BackOpinion | Let’s update the notion of ownership to the digital age
We may need a new framework of laws for intangibles we have access to but do not exactly own
PremiumI am old enough to remember when we actually owned things.
I remember my parents saving up to buy us the World Book of Knowledge, a physical compendium of global knowledge that was slightly more affordable at the time than the Encyclopaedia Britannica. This was our own private gateway to the world of information that we could otherwise only access by spending hours in a library. I remember having a shelf-full of books that was the envy of my classmates—so much so that entrepreneurial little me set up a little lending library to supplement my pocket money. And when I started working and could afford it, I remember putting together a small but eclectic collection of long-playing (LP) records and compact discs (CDs) that was my pride and joy.
But as digital technologies became more central to our lives, I, along with everyone else, raced to digitize everything. My books transformed into e-books; the moment the e-reader was invented was the moment I stopped adding physical books to my bookshelves. Music followed suit, and in no time my collection of CDs was replaced by high fidelity digital files that got stored in sleeker and ever more capacious digital devices that I carried around with me to listen to music on the go. As for the World Book of Knowledge, I watched it shift higher up on the shelves in my parents’ house, the white leather spines of the volumes becoming ever more decorative with the passage of time.
Digitization did nothing to the ownership I felt over digital versions of the physical objects I once possessed. I might not have been able to touch and feel the books I read or the music I now listened to, but they were still files I could point to in a folder, for me to do with whatever I so liked. Even though I knew that they were just a series of 0s and 1s arbitrarily located in a place on my computer that was skeuomorphically called a folder, I felt I possessed them in the same way as I did the now yellowing books on my bookshelf.
But despite all these attempts at cloaking digital objects with familiarity, digital ownership posed problems that could not simply be wished away. While you could read a physical book by simply opening it up to the correct page, there was no way you could read a digital book unless you had the appropriate software at hand. Without that, the files you had that contained the digital book would spit out gibberish. What’s worse, file formats kept changing, and unless you made the effort to stay updated, the files you were holding were no longer readable in the software you had to read them. The first word processor I used was called WordStar, but before I knew it, it was replaced by something called WordPerfect. I used WordPerfect for most of my years as a young lawyer, until Microsoft got its act together and gave us MS Word. Unless you were careful to upgrade, files readable in one software were unintelligible in the other. Some lawyers I know kept a computer in their office running on the outdated-by-then MS-DOS just so that they could continue to access their WordPerfect files.
It is because of these fundamental problems with managing digital content that we have all migrated so willingly to the cloud. When content is provided as a service, we don’t have to worry about upgrading to the latest version, or ensuring that our digital files are in the latest format. Today, files and folders are a thing of the past. The books we read, the music we listen to, the knowledge we access are all just elements of data stored in vast, virtually infinite databases that we subscribe to. We may no longer own books, music or movies, but we can still read, watch or listen to whatever we want, whenever we want.
This diminishing importance of ownership has extrapolated itself into various other facets of our lives. We no longer own as many things as we used to. Thanks to on-demand app-based services, we no longer need to own a car. We can hail one whenever we need to, wherever in the world we might be. There was a time when only certain sections of society could own holiday homes in the hills or by the beach. Today, the pleasure of a fully furnished home by the beach at your disposal is one that almost anyone can enjoy, thanks to apartment-sharing services that have proliferated over the internet.
As our society makes the transition from ownership to user-ship, we need a similar shift in legislative thinking. Technology will enable us to use things we do not own in new and interesting ways, but so long as laws continue to base themselves on concepts of ownership, they will come in the way of innovation.
We will need fresh thinking in intellectual property law to allow for the creation of content outside of traditional frameworks of publishers, record labels and film studios. We will need frameworks that allow us to benefit from the advantages that digital platforms offer while continuing to make it economically viable for artists, musicians and film-makers to produce content. We will need a new approach to liability that allows platforms that aggregate service providers to do so without incurring the level of liability that is currently reserved for owners, while at the same time ensuring that standards of safety and security that are currently imposed on owners are appropriately addressed in any new framework.
These regulatory solutions may not be immediately obvious, but if we can agree that there are benefits to a more disaggregated notion of ownership, we will have to find solutions that enable and encourage it.
Rahul Matthan is a partner at Trilegal and author of ‘Privacy 3.0: Unlocking Our Data Driven Future’
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