The benefit of the information commons - part 3

In my last post, I discussed the importance of intellectual property as spur to innovation. In this installment, I talk about the importance of ideas in the public domain.

Frank Capra's "It's a Wonderful Life" is a Christmas classic, at least in the United States. I love the movie, and though I've probably seen it at least 50 times, I still enjoy watching it.

Oddly enough, the movie was not successful at the box office, and was largely forgotten for many years. That may explain why the copyright holder failed to file for its renewal in 1975. That accidental failure, however, freed TV channels across the nation to show it as many times as they wished without having to pay a licensing fee. In other words, the movie fell into the "public domain," and America rediscovered the movie, turning Frank Capra's creation into an integral part of our cultural tapestry.

Public domain media is widespread. Every one reading this blog post could publish copies of a Dickens, Poe or Twain novel, and not have to pay anything more than the cost of the raw materials and binding. The works of Mozart can be played, even altered, without having to pay money to anyone. Moby's award-winning album "Play" uses samples taken from old recordings of blues artists from the early 20th century that have entered the public domain. The DVD set containing 13 hours of "Zombie" films I picked up recently at Best Buy (all for the low low price of $6.00) consists entirely of movies in the public domain.

As the zombie example shows, not everything in the public domain may appear to be of equal cultural value. Tastes do change, however. I mentioned that "It's a Wonderful Life" was not highly regarded before it's rediscovery in the late 70s (though I doubt that "The Night Evelyn Came out of the Grave," the first film in my Zombie collection, is going to have a cultural renaissance). Likewise, you never know what one bright individual will do with something that others might consider worthless. The Chemical Brothers, a group specializing in electronic music, did some great things with a largely forgotten Kung-Fu movie to make a video for the song "Get Yourself High" that is simply music video brilliance.

Culture often reprocesses artistic expressions from the past, either creating a new slant on it, or else borrowing from it wholesale. This is why copyright is supposed to have limits. It is good for artistic creativity to become something that anyone can use, reuse, alter, resample, reedit, and integrate into new creations the original author never dreamed possible.

The same principle applies to ideas. Harry Bardal, a frequent contributor to ZDNet Talkbacks, had this to say in response to the first post in this series:

To assign strict and indefinite property rights to an idea is to claim to be the wellspring of thought itself. Every modern company stands on the shoulders of public knowledge.

I agree completely. I've discussed in the past the incremental nature of innovation. Assumed in that theory is something to increment. Knowledge is constructed like a Giza pyramid, with the individual blocks representing separate ideas. Though some stones my be newly carved, they are merely small additions to a larger structure.

It is good that RSA cryptographic algorithms are now public domain, and that no one has to pay a licensing fee for their use. It is good that the patent on the LZW algorithm has expired, making licensing risks associated with the GIF image format a non-issue. Every time a patent expires, humanity benefits as the idea is free of the proprietary fences which hinder wider use of the technology.

The interdependency of ideas means it is important that they enter the public domain. The question, of course, is when.

My past opinions have tended to fall on the anti-patent side of the debate, mostly because I'm a programmer and understand how difficult it is to avoid running afoul of them. My August, 2003 article "The patent nuclear weapon" discussed the wide-open nature of idea ownership in software, discussing how easily patents can be used to ensnare most modern software systems. My September, 2003 article "Software patents need shelter from the storm" (a strange name, admittedly) outlines why patents in software can be problematic, and advocates that Europe avoid America's approach.

I still think the problems I outlined are correct. However, I'm not so sure if it is necessary to take an either/or approach with respect to patents. Intellectual property does spur innovation. On the other hand, ideas have interdependencies in ways that ownership of physical assets don't.

Next up, an intellectual property middle ground.

See also:

Part 1: The value of intellectual property

Part 2: Why everything is information