About Intellectual Property with a Cold Head. Part 2

    This is a continuation of the article “On Intellectual Property with a Cold Head”. Here is a link to the first part . In the second part, I want to imagine what a system of intellectual property regulation could look like if you create it from scratch, taking into account new opportunities and new threats that have emerged thanks to widespread computerization and the Internet.

    An optimal solution would combine the best features of the intellectual property protection regimes listed in the first part, while minimizing their disadvantages. In addition, I want, as far as possible, to reduce the number of entities and build a single foundation for all types of intellectual property. Therefore, it is worth starting with things that are equally important for works of art, as well as for inventions and scientific discoveries. First of all, it is the need to reliably and reliably register authorship and priority. Nobody needs plagiarism and “bicycles”. Then you need to provide a mechanism that allows authors to earn a living, but at the same time does not infringe on the freedom of speech and creativity and does not create insurmountable obstacles to consumption. Let's start with the registration of intellectual property.

    Distributed databases and cryptography.

    A system capable of automatically, cheaply and reliably registering the fact of publication of any information has been operating on the Internet for several years. Moreover, the information in it has great financial value, which means that attempts to crack it must have been made serious. This system is called Bitcoin . In a nutshell: Bitcoin is a fully decentralized payment system. Technically, it is a distributed database containing information on financial transactions. Using cryptography, the uniqueness and authenticity of each transaction is verified. With the same success, such a system can store any information in general.

    And by the way, already stores. Namecoin network created on the basis of Bitcoin, which serves to register domain names, which, along with logos and trademarks, are a type of intellectual property. Exactly what we need. Imagine for a moment that all or almost all people and organizations engaged in intellectual work - from a simple blogger to the Academy of Sciences, will install nodes of such a network on their servers. Any draft, any publication, any idea, any finished work can be added to this database within a few minutes. To keep the database compact, you can pack the work or description into a separate file, and store a link to it and a cryptographic hash in the database.

    Cryptography provides almost limitless possibilities - do you want to declare your priority, but keep the development a secret for the time being? No problems! Publish the encrypted and signed file, and when necessary, present the key. Or even leave the file with you - the hash will confirm its authenticity in the future.

    Such a distributed database is much better than all existing solutions. Copyrights arise, de jure, automatically. De facto, to protect rights, official, state registration or dubious tricks like sending yourself a registered letter with a copy of a work can be very useful. A bunch of extra gestures. Registration of a trademark, filing an application for an invention is usually a rather expensive and bureaucratic process. Publication in a scientific journal is also a complicated matter.

    We add here the already existing and long-running means of searching for plagiarism and identifying video and audio fragments, such as those that are on YouTube, and we will connect the accounts of network members with real details and personal data - the foundation for the global automatic system for registering intellectual property rights is ready.

    Of course, automatic protection against plagiarism is imperfect. She may mistakenly block the publication of completely original things, and this is absolutely unacceptable. Lots of absurd exampleswas on the same YouTube. So it should be auxiliary in nature and serve only for search and recommendations. And this leads to the opposite problem. If an honest inventor finds an earlier solution to the same problem in the database in the same way - he will just be upset, and then he will do something else. If an honest author discovers that the genius poem that came to his mind was actually written a hundred years ago and just sat in the subconscious (Such a blow from the side of the classic!) - he will do the same. But the crook and conscious plagiarist - no.

    In addition to protection against plagiarism, a mechanism is also necessary for separating valuable information from nonsense. We can afford to register everything in a row, but you cannot protect everything in a row. All the submitted manuscripts are not published in the prestigious scientific journal, far from all patents are examined, and not every author manages to sign a profitable contract with the publisher. Fortunately, a solution to the dropout problem also already exists.


    The peer review system established in science is nothing but crowdsourcing. Ratings of the popularity of films or music - he is. Finally, the entire Open Source community is built entirely on crowdsourcing. Perhaps, it is the open-source development culture that can serve as a role model in all areas of intellectual activity. The technological base for developing free products is open repositories, functionally equivalent to the distributed database described above for registering the fruits of intellectual labor. Just one look at the schedule of commit activity, the number of forks and subscribers, and the profiles of key developers is enough to form a fairly reliable opinion about the quality of the project.

    In the Open Source world, a system has spontaneously and naturally developed that effectively performs the functions of peer review, patent examination and popularity ratings at the same time. Imagine a kind of “global github” that stores not only source codes and technical documentation, but also draft books and scientific articles, film scripts and music tracks where you can fork a movie or send a pull request with new experimental data confirming or refuting the theory.

    Naturally, such a global intelligent repository should not and cannot be a single site or portal. It should be a network of independent nodes, united by open protocols and data formats. The creation of such a network is quite feasible from a technical point of view. But, unfortunately, it is not yet possible legally. Without mechanisms to protect the interests of authors, such a network will always be the lot of enthusiasts and volunteers. A very large part of the authors and inventors simply do not dare to “open source” without significant legal guarantees of remuneration.

    To give them, you need two things: a way to get rewards from the end user and a way to redistribute this reward between everyone who contributed to the creation of the product. The current practice of reward is coercion and intimidation. You can’t just take it for free. They may even be put in jail for this. Redistribution takes place in more diverse ways: this is direct coercion through lawsuits, and voluntary-compulsory licensing, and fairly free contracts and contracts between participants in the process that determine, for example, the fees of movie actors.

    In all cases, legal mechanisms are involved, which are probably good for large businesses, when each company has a whole legal department, but is almost unacceptable for small and independent participants. A business built on intellectual property plays the role of a “roof”, which protects authors from encroachments by unscrupulous competitors and takes a huge percentage for it, because it is impossible to survive without the services of this same “roof”.

    Transparency and reputation

    In order to be a full-fledged member of the “global Github” and claim to receive a reward, a certain weight and influence in the community, you need to register there under a real name. Non-anonymity is an obvious and natural feature of any professional community where reputation plays an important role. Exceptions are possible only if deanonymization threatens the life and health of the author, as is the case with political or religious dissidents. And even in this case, more often it is not about anonymous, but about pseudonymous participation. A user profile that has existed for a long time and is quite active is one of the highest values ​​in such a network. Just taking and registering under a different name means losing the connections and reputation that have developed over many years.

    This leads us to a universal solution to the problem of redistribution. Any new artifact registered in the repository must contain an exhaustive list of sources on which the new work or invention is based, indicating the degree of influence of each of them. This list should be open and allowable additions and changes by the community (naturally, there should be a mechanism of protection against abuse and vandalism). If the author does not give such a list and actively resists its creation by the community, this very quickly puts a fat cross on his reputation and the ability to use the repository in the future.

    Specific criteria for the influence of works and ideas on each other is the topic of a separate big conversation. Each industry has its own traditions and assessment methods. It is here that the common base for all ends and serious differences begin between the types of intellectual property. In cinema there are generally accepted norms of fees for all members of the film crew, in science - the order in which it is customary to give the names of authors of scientific works, in industry - the legislation governing the licensing of patents and so on.

    The automated mass application of “crowd wisdom” based on these established practices will make the system much more flexible and more accurate. If today you have to choose between just a few protection modes, which are far from always ideally suited, then in such a system the terms of protection, the procedure for confirming and registering rights, and any other variables can change separately and independently, adjusting to each specific niche.

    One of the most difficult questions is the proof of the fact of the influence of one work or invention on another. Perhaps the main drawback of the modern patent system is its assumption that the same idea cannot simultaneously and independently come to different people. This shortcoming takes on the scale of natural disasters when trivial things are patented, and the solution to the problem that any competent engineer or designer can find in a few hours or days suddenly turns out to be blocked for twenty years due to the fact that someone was not too lazy to patent it.

    Part of this problem can be solved by open development, when everything is published, starting from the earliest draft, or the publication of encrypted drafts, thanks to which it can be proved that the idea came to mind before someone else published it. In other cases, it remains to rely only on the time of publication. So, if two very similar programs or scientific papers are published with an interval of a month, despite the fact that it would hardly have taken less than a year to create them, then it is possible to assume their independence. If the difference was several years, then earlier work should be a priority.

    In addition, you can introduce a mechanism for checking the non-obviousness and high level of originality of a solution, something like crowdsourcing patent examination. If the author believes that his solution is nontrivial, he can publish the condition of the problem in clear text, and the solution itself in encrypted, and make a deposit. If, within the agreed period, someone else can repeat the author’s decision or propose the best option, he will be given a deposit. If not, the author receives an additional advantage, the value of which is proportional to the value of the pledge.

    A separate issue is the regulation of relations between members of the repository and the outside world. What if someone from outside takes advantage of the fruits of other people's labor? Indeed, for example, anyone can download the source codes of any program from Github completely anonymously. What prevents the same way to download the text of the book and sell without paying a penny to the author? Or sell a device invented and published online?

    It hinders the fact that such a person or company dooms himself to marginalization. This number will be held for small fraudsters in third world countries, but any corporation with the name runs the risk of suffering significant reputation losses when the fact of theft is revealed.

    An organization that supports and regulates the work of the global repository and represents the interests of a significant number of authors, inventors and scientists, let us call it, say, the Open Intellectual Property Fund, will have great authority. Most likely, much larger than environmental and human rights organizations now have, which quite effectively force transnational corporations and entire governments to improve working conditions and take care of the environment.

    An organized global boycott of goods and services of companies that do not respect intellectual property can be worse than any fines and legislative prohibitions. Conversely, companies that honestly share profits with those to whom they owe their prosperity can receive well-deserved positive public relations, for example, in the form of the right to place a special sign on their products. And in the future, we can talk about legislative enforcement.

    Crowdfunding and positive discrimination

    Here, finally, we got to the mechanism for receiving rewards from the end user. Probably, it is worth recognizing that any attempts to strangle free copying of anything are doomed to failure. They are either ineffective or come into fundamental conflict with fundamental human rights and freedoms. The absence of piracy is possible only in a totalitarian society.

    If in the fight against scammers appropriating the results of someone else's intellectual work for profit, a whip in the form of a boycott or penalties is quite applicable and justified, then the end consumer, who downloads and reads exclusively for himself, can be forced to pay only with a gingerbread. If free access is prohibited, then the whole system of open collective creativity cannot function.

    What can make people pay? Crowdfunding and positive discrimination. Crowdfunding has already proven its worth. Just a couple of years ago, this word didn’t tell anyone anything, but today you won’t surprise anyone with a project that raises a million dollars in a few days. Perhaps on the contrary, crowdfunding is perceived too positively. As with any fashionable innovation, high expectations are associated with it. The creation of new products or works is always risky and unpredictable, and yet the information that, it turns out, not all funded projects end successfully, and a significant part of successful ones do not meet deadlines, causes almost resentment and disappointment.

    In a few years, the euphoria will pass, most rakes and boundary cases will be known and it will turn from an exotic novelty into a workhorse, generating billions for creative and enterprising people. And our “global github” will be a great help to crowdfunding, because there you can easily see who is who, and whether promises can be trusted.

    Co-financing often works much better than donations because it is not just a reward for an already done business, it is complicity, co-creation, and this is one of the first to touch something new.

    Now about positive discrimination. What is negative discrimination - everyone knows. Examples of positive discrimination are priority support for paid customers in the Freemium model, “gold” and “platinum” discount cards for large customers, membership in closed clubs. No one forces them to buy expensive smartphones and cars. But they are being bought. Demonstrative consumption may seem ridiculous and stupid, but such is the nature of man. We like to feel rich and prestigious, to be a member of communities and clubs that are not so easy to get into.

    Perhaps one of the main reasons for the ineffectiveness of propaganda by copyright advocates is that they equate free downloads with crime, creating and maintaining a romantic halo around “piracy” and pushing people away from themselves with excessive cruel punishments. Why call stealing what can be called stinginess? If there is at least some kind of romance in theft, then in stinginess and greed it cannot be in principle. The law does not prohibit rummaging in the trash or lashing out on a free treat at a party. But the vast majority of people do not behave this way. In this case, usually no one will reproach or, especially, put in prison a person who is aground, if he has to do so.

    The widespread use of positive discrimination without coercion and fines will create an atmosphere in which payment for the consumed product will be perceived as an honorable obligation, and not as a quitrent or tribute. Moreover, the rights of those who cannot pay for objective reasons will not be infringed. A poor student or resident of a third world country will have access to the exact same set of intellectual values ​​as a millionaire.

    A fan club or a professional user community will thus be formed around any intellectual property object, the position in which will be determined by the amount of money spent. It is important not to go too far so that credibility and reputation cannot be bought. Money should not come first. Positive discrimination should give tangible benefits to all those who pay at least a little, but should not allow those who do not make any contribution to the community other than money, greater privileges than active, but not wealthy participants. The dependence of the number of "buns" on the amount of money spent should be logarithmic.

    At the junction of crowdfunding and positive discrimination, the practice of returning part of the money spent to early consumers and fans, or even possible participation in the further distribution of profits, may work. The reaction of the first few thousand consumers can play a decisive role in the success of a product, so why not share with them? One of the arguments in favor of the system of publishers and labels that exists today is that they seek talent and help young authors get started.

    Encouraging early consumers will create the conditions for an alternative search and discovery system for capable authors. It is possible that the most active and insightful music or literature lovers will be able to provide for themselves by looking for unknown but promising authors and helping them get started. Such a promotion scheme looks much more natural and fair than modern "industrial" methods, when everything is decided by money.


    At one time, the invention of writing made it possible to create large states instead of primitive communities and tribes and became the foundation of modern law and science. Despite the fact that the invention of computers and the Internet has already revolutionized many areas, in law in general and in intellectual law in particular, so far, unfortunately, technologies have been used that are several thousand years old. Legal texts are full of cross-references, laws should be written as formally as possible, avoiding conflicting interpretations, which means that computerization is more than appropriate here. Computers could be used to find and resolve legal conflicts, to search for precedents, to eliminate duplication and collect statistics. Laws should be written as programs in very high level languages, and not as paper documents,

    Instead of using the opportunities that computers and the Internet provide, legislators are trying to limit them, to fit the usual restrictions of paper documents and physical objects. From the point of view of most lawyers, it seems that free copying and distribution is a bug, not a feature. And the confusion, inconsistency, and nebula of laws written on paper - on the contrary. A good lawyer is one who is able to quickly find and interpret the necessary fragments in a huge database of text. Search is definitely the work of a computer, not a person. And if we move from writing laws in a relatively free form in natural language to a more formal form, using markup understandable by a computer, then 90% of the tasks of interpreting the law can be entrusted to a computer.

    IBM Watson supercomputer is ready to help doctorsto make diagnoses. The work of the diagnostician and lawyer is very similar in many respects. Both require extensive erudition, scrupulous attentiveness and quick interpretation of huge volumes of information, life and death can envy from the actions of both. But in the field of law there is not even a hint of automation. Perhaps because it will deprive the estate of lawyers of a significant part of the government, which, by the way, would be very good. A comparison of prosperous and backward states suggests that monopolizing power in the hands of individuals or cohesive groups is evil. And in modern democratic countries, the concentration of power in the hands of one professional group — lawyers — is becoming ever stronger. The judicial branch consists of them completely. There are more lawyers in parliaments than people of all other professions combined.

    Algorithms and data structures on which self-regulating communities on the Internet are based, such as Wikipedia, Github, Habrahabr, Stack Overflow, constitute their “constitution” in no less, and maybe more than, rules and user agreements. The standards, protocols and source code of the official Bitcoin client provide acceptable stability and transparency without any laws, codes or instructions that form the basis of any traditional financial system.

    A global intellectual property repository based on open standards and protocols could solve most of the problems with copyright and patents without any formal laws at all. He would need only a little help in the form of stimulation of its use by all interested parties, and in the form of some sanctions against malicious violators. By the way, in Estonia, a country that today is one of the world leaders in creating a real electronic state, a similar distributed system is already working for the automation of almost all spheres of public life - X-Road . An excellent example of what happens if you do not mechanically transfer standard paper documents and procedures to the network, but build the system from the beginning taking into account the capabilities of computers.

    Also popular now: