3.7 - Ideas-Knowledge-Information-Data (“iKID”)IP-rights

Information Age. In the Information Age the economic importance of information – in a broad sense –  both as a means of production and as product, has dramatically increased. As Negroponte indicates in Being Digital, bits (intangible, electronic signals) have replaced atoms (tangible, physical matter) to a significant extent as economic value carriers (Negroponte, 1995). Machlup’s study of 1962 – The Production and Distribution of Knowledge in the United States – in which he indicates that in those days the Knowledge Economy already stood for 29% of the Gross National Product in the US, is seen as a point of reference for the rise of the Information Age (Stewart, 1997, p. 21).

The data-information-knowledge-hierarchy. Information stands for the meaning that certain data have for a person. One can speak of a data-information-knowledge-hierarchy (Ackoff, 1989).

Data (know nothing). Data, such as series of numbers or names stored in a data file, are in themselves meaningless. Data need a public and context to acquire meaning and value.

Information (know what). It is only because of their organization and presentation that data transform into ‘information’ and become meaningful for the recipient of those data. By organizing and presenting numbers and names, it can become clear that certain data represent telephone numbers, addresses or names of subscribers.  

Knowledge (know how). Once this information is processed and understood by its recipient that information becomes knowledge: I now know someone’s name, telephone address and telephone number.

Wisdom (know why). Wisdom is the next step: what is being done with this knowledge. This may vary from a marriage proposal to a telephone terror campaign and for both options the question remains: "what is wise" The answer to that question is – to the disappointment or relieve of the reader – outside the scope of this work.

IP-rights and the public domain. If one ponders about the question what IP-rights do protect, it becomes obvious that this mainly concerns information:  the organization and presentation of data that gives meaning thereto. Data as such – mere facts – are not protected. It is even an important principle of intellectual property law that data and facts should generally be freely useable. The same principle applies to information. What I know after reading a newspaper or after having taken a class, can be freely used by me. In principle, we may also freely communicate about facts and knowledge. If we position the different IP-rights against the backdrop of the data-information-knowledge-hierarchy and compare them with what is, or can become, part of the public domain, then the following classification can be made.

Private domain: confidential information. Confidential data, information and knowledge are outside the public domain, simply because they are not accessible to third parties. From a legal perspective they are protected because the precautionary measures that are taken to maintain their confidentially need to be respected by third parties. With regard to undisclosed information that has commercial value because it is secret, article 39 TRIPs provides that such trade secrets shall be protected by giving natural and legal persons the possibility to prevent such trade secrets from being disclosed to, acquired by, or used by others in a manner contrary to honest commercial practices. Trade secret protection encompasses the entire range of the data-information-knowledge-hierarchy. It is allowed to keep data, information and knowledge confidential and prevent them from becoming publicly accessible. For as long as this confidentially can actually be maintained, such data, information and knowledge may never become known.

The Coca Cola recipe, that has been secret since 1886, is the archetypical example of a trade secret.

From a public interest perspective, trade secrets are a sub-optimal category.  They are valuable, since they represent commercial value, but as a society we only have limited benefits, since they not publicly accessible and are outside the public domain. Bearing in mind that the goal of IP-rights is to enhance the public domain, it is clear that trade secrets should, from the perspective of their lawful controller, only be granted a sub-optimal legal protection.

Public domain. The public domain – the pool of publicly available data, information and knowledge – can only expand when data, information and knowledge (i) is presented (packaged), (ii) is communicated (distributed) and (iii) is applied (used). It is for that reason that these three functions are generally protected by IP-rights. The presentation (packaging) of data, information and knowledge is in particular the field of copyright and related IP-rights. The application of data, information and knowledge is the domain of technology, where patent law has a dominant position. If it comes to the communication of data, information and knowledge, leading roles are reserved for (a) trade mark law, which particularly monitors the identification of the origin of a product or service, and (b) copyright, which controls the distribution of information. By protecting the presentation, application and communication of data, information and knowledge in their respective fields, IP-rights stimulate that data, information and knowledge are and remain publicly accessible and that it can be worthwhile for right holders to contribute to the increase of the public domain - the publicly accessible data, information and knowledge.

Culture: forms of expression of data, information and knowledge. Designing – organizing and presenting – data, information and knowledge is the domain of IP-rights that protect cultural performances: copyright, neighboring rights, database law and design law. Raw data – facts – cannot be monopolized after they have become publicly accessible, and the same applies to the information that a person can obtain from these data. Database law looks at the organization and presentation of data. Neighboring rights and (industrial) design rights relate to the field of information: they give significance and meaning to edited data, such as a musical performance or a specifically designed chair. Copyright equally covers the creation of data and information, but also the creation of knowledge, for example in written words. All these different designs of data, information and knowledge are in the field of “art and science”, that is, culture.

Identification: communication of data, information and knowledge. In order to get the most out of the design and application of data, information and knowledge, it is necessary to be able to communicate effectively. In order to do this, it is important that it is clear from which source the form or application given to data, information or knowledge originates. Effective trade and public debate is only possible if the origin of data, information and knowledge can be accounted for when they are communicated. This identification task is fulfilled by the IPR on distinctive signs. A trade name identifies the company operating under that name. The trade name is even protected if it is largely descriptive. The trade name thus moves at the intersection between information and data. The use of a trade mark, a distinctive name or logo, distinguishes a product or service primarily according to its origin. A trade mark is a carrier of information, including in particular the reputation and goodwill built up over the years by the trade mark and all kinds of (advertising) messages with which the trade mark has embodied. The mere perception of a trade mark invokes all kinds of associations. Therefore, a trade mark is a vehicle of all kinds of information, which is also recognized by the Court of Justice in the form of various functions of a trade mark, such as quality assurance, reputation, investment, communication and advertising function (L”Oréal v Bellure (IPPT20090618); Interflora v Marks & Spencer (IPPT20110922)).

Wisdom. If one realises that only patent law to the actual application of knowledge it will come as no surprise – and as a reassuring thought – that wisdom lies beyond the scope of IP-rights. There are no exclusive rights to wisdom and all data, information and knowledge can be freely used for that purpose.

Free as the air. IP-rights are the exception to the rule that data, information and knowledge are part of the public domain. In the words of Justice Brandeis in his dissenting opinion for the judgment International News Service v Associated Press van de US Supreme Court van 1918 (IPPT19181223): “The general rule of law is, that the noblest of human productions - knowledge, truths ascertained, conceptions, and ideas - became, after voluntary communication to others, free as the air to common use.”