Things in Themselves: A Prolegomenon to Redefining Intellectual Property in the Nano-Age

By Koepsell, David | Journal of Information Ethics, Spring 2011 | Go to article overview

Things in Themselves: A Prolegomenon to Redefining Intellectual Property in the Nano-Age


Koepsell, David, Journal of Information Ethics


We have been confronted in the last hundred years with a rapidly changing technological environment. This environment has brought with it great wealth and prosperity, and there is no doubt that emerging concepts and applications of intellectual property (IP) have aided our scientific, technological, and economic expansion. Copyrights and patents offer monopolistic rights to authors and inventors over their creations, ensuring profits for fixed terms, and providing fortune as well as fame for the most successful inventors and authors. Monopoly rights are strong incentives to create both utilitarian and aesthetic works.

Recently, emerging technologies have challenged traditional IP theory and practice. Consider the rise of computerized phenomena, and the proliferation of software and instantaneous communications through the Internet. Software has been considered a kind of hybrid, treated both as a patentable invention and as copyrightable expressions. In my first book, The Ontology of Cyberspace, I consider how software has revealed that our distinctions between copyrightable and patentable objects are artificial and illogical. I argue that all intentionally produced, man-made objects are expressions, and that computerization has merely revealed how one expression is very much like another. More recently, I have considered the question of patenting un-modified genes. In the course of that discussion, I further criticize the application of existing IP to genomics and genetics, at least where patents have issued for unmodified genes or l ife-forms. In all of my work, I have sought to uncover the ontologies (descriptions of the objects and relations involved) of the underlying objects. I have done this believing that once we reveal the nature of things (like expressions, machines, software, and genes, as well as relations and social objects like property, ownership, and intentions) we could then sensibly sort out logical errors and inefficiencies in public policies.

We are now on the cusp of a new engineering breakthrough that will once again challenge our relation to our technological world, and likely pose new challenges to the application of traditional IP. Nanotechnology involves the construction of materials and objects at the ?nano-scale,? beginning at the molecular level. Theoretically, this will mean cheap and abundant objects of any size and shape, more-or-less instantly created, with little-to-no waste, and constructed anywhere and at any time. The science-fiction notion of simply dialing up an object and having it constructed on the spot, molecule-by-molecule, may well be decades away or further, but it is the end-goal of many who pursue nanotechnology research. Even so, we will begin facing unique challenges about the nature of intellectual property as the dividing lines between ideas and expressions further blur, and matter itself becomes programmable.

Intellectual property has become a major force economically and culturally, impelling in part our hyperbolic economic and technological growth in the past century, and influencing both cultures and economies world-wide. Historically, the emergence of intellectual property as a class of objects is relatively new. This class of objects, which includes things that are patentable, copyrightable, and trademarkable, has evolved since its inception both significantly and rapidly. Let's look briefly at the evolution, form, and purposes of intellectual property law, and then consider how and to what extent new material technologies will challenge current notions of IP.

The Emergence of Intellectual Property

Intellectual property is often mistakenly thought to protect ideas in much the same way that ordinary property law protects things. In fact, there never has been any legally-recognized protection for ideas themselves, but only for various forms of expressions. Beginning around the time of the Renaissance, in Britain and Italy, the first legally-sanctioned monopolies over inventions and works of authorship were created. …

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