Tuesday, 7 April 2009

Very personal data rights, and an apology to Bill Patry

That's the title of an article by David Bradley, in his sciencebase blog, commenting on an article by Yue Liu of the Norwegian Centre for Computers and Law. Yue suggests that biometric information should be treated as personal property rather than merely (my choice of word) "data acquired" (why not "acquired data"?). See Yue Liu (2009). Property rights for biometric information – a protection measure? International Journal of Private Law, 2 (3), 244-259: I haven't read it, and I'm not sure where to find it - probably not online, at least not for free.

So far, so interesting. Liu takes care, rightly in my view, to say she doesn't mean that it should be regarded as intellectual property: "
I think it may make sense to regard it as a property of an individual since it is so intimately linked with our body.” I'm fascinated, because this seems to bring into play another meaning of the word "property" - and it raises, in my mind, a host of fascinating possibilities. But Bradley, who might perhaps have drunk too deeply at the well of "intellectual property", thinks otherwise, and makes the point that if someone steals the shirt off your back, you no longer have the shirt: if someone makes an "unlicensed generic version" (a concept with which I am struggling a little) of a patented invention, they have stolen the intellectual property: and he thinks that stealing biometric data is more like that than it is like stealing a shirt.

So it is, but that doesn't necessarily mean that it should be assimilated to intellectual property. Reliance on the doctrine of intellectual property theft gets us nowhere. Theft involves an intention permanently to deprive the rightful owner of their property, and that simply isn't possible with so-called intellectual property. That's why I am becoming more and more convinced that talking about intellectual property is misleading, even downright wrong. Trying to understand the rights that we lump together under this heading by analogy to, well, shirts, to take the example mentioned earlier (though using it for a different purpose), leads us badly astray: it leads us into talking about logical impossibilities like copyright theft.

But shirts are tangible property, whereas copyright, patents and the rest of them are intangible rights. Shouldn't we compare them with other choses in action, like all those wonderful financial instruments that have brought the world to the brink of disaster? I think the answer is still "no", because the assets underlying those instruments can be appropriated by a dishonest person. It's possible to "steal" a patent, registered trade mark or registered design, by forging the papers to transfer it, but isn't that a very different matter?

I'm sure I'll want to come back to this topic time and again, but for now I just need to say sorry to Bill Patry for querying his characterisation of copyright being a property right as a metaphor. I now see what you mean, and the fact that our copyright law says that copyright is a property right cannot be the end of the story.

Before prassing the "publish" button, I'll add one more point to which I will want to refer (and what good is a blog if you can't fill it with memos to oneself?). According to the Bloomsbury Dictionary, not my favourite dictionary but the one I can reach from my chair, "property" has seven meanings, of which the fourth is "a characteristic quality or distinctive feature of something" - spot on, for Yue Liu, although I have a feeling that the coincidence in terminology doesn't conclusively prove her right. The first definition is headlined "something owned" in nice bold block capitals: but it goes on to say "something of value such as land" (OK so far) "or a patent ..."

1 comment:

Dave Bradley said...

You got me the wrong way round, I argued that it's *not* like stealing the shirt off your back. It's Yue who thinks it is! I think biometric data is more akin to intellectual property

By the way, who is Bill Patry, I never mentioned him in my post title!


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