I have contrarian ideas on intellectual property. I’ve come to think that the natural home of ideas is in the commons, that they should not be “owned” for very long. My perspective is neither widespread, nor part of current law, nor have I seen it articulated elsewhere, but I think it might be a better alternative, so I am presenting it here.

The default metaphor for intellectual property in modern times is “ownership.” In this model of ownership, all ideas, stories, inventions, characters, product names, techniques are understood to be inherently born as the property of their creator. These thoughts-made-real are seen to be owned by the mind that births them. You think them, you own them. With this status of ownership, intangible creations such as a novel, a musical melody, a plot, a phrase, formula, etc — all things created by a mind — are given a monopoly of rights in order to encourage further creations by the same creator. And to spur others to create.  This lawful monopoly — such as copyright, patents, trademarks — protects the creation from being used by others for gain. By current law, this inherent monopolistic ownership is held strongly for long periods of time, ranging from decades to a century, depending on the conceptual type (patents may be 17 years while copyright may exceed lifetimes). This awarded monopoly has a few exceptions for very limited special cases, such as “fair use” and public domain. In these modes anyone can fairly use the invention for their own purposes. Certain restrictions may apply, like if the use might need to be for education, or for parody, or so used in a transformative way, or bettered by the use. These exceptions were to be kept to an absolute minimum in order to maximize the monopoly of the hard working creator. This framing plays into both the modern idea of ownership as the sacred foundation of wealth and prosperity, but it also plays into the idea of creator as a hero, or at least as the bedrock of progress.

I believe this arrangement is misguided. The whole framework should be inverted. Public domain and fair use should be the default, and an IP monopoly should be the exception.

We have tons of evidence today that independent simultaneous invention is the norm for ideas in science and technology and even to a surprising extent in literature and art. Most technical things, often even artistic things, are invented by more than one person, at the same time, independently. In other words if X did not create it, Y will soon afterwards, if he/she has not already invented it before. Further, we now know almost all “new” things are recombinations of old things (a new book is a recombination of pre-existing dictionary words), and even the most inventive creative work is still mostly older ideas, concepts, patterns borrowed from others. Breakthrough ideas are usually made with the addition of one small idea to a mountain of other, older ideas. In that way ideas are really ecosystems. Ideas can not stand alone; they depend on other ideas for their force. Of course there can be a gem of a really original idea in a work but it is deeply entangled in a deep web of old patterns. More importantly, we have a mistakenly romantic notion of how those crucial key ideas arrive. The popular notion is the hero creates the key idea with immense struggle alone, and if it were not for them, this greatness  would otherwise never appear. We tend to believe that Einstein’s, or Picasso’s, or Tolkien’s ideas or patterns would have only come to them, but that is incorrect. The evidence shows otherwise (read a good biography), which is why today every single creation (either artistic, technical, or scientific) that becomes super successful will be sued by others who claim to have invented, discovered, or created something similar at the same time or before. The more our modern world gets connected in real time, the more visible this multiple creation becomes. People have the same great idea at the same time.  And increasingly more people are having the same idea at the same time. That is because the ideas arise from our common wealth.

It is in the commons that ideas blossom. When scientific discoveries are shared, they can be accelerated. When the blueprints of inventions are shared (and not hidden) new inventions spring up faster. Walt Disney made his fortune by reworking public domain fairy tales. Because the stories were already in the commons, he was able to re-interpret them into modern forms. As many others also did. In recent years, Disney has begun to create new fairy tales, but they are not shared in the commons. Even after the death of Disney, when he can no longer be incentivized, his stories are given a monopoly. The maximum gain to society would come if those stories, too, were returned into the public domain commons. But ironically Disney has been the chief force in preventing copyrights in the US to return to the commons.

Rather than concede there are multiple origins, our current system rewards the first person who claims to be the first. But the ownership we bestow on the first to claim originality it is rather arbitrary, although it does indeed spur more effort.  A better way of accounting is to admit that all ideas and intellectual goodness is actually born from the commons and into the commons, from the pool of all that is known. That is, ideas arise from the commonwealth of all knowledge and current ideas. Without this commonwealth of knowledge, there would be no new ideas. However, if no one is rewarded for working on bringing new ideas to life, then far few would try. So even though the reward for originality is arbitrary, it is still useful. My proposal then is that we continue to award monopolies briefly on those who claim first rights (while acknowledging it is basically arbitrary). So for a brief period of time we remove this idea from the commons and bestow a monopoly upon it. The “owner” has exclusive rights for that monopoly period. But as soon as possible it is returned to the commons where great things can happen. A novel thing is born from the commons, and it is returned to the commons as soon as possible. In the meantime to encourage future creation we give it a temporarily limited monopoly. In my model, the natural home of intangibles is in the commons, as a default.

For best results for society, this monopoly should be as minimal as possible in its duration and privileges. “Soon as possible” is the key phrase. No IP should last a century, no matter what. In our fast-moving world, 20 years of protection is more than enough for most ideas. Another step is to emphasize the rights of monopolies should have corresponding duties. Those duties might include publication, dissemination, education, APIs, platform tools, or many other tools that would facilitate its use when it returns to the commons.

The books I have written are created from words invented by others, filled with ideas created by others. Even the few new ideas that are new depend on older ideas to work. What I had to say would probably be said by someone else not long after me. (More probably there have already been said by someone I was not aware of.) I may be the lucky person to claim those rare new ideas, but the worth of my art primarily resides in the great accumulation of the ideas and works of thousands of writers and thinkers before me — what I call the commons. My work was born in the commons, it gets its value by being deeply connected to the commons, and after my brief stewardship of those tiny new bits, it should return to the commons as fast as possible, in as many ways as possible.

That may strike others as romantic as the heroic stance. What happens in the details? We can imagine a very short half life of protection for ideas in patents and science, but it is harder to imagine for characters and stories in literature. They seem more like children than inventions. Would we want Harry Potter to be returned to the commons before JK Rowling died? Is that just cruel? So we already have a different time scale for copyrights vs patents (but of course I think the current Lifetime Plus scale for US copyright is ludicrous and bonkers). But if we were guided by this inverted perspective we would be doing as many things as possible to widen the common use, to make fair use the default stance, to assume that intangibles should start in the commonwealth and return to it as soon as possible. Use of snippets, copies in transit, sampling, remixing, gray areas, would all be seen as natural, and the default. Creators would borrow easily, make generously, and we would minimize the benefits of illusionary sole proprietorship.

This illusion, BTW, reigns not just in the arts, but throughout American culture, especially in the business world, where narrative of the lone American genius battling the entrenched biases of the establishment and breaking through with his personal heroic “aha” moment is the set storyline. If you add a layer of politics, then the lone hero is battling the socialistic tendencies weighing down the masses with victimhood, and then we have the story of this decade. I am under no illusion myself that my communitarian perspective of ideas as being born from the commons, not from heroic individuals, and returning to the commons widely as fast as possible, will be adopted voluntarily. But like the initial resistance to accepting that copies want to flow freely (another communistic tendency), these resistances in the end are overwhelmed by the inherent biases in technology. See the music industry, which fought against streaming for decades before succumbing to the inevitable.

Ideas want to be shared. Sharing is baked into their nature. They don’t want to be owned, since ownership diminishes their usefulness. In the end, ideas will move in the direction of maximum sharing regardless of what the law says. And over time the law will codify what technology wants.