This spiked-debate's positioning papers, by David Stoll and Sandy Starr, graphically illustrate why a public debate on copyright issues is so necessary. Both positioning papers contain useful insights, but Stoll and Starr are speaking past, rather than to, each other.
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The issue to clarify in this debate is what is meant by 'self-regulation'. David Stoll assumes there is something different about copyright regulation today, because we are dealing with the internet. Sandy Starr refutes this, arguing that the degradation of due process in the name of the internet threatens civil liberties and the juridical process across society.
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This counterposition is unhelpful. Each side appears entrenched - the private owners of intellectual property rights versus the social defenders of rights and liberties - with the internet in between, as the villain of the piece.
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This is a false debate which mystifies the issues and threatens the internet's future as a medium of social cooperation and creativity. In the first place, intellectual property rights - a series of rights in intellectual creations and in certain forms of identifiers (patents, industrial designs, copyright, trademarks, geographical indicators) that confer exclusive rights on the owner to prevent others from exploiting its subject matter - are no different from any other private property derived entitlements.
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The regulation of these relationships is based upon the supposition of the opposition of private interests. This supposition is what intellectual property rights have in common with all legal strictures, that underlie the development of the legal structure of society. The conduct of people may be (and has been) regulated by varied and complex rules and norms, but legal stricture begins where the individualisation and opposition of interests begins.
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The extension of law into intellectual property has its roots in the same process that transforms all social relationships into relationships between commodity owners. The internet does not alter this reality. It simply makes regulation more complex.
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This is why we need precision when we attempt to discuss 'self-regulation'. Space precludes a full discussion of this, but it should be understood that 'self-regulation' is almost always a misnomer. Legal stricture is not 'self-regulated'. It is state regulation through the judiciary - the courts - and ultimately enforced by the police, the prison service, and so on.
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The 'self-regulation' that Stoll wants is what Starr cautions against - namely, further state intervention beyond the 'normal' regulation of legal strictures. The call for self-regulation in reality only invites further intervention in the internet space, with consequences for both the internet and the basic juridical relationships of society.
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Stoll certainly raises a legitimate question about the protection of creativity in the new reality of the internet. But the historical legacy and problem is that the accumulated body of copyright and patent law was developed to convey forms and methods of expression entirely different from a digital medium like the internet. Legal moves to keep the ship afloat have resulted in a frenzied attempt to batten down the hatches.
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The problem is that intellectual property law cannot be retrofitted or stretched beyond its original intent, to contain creativity in the face of the internet. As John Perry Barlow of the Electronic Frontier Foundation  insightfully puts it, this is no more possible than 'real estate law' being 'revised to cover the allocation of broadcasting spectrum' .
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By endorsing self-regulation, those upholders of intellectual property rights are inadvertently endorsing increased government and corporate intervention in the internet, to protect by force what can no longer be protected by practical efficiency or general social consent.
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This represents a no-win situation for all. Not only does it result in the kinds of erosion of due process that Sandy Starr highlights - it threatens the internet itself as perhaps the greatest medium for future creativity. The strictures now being contemplated threaten to close down the internet's true potential as a peered, distributed grid of cooperation and creativity.
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Dr Norman Lewis is director of technology research at Freeserve.com plc and a consultant for the World Intellectual Property Organisation. He writes here in a personal capacity.
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