Current intellectual property law is making, it seems to me now, what philsophers might call a category mistake, and here in libraries we might simply call misclassification. This sort of thing happens all the time in the history of science…it appears as if something should be classified one way, either because of explanatory power or just raw appearance. Lower organisms were thought to arise via abiogenesis, the sun moves around the earth, diseases are caused by an imbalance of humours in the body. It also happens in law…legal history is full of examples where classifications turned out to be simply wrong (primarily when it comes to women and minorities).
The reason that I make the science link is that often it is technology that allows the category error to be rectified. The microscope allowed abiogenesis to be proven false, the telescope to show that the shifting of the stars couldn’t be explained by the Earth being the center of the universe.
Broadband and ubiquitous computing, combined with the digital supply chain, will force a reexamination of copyright in much the same way that Pasteur forced a reexamination of the theory of disease. Before broadband and affordable personal computers, the supply chain of intellectual property had analog pieces…books, VHS tapes, the film at a theater. By the “digitization” of the supply chain, I mean that the chain via which media and other intellectual property is distributed is “broken” of its analog history…there is a step in which the property becomes digital, at which point our current tools (high speed networks and personal computers) tell us that what was once “property” cannot really be considered that way anymore. It’s like a microscope focusing for the first time on the eggs of the larva in leaf litter…the mystery of life is taken away from the inorganic, and moved into the realm of the biological. Computers are telling us that “intellectual property” may need this same shift to occur, that we need to take the focus off of “property” and find another label more fitting the object.