Marjorie Heins @ The Free Expression Project is doing a complementary study; she released her preliminary report in early October and the full report will hopefully be out soon. Her report looks at trademark as well as copyright.
For some time (years, literally) I’ve been pondering the perfect phrase to capture ‘information rights’ — the natural right people have to create, invent, tinker, think, imagine, ponder, access information, etc. The First Amendment conceptual toolkit doesn’t really measure up: we have First Amendment concepts for speaking and the corollary, listening. But these concepts don’t fully capture the rights which are restricted by intellectual property laws, government Secrets Acts, and the like.
The language I would like would be fuller, and would capture not just the First Amendment concepts of communicating, but also the right to gather information and access information about the world around you, the systems, the people, the cultural creations — the right to investigate? the right to explore? the right to acquire information? the right to learn? It’s about knowledge acquisition and communication. I want the perfect pithy, zingy, umbrella term that encompasses all these information and knowledge-based rights.
The pieces that are critical to the term, I think, are
(a) the right to create new stuff;
(b) the right to experiment with & learn about existing stuff, gathering information and exploring the world;
(c) the right to communicate information and ideas; and
(d) the right to receive information and ideas.
Or maybe these could be broken down into (a) communication (first amendment) and (b) creation (gathering existing information and manipulating it; creating knowledge, whether embodied only in the creator’s mind, or whether embodied in an invention, or embodied in a new derivative work). But this doesn’t quite get it: I worry that the concept “creation” is too subject to being cabined off by notions of originality and novelty. Also, while creation requires exploration and knowledge gathering and information access, I would ideally like to the term to capture both aspects and not privilege acts of “creation”.
Or perhaps (a) receiving information ought to be construed more broadly, to include accessing information &mash; as in FOIA requests, sunshine acts, scientific research, reverse engineering products. And (b) communicating and disseminating alone.
The two candidates I’ve toyed with have been intellectual rights and information rights.
“Intellectual Rights” is nice because it balances “intellectual property”: it suggests that “intellectual property rights” are but one subcategory of “intellectual rights”. And “intellectual” gets at the braininess of the matter: the concept should capture the essence of all its elements, which is to say, the human mind at work. But it sounds wonky and, well, in these anti-intellectual times, maybe it’s not really sellable. Also, “intellectual rights” doesn’t necessarily mean that one can gather information, about the government, say, or about the new DRM methods.
“Information Rights” is nice, but the term “information” always sounds so bland, so cheerless and un-fun. Thinking and learning and reading and talking is fun.
I want this concept, because I want a better way to balance the trade-offs of different sets of rights. Information can be free, or it can be controlled. We have many, many doctrines that aim to control or free up information: the Speech Clause and the IP Clause; trade secrets, contract law, the DMCA and DRM; FOIA and government classification and Secrets Acts; privacy and reputational harms; risks of other harms and national security; open content, open source, and open licensing. But often when I look at a particular instance, the values for controlling information are defined well, and the values for sharing the information are not. It seems that a single pithy term or phrase would help make this work more concrete.
Or maybe the “information rights” concepts are too distinct to ever be wrapped into one? Privacy, for instance, has proven to be a troubling concept; we say “privacy”, but we mean “information privacy”, “data security”, the “right to be left alone”, or even “autonomy” (e.g., reproductive rights). And privacy further breaks down on the subject: private from whom? the government? commercial enterprises? public knowledge?
Hmm. Still processing …
2005/11/28: “intellectual liberty” ???