Intellectual property

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Not to be confused with confidential information, intellectual property covers copyrights, patents, trade marks, property rights that arise at common law (or under statute ) which can be enforced against all comers, and not simply as as a result of any contract.

For intellectual property rights to arise there needs, as the name suggests, to be some application of someone's intellect to the creation of the information. Not all information is capable of protection: raw data, for example, isn’t.

On the distinction between copyright and confidence

The key thing is to distinguish between breach of copyright and breach of confidence. The former is an intellectual property right over the form of information; the latter a contractual right over the substance of information.

  • Breach of copyright: Copyright subsists in the particular articulation of the information, rather than in the information per se. To breach someone’s copyright is to deny a copyright owner the commercial benefit of its creation: e.g., by accessing for free something the copyright owner wants you to pay for. In other words I can’t copy Harry Potter and the Philosopher’s Stone without J.K. Rowling’s permission, but I can tell you the plot.
  • Breach of confidence: Breach of confidence is less about the form of the information and more about its substance: If I have signed a confidentiality agreement I can copy confidential information to my heart’s content, as long as I only use it within the bounds of my licence to use it. In other words, I can do what I like as long as I don’t disclose the content of that information to anyone else. Here the forbidden action is “telling you the plot”: I could do that either by giving you a full copy of the material, or telling you the plot without copying anything at all. Breach of confidence thus creates heightened compliance issues, implying as it does that the confidential information is not public, presenting risks of market abuse and insider dealing.
  • It is the substantive content and not the particular form of the information that is valuable.

Remedies for breach

Big difference here.

As a paradigm in crisis

Is AI the problem, or IP?

IP emerged as a way to allocate resources in an analogue age in which it was impractical to extract abstract “intellectual property” from its substrate. One could therefore control IP by controlling replication of the substrate. it wasn’t really a “data” problem.

The information revolution (which started with the Jacquard loom) has changed all that. IP has long struggled with sampling, remixes, digital collaboration and even packet switching[1] (the internet, on several levels, is one collossal transgression/falsification of the idea of copyright). The emergence of AI assistance in content generation is a further degeneration of the IP paradigm. It’s irretrievably broken.

In a digital universe, where you can bifurcate information from substrate, the idea of intellectual property in data is little more than unjustified state-sponsored monopoly enablement. The Rolling Stones wrote Satisfaction in 15, minutes Keith Richards literally while asleep. What justification is there for their exclusive rights to that arrangement of data in (almost) perpetuity?

Ask not how AI fits into the intellectual property rules, therefore, but how we should reimagine the legal framework for the commercial exploitation of data. Template:Ref⁵