If there is one issue in our information society, where we generate information at every moment, it’s the issue of control over information.
People want their private information to remain private until made public by themselves, but once the information is made public, there is no way for them to control this information any more. On the internet, especially, it is hard to erase information that you would want to see disappear, notably if the information in question does not cause harm to your reputation.
Companies want to protect trade secrets as well as much commercial information, but while we tend to speak of information being “given”, “transferred”, “licensed for use”, the law doesn’t recognise information as being remotely similar to property, and this can lead to certain issues. Indeed, if reverse engineering is possible and if it is impossible for the company to obtain a patent, it may be easy for a competitor to find the information, and there’s nothing the company can do about it.
What can we do about it?
Critics of the idea of applying “property” to information say that “property” entails an idea of “rival” use (only one person can have it at a time) and exclusivity, while information is by nature “non rival” (many people can use it at one time). While I fail to see how “intellectual property” is allowed in such a case, where many people can end up using one piece of information (e.g. the description of an invention in a patent) through licences, I recognise that the idea of “property” may not be adequate.
There is therefore, in my opinion, a need for a new legal concept, that of “information ownership“.
Information ownership would entail the right for the information owner to use information, to transfer ownership of it, to allow certain uses of information by other persons, et cetera. It would not be “property” in the traditional legal sense, but would cover the same basic idea, thus allowing the law to better reflect reality (it goes beyond mere semantics, I believe, but it may appear as simply that to many).
In a world with the concept of information ownership, courts would recognise the right for a person to demand the deletion of all instances of publication of a certain piece of information, if the person’s interests trump those of society. It would be decided on a case by case basis, but such a system would allow for flexibility.
In a system of information ownership, the current tests with regard to private data could still apply, as they are merely a declination of the idea according to which people should have control over certain data. Trade secrets would potentially be better protected, as there would be a closer link between the intention of the parties (i.e. “I own the information, and I’m allowing you to use it”) and the legal framework.
The main problem with such a system is the following question: who owns the information?
Just as there can be co-ownership of property, so there can be co-ownership of information. Take the example of a picture of three people partying in a club. The information embodied in the picture is that these three people were partying in a club. On a Facebook/Flickr/… page, there may be additional details about the picture, such as the date on which it was taken, thus allowing third parties to infer the following piece of information: these three people were at this club on this day. Who owns ownership in this piece of information? All three. Who is allowed to use the information and allow use of it? All three, with the possibility of ex post control by the co-owners: if one person makes the information public, the other two can force any identified third person who is using the information to stop using it.
Moreover, the standard rules of evidence would apply, so as to better answer the question of ownership for cases where there is no identifiable link with any person (where there is as identifiable link with one person, there will be a presumption of ownership by this person).
Of course, I can see a million different issues arising as a result of such a system, but this was merely a first draft of an idea, a call for discussion.
All that I know is that, in my opinion, there is a need for something that bridges the gap between privacy, data protection and trade secrets, something that allows us to control information beyond its publication. Otherwise, it is not hard to foresee cases in the near future where people will wish to remove information that they themselves have published or that someone else did, and where the current legal and real contexts will prevent them from doing so.