their efforts.
Current copyright law (at least in the U.S.) further encourages the confusion of intellectual priority and property rights, because simply by authoring a manuscript one automatically acquires copyright or legal property rights in it, in the absence of prior agreements with employers, etc. (In the U.S., registering such a copyright does not create it, but merely provides evidence which would make it easier to legally defend the copyright later if necessary.)
However, it remains important to distinguish priority and property even in such cases of very close legal connection between authorship and property rights. For if we examine the actual workings of our capitalist commercial system for distributing or publishing original manuscripts, it becomes clear that copyright or ownership plays only a minor (and somewhat paradoxical) role in the actual ways in which private authors are compensated for their original work.
One might expect that the normal or standard case of compensation in the current system would be that in which the author as owner of the copyright receives payment for giving permission for others to read or otherwise use her work. But in actual fact, cases where an author publishes his own work under his own copyright are relatively rare and inconsequential.
Instead, the almost universal actual model is one in which authors engage in a contract with a commercial publisher, in which the author unconditionally assigns or entirely gives up her copyright to the publisher in exchange for certain benefits or compensations. A main reason for this practice is that with traditional media, the costs of publishing and distributing are so high that contracting with independent publishers becomes almost a necessity for authors. But then the "pound of flesh" of having to give up one's legal ownership rights almost inevitably ensues. In such cases we must distinguish between an author's originality and her copyright ownership, because of course when her work is being distributed she no longer owns the copyright, in spite of the originality of her work. [line 218]
Because of this confusion or misconception, the whole issue of whether electronic media involve threats to individual property rights is misconceived from the start. Paradoxically, it is only such innovative media which potentially could make widespread, inexpensive distribution of manuscripts feasible while yet maintaining individual copyrights. Thus there are initial grounds for hoping that electronic media might provide the last, best hope of preserving private property rights in manuscripts against the authoritarian rule of corporate publishing.
However, things are more complex still because of another aspect of copyrights, namely that as legal rights they may need to be asserted and defended. These issues are particularly intractable in the case of a journal or other compilation which may accept manuscripts from several authors simultaneously. How are these individual copyrights to be protected in the case of copyright infringements? No journal could afford to separately defend each of its individual authors in the courts against such threats, and almost certainly the individuals couldn't afford it either.
Thus here we have another main reason why publishers require copyright assignment from their authors, and in this case it applies just as much to electronic publishing as to more traditional media. As long as our legal systems require traditional judges, courtrooms and lawyers, all publishing which involves protection of copyrights will have essentially the same basic legal problems, whatever the publication medium.
2. Defending Priority and Providing Compensation, Independently of Ownership Issues.
The upshot of the previous discussion is that intellectual priority and legal ownership rights must be distinguished, and that even in the present commercial system, issues of financial compensation for authors are largely independent of property rights issues. Here are some further points suggesting more positively that, as long as authors get credit for their work, and some reasonable compensation for it (even if indirectly), issues about legal ownership can safely be put aside as merely secondary or peripheral issues. [line 261]
To begin with, a useful concept for the purposes of the present discussion is that of deferred or indirect compensation. Compensation is deferred if it is not a direct or immediate benefit of an activity, but instead occurs only as an indirect or later consequence of the activity. However, in terms of an author's long-term 'bottom line', deferred compensation can provide just as much money in the bank as could direct compensation.
In view of this possibility, even if there is no direct or immediate financial compensation for authoring and distributing a manuscript in a medium, we cannot assume that therefore in the long run such dissemination is bound to be unsuccessful. Even if it is true that authors will not write or publish without compensation, as long as some form of compensation (even if highly indirect) is available, authors will continue to be motivated to write.
For example, academic authors producing scholarly papers are already very much aware that most academic journals pay no fees to authors. Neverthess, because there is an indirect but very powerful link between publishing credits and future or continuing academic pay raises, promotion, and employment, such publishing does virtually guarantee substantial deferred compensation to an author.
Such kinds of case are already more common than is generally realized. An otherwise very different example is provided by various collaborative commercial authorship cases. For example, a copywriter for an advertising agency is admittedly paid for what she does, but if she has some strikingly original idea she is unlikely to see any immediate increase in her compensation because of it. However, in the future she is likely to get to work on more prestigious accounts, get increased pay raises and promotions, etc., because her employers give her credit for the originality of her earlier ideas. Here too it would be a mistake to concentrate exclusively on immediate compensation for authorship. For in commercial as well as academic settings, building a 'track record' of original achievements, which give good prospects for future or indirect compensation, is extremely important to authors. [line 303]
Next we should ask, where does credit for intellectual priority or originality come into the picture? In my view, the recognition and acknowledgement of intellectual or conceptual priority is not merely a minor matter of etiquette or politeness from one author to another. Instead, it should be seen in the broader context of an author's reputation, success and long-term financial compensation. Whether in academic or other contexts, a writer's influence and earning power depends on recognition by his peers of his original contributions. The acknowledgement or crediting of an author with an idea is an essential part of building that social recognition, and hence it is much more important to success as an author than copyright or other ownership rights could ever be.
In conclusion then, provided we give adequate credit and acknowledgement to authors for their original contributions, generally they will in one way or another receive adequate compensation for their efforts. And since these points apply just as much to electronic media as to more traditional kinds, we can justifiably be optimistic about their long-term viability as vehicles for the encouragement and dissemination of knowledge.
John B. Dilworth
Department of Philosophy
Western Michigan University, U.S.A.
Dilworth@gw.wmich.edu
[ This essay in Volume 1 Number 3-2 of _EJournal_ (September, 1992) is
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