IP, Data and AI in the digital age – Part 2
Last week I pointed out that the differing ownership terms – perpetual for physical property, life of the creator + 70 years for copyright, 15 years for databases – make no sense in an economy that aims to allocate resources rationally and efficiently.
The other fundamental difference is that for copyright and database rights, there is a set of criteria (i.e. a test) which the thing in question has to pass before it becomes property. For anything physical, on the other hand, there is no set of criteria. If it’s physical, it’s property right from the start of its existence.
In future editions we will look at the standard tests (and why they don’t work), but in this Oh Lawdy! I’m going to look at the function of propertisation. Databases and would-be copyright works, if they pass the test, become property. If they fail the test, they still exist, but are not property.
Why is this relevant? Because if there is going to be a test for propertisation, then there must be a reason behind it — a reason behind deciding that X can be propertised, but Y can't.
So – imagine a farmer who grows pears. Pears are a form of property, and for years he has made a living growing and selling them.
Suddenly the law changes and pears are no longer a form of property. What happens then?
Firstly, the farmer will have to spend money on extra security while the pears are growing in the orchard – stealing pears is no longer a crime. His costs will increase. He will then need to transport his pears to a warehouse. That transportation will need security to prevent people taking his pears (technically not theft). More costs. The pears arrive at the warehouse. Again, there will need to be extra security to prevent “theft”. More costs. The pears then end up at a supermarket, which will also need more security. More costs.
So – property is a form of outsourced security.
Instead of each of us making our own security arrangements, we outsource security to the state (police, courts, etc) at a much lower cost than providing it ourselves.
30th June 2026