The Need for Digital Ecology

12.05.2001

While environmental problems could actually destroy the biosphere, the over-protection of intellectual property could do the same to the "cybersphere"

As computer technology becomes a ubiquitous part of our daily lives, terms and concepts laden with references from the world of digital media are increasingly affecting social discourse. Some are useful or describe a new reality, while others are fashionable and quickly fade away. The latest to make its mark is the notion of "digital ecology".

"Digital ecology" is the medley of digital code and environmentalism. The clearest version of this theory, taking it from the abstract and putting it into the practical, is one put forward by James Boyle, a professor of law at Duke University. During the CODE (Collaboration and Ownership in the Digital Economy) conference at Cambridge, he compared the politics of intellectual property and copyright to the politics of the environment.

According to Boyle, there is need for a politics of intellectual property so as to counteract intellectual property claims which, in his view, have structural tendencies towards over-protection. What is more, intellectual property has no corresponding place in popular debate or political understanding, something which is desperately needed at this point in time.

This is where the notion of a "digital ecology" comes in. Boyle uses the environmental movement for an analogy to describe how a political economy of intellectual property can come about. He explains how the concept of "the environment" enabled different groups with different (and sometimes conflicting) interests to come together within a broad coalition. What is needed in terms of digital media, therefore, is a similar political framework in order to effectively defend "the public domain".

Naturally, this is easier said than done. An issue by itself is not enough to forge a broad coalition. A concept needs to be invented which can be popularised so as to attract support from a diverse range of groups. The history of the environmental movement is instructive here: initially, environmental activists were scattered and without mutual ties, for the concept of "the environment" didn't exist; it had to be "invented", that is, put within a political framework before it could be effectively defended. Thus, the challenge facing those wishing to preserve "the public domain" is to invent a like political framework within which a broad coalition can coalesce.

While Boyle's arguments are, according to some, simply stating the obvious, he nevertheless raises two important points which usually don't get enough attention. The first is the over-protection of intellectual property rights. The second, and in many ways the most basic, is a proper understanding of what exactly is intellectual property.

Although most people are aware that the present gold rush in the idea economy has taken the issue of intellectual property rights to extremes, Boyle makes a clear distinction between what has traditionally been understood as intellectual property rights on the one hand, and the new understanding of intellectual property rights on the other. In a nutshell, while the former is of a temporary nature and places only certain limitations on use, the latter seeks to establish absolute ownership and place a tax on use.

At for what actually constitutes intellectual property, Boyle views the present understanding of it as fundamentally flawed, for it often includes the raw materials upon which ideas are based. Raw materials can't be considered intellectual property; in fact, it's a blatant abuse of the term, for there is nothing intellectual in the physical.

This last point could have been taken a little further by Boyle. While acknowledging some of the conflicts which could arise from two different fields relying on the same raw material (e.g., electronic and genetic information employing strings of code), he stops short of mapping the slippery slope upon which the present understanding of intellectual property is precariously perched.

At the bottom of this slope, reached via reductio ad absurdum, lies the patenting of language. One can see from this how innovation and progress would have been stifled if somehow language -- all utterances and thought processes -- were protected by an absolutist copyright regime from the very beginning; in essence, there would be no, or very little, communication. Such a scenario is actually not that far-fetched: some corporations already hold copyright over the use of certain phrases.

Aside from his failure to map this slippery slope, there are some minor problems with Boyle's thesis. One is his generalised view of the concept of the environment. Although the analogy he uses may be appropriate, he overlooks some of the dynamics which facilitated the popularisation of the concept. The biosphere, upon which the environment as a concept is based, is an ultimate point of reference; "cyberspace" is not. Hence, you can live without computers and computer networks (most people may find it difficult at first); on the other hand, you can't live without clean air or fresh water.

Another has to do with dangers inherent in the popularisation of concepts. "The Environment" only started to be popularised when it became a commodity item. Although packaging and selling "the environment" may have helped to spread the concept, it also has had the following negative implications: as with basic research, serious environmental research has been sidelined or taken over by corporate interests; results and activities are often co-opted by business interests as "the environment" is treated as just another "sector"; and "the environment" has often been used as a fashion statement in order to gain some sort of advantage, be it political or economic.

Then there is the notion of a "digital ecology" itself. Inadvertently, it threatens to limit the scope of what is commonly understood to be "the public domain". The gold rush in the idea economy affects all aspects of knowledge and technical know-how, not only those related to digital media. This must be taken into account, therefore, when attempting to forge a relevant concept.

Boyle himself cites possible weak points to his arguments. Yet the points he mentions don't turn out to be weaknesses at all. In particular, his comparison of intellectual property to the politics of the environment is appropriate, and the difference in seriousness of the two problems doesn't rob the analogy of its force. While environmental problems could actually destroy the biosphere, the over-protection of intellectual property will no doubt do the same to digital media, or to be more savvy, the "cybersphere".

Boyle's diffidence at this point unfortunately extends to the reality of present-day circumstances. While he notes that over-regulated intellectual property norms can lead to extraordinary monopoly and concentration in the software industry, the further extension of intellectual property rights over living organisms and the "building blocks of life" (i.e., the human genome), the privatisation of works currently in the public domain, and the general imposition of a pay-per-view architecture of the Internet and other media, he maintains that some of these things have not yet come to pass. Even more optimistic is his view that not all of them will.

The reality of the situation is clearly otherwise. Construction of an intellectual property regime of the information economy, one which is absolute in nature and tax based in its implementation, has begun in earnest behind our backs. The potential dangers mentioned are all apparent, albeit they may differ in extent. Therefore, what Boyle projects is not simply precautionary alarmism. His conclusion that we need a political economy of intellectual property -- and that we need it now -- adequately expresses the urgency of the matter.

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