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Who Owns Information? From Privacy to Public Access

Author: Anne Wells Branscomb
Publisher: New York: Basic Books, 1994
Review Published: June 2002

 REVIEW 1: Benjamin J. Bates

Anne Wells Branscomb was a communications lawyer and scholar who was one of the first to recognize and write about the problems that intellectual property law would face from both the transition to digital communications and the rise of an information economy. As information became both easier to collect and collate, and more valuable, various parties began to use the law to establish ownership rights (i.e., the right to exploit) over a range of new forms and aspects of information. In Who Owns Information? Branscomb uses this metaphor to illustrate and explore the broader issues arising from the legal efforts to define and establish ownership rights to a variety of information. While there have been changes in the law since the book was first published in 1994, most of the issues raised remain unresolved. Thus, read this book for a background and a good discussion of the general issues, but keep in mind that the law is still developing and some aspects have changed.

Branscomb starts by laying out the foundation for the stresses framing the legal development of intellectual property rights. Quickly tracing the rise of the perception of economic value in a range of information and information products, she outlines how various groups recognizing that value sought to use intellectual property law to define, and to designate to themselves, ownership rights over that information. After all, with ownership came the ability to control the ability to extract commercial value from that information. The next nine chapters each discuss how those rights came to be defined for certain types of information, and the broader issues raised by the development of copyright and intellectual property law in those areas. She places an emphasis in those considerations on the two concerns provided in the subtitle of her book: privacy and the access to what might be considered to be "public" information.

The first of these chapters, "Who Owns Your Name and Address?" sets forth the basic approach. The gut response to the question is that, of course, "Don't I?", and to wonder why anyone else might want to. Branscomb elaborates that while such information may be ours, there are related issues where the law has evolved in problematic ways. Recounting the efforts of a lawyer to keep his mother's name and address off of junk mail lists, the US Postal Service (USPS) claims regulations allow them to sell addresses (and address changes) to commercial mail managers. Some readers may also be surprised to learn that the USPS legally controls the ability to use your mailbox. With the rise of computers and electronic transaction tracking, the ability to apply that information to the creation of targeted mailing lists has also increased, and the law gives ownership of that information, and thus the ability to market it to others, to the collectors of the transaction information rather than the individuals who undertake the transaction. Branscomb suggests that these legal rights to use what in essence is personal information raises privacy issues and the possibility of being deluged with unsolicited direct mail campaigns. More recent legislation has begun to address spam and online privacy issues, but the law hasn't changed that much with regard to surface mail.

The next chapter continues with the privacy and marketing concerns with respect to telephone numbers. Branscomb once again uses cases and exemplars to illustrate the issues as well as the development of the law. Readers should note, however, that this is one area in which there continues to be new regulations and case law. Branscomb also discusses some other aspects related to ownership of telephone numbers. Copyright law has addressed the ability to copyright directories, and courts have begun to address the issue of whether firms acquiring special numbers have an ownership interest (as they do with Internet addresses). As the phone system continues to adopt electronic switching, it raises the possibility to keep phone numbers, even when moving (as is done with cellphones). The issue of whether the phone company or the subscriber controls the ability to use or change a phone number is one that is likely to become increasingly important, particularly as numbers start to run out and we are faced with the transition to a new numbering system.

The next chapter asks "Who Owns Your Medical History?" Branscomb's focus is on the ability to control access, particularly with respect to keeping medical information private. The law was initially confounded with the rise of privacy issues related to AIDS, and later, concerns about whether or not there was a requirement to warn those who might be exposed to those carrying the HIV virus. Still, there also remains privacy concerns about who can or should have access to medical records. One recent trend that Branscomb did not address was the rise of the assertion of ownership rights in medical records by insurance companies and doctors, some of whom are refusing to pass on records (without compensation) when patients change doctors or insurance companies.

Three more chapters deal with the ability of some to access, use, and exploit information products made by others. Chapter 5 addresses the somewhat confusing law surrounding the privacy of electronic messages, where federal law ensures privacy, but case law has indicated that those providing email services have a right of access. Chapter 7 focuses on the legal debates surrounding the ownership of the Dead Sea Scrolls, and the ability to access them for academic and commercial purposes. While Branscomb does not address the recent efforts of the Church of Scientology to use copyright to prohibit use and discussion of some of its church materials, there are certainly parallels here that can inform that debate. Chapter 9 addresses some of the attempts to privatize information collected and created at government expense, and various attempts to limit access to other types of government information. Branscomb raises, but does not resolve the basic question of whether the government should subsidize the collection of information which may have commercial as well as public value.

Chapter 4 deals with images. Copyright law is clear that images are owned by those who create them, not the subjects of those images, although privacy law does protect against commercial exploitation without permission, and fair use messes things up for public and newsworthy figures. Branscomb also briefly addresses issues related to the use of broadcast video, video games, and virtual reality, and briefly addresses the questions of moral rights in copyright (i.e., the ability to control image manipulation, such as colorization of old movies). Chapter 6 looks primarily at two other issues related to video entertainment, encryption and theft of satellite and cable signals. There is a focus, in the discussions of implications on the twin concerns of privacy and access to what might be considered public information (at least publicly broadcast information products) on the ongoing battle between constructed legal private ownership rights and the established common-law access and privacy rights of the public.

Chapter 8 examines "Who owns computer software?" and reviews what is probably the most convoluted legal development covered in this book. From the first, there were debates over whether computer software was covered by patent law or copyright law (or neither). Recognizing that copyrights lasted longer than patents, software creators sought copyright protection, but faced the problem that copyright dealt with only fixed forms, while the value of software lay in what it did, not in the specific code which created those functions. Thus, the effort, related by Branscomb, to extend intellectual property protection to the "look and feel," and/or the functionality, of software. A related concern was the inherent ability to duplicate software, particularly by installing it on multiple machines, which could reduce sales. This led to the emphasis on "licensing" rather than selling software, a trend legitimized by recent legislation and court cases. Branscomb notes that these efforts could hamper creativity and competitiveness, and calls for a new paradigm focusing on the uses of information assets rather than focusing on the copying of intellectual property.

Branscomb expands on this proposal in her conclusion. Privacy, after all, is at heart a question of who does or should have access to, and the ability to use, various kinds of information. She notes that three distinctive areas of the law have been brought to bear on the basic issue of determining when private assets in information recognized, and when those rights might conflict with other social and individual rights and values. That three disparate areas are used, each of which arises from different concerns and assumptions, and none of which were developed with dealing with digital information technologies, contributes to the confusion and difficulties in dealing with the ownership of information. Branscomb notes that to a large extent, the law has sought to use ownership and the market economy to deal with these issues, and that there have been problems with the results of those efforts. She also correctly realizes that the problem is not that the market metaphor is inappropriate, but that the emphasis has been placed on the wrong goods, that ownership is placed in many cases in the collectors and users of information rather than the creators of the information. Thus the market has a problem dealing with the impacts of the use of information on those who actually create it. Branscomb then considers what legal principles ought to apply, if in fact information about people was owned by those individuals, before once again advancing a call for a new paradigm for dealing with information as assets rather than goods to be exploited.

The law's continuing contortions in its attempt to maintain commercial control over copies is proving increasingly problematic, and more and more writers are exploring the ramifications of current legal developments in intellectual property rights. This very readable book provides an excellent starting point for those interested in the increasingly problematic field of intellectual property law. It sets forth, and amply illustrates many of the issues and contortions, and the issues raised, as commercial firms and individuals seek to exploit information and products produced, at least in part, by others. It should be read by anyone interested in the implications of copyright and privacy law in the emerging information economy.

Benjamin J. Bates:
Benjamin J. Bates is an Associate Professor in the Department of Broadcasting, and an Adjunct Professor in the School of Information Sciences, at the University of Tennessee, Knoxville. His research focuses on the social forces shaping the evolution of communication systems, and the issues confronting intellectual property rights in a digital age. He's published widely in the areas of new media and society, and telecommunications/information policy and economics.  <bjbates@utk.edu>

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