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tensions
This
page considers tensions in conceptualisation and handling
of intellectual property.
It covers -
It offers a point of entry to more detailed discussion
in later pages of this guide regarding such matters as
fair use, biopiracy, moral rights and electronic copyright
management systems.
The following page illustrates those tensions by considering
the history of IP and some major philosophical and historical
studies.
introduction
Intellectual property is increasingly contentious. Why?
Because it's the intersection between culture, business,
communication technology and community values. Like censorship,
debate about the role - or merely the existence - of intellectual
property in the digital environment can serve as a litmus
test for argument about life in a global information society.
rationales
Paul Goldstein, one of the more insightful writers about
copyright in the digital environment, distinguishes between
'copyright optimists' and 'copyright pessimists' -
On one side are lawyers who assert that copyright is
rooted in natural justice, entitling authors to every
last penny that other people will pay to obtain copies
of their works. These are the copyright optimists: they
view copyright's cup of entitlement as always half-full,
only waiting to be filled still further. On the other
side of the debate are copyright pessimists, who see
copyright's cup as half empty: they accept that copyright
owners should get some measure of control over copies
as an incentive to produce creative works, but they
would like copyright to extend only so far as an encroachment
on the general freedom of everyone to write and say
what they please.
Bernt
Hugenholtz, in a 2000 paper on Rights Allocation In
A Digital Environment, identifies five major rationales
for copyright protection:
1
'personality' - the work of authorship bears the personal
imprint of its maker: copyright ('author's right' or
droit d'auteur) is a species of a right of personality
2 'natural law' - copyright reflects notions
of natural justice: "Author's rights are not created
by law but always existed in the legal consciousness
of man".
3 economic arguments - copyright protection promotes
economic efficiency, by optimizing allocation of scarce
resources through the pricing system.
4 social and cultural goods - copyright acts
as an incentive to create and disseminate works that
serve a valuable social or cultural purpose.
5 freedom of expression - copyright makes creators
independent of Maecenas, State or subsidy: copyright
is the proverbial 'engine of free expression'.
In
the West those rationales have coalesced as two broad
legal traditions: intellectual property as a human right
and (particularly in the UK and US) as a utilitarian mechanism.
Intellectual property regimes can thus be be considered
as a system of recognition and rewards: a creator deserves
just compensation for the hard work and ingenuity that
results in something of value, irrespective of whether
the result is a tangible output such as a ditch or bushel
of wheat or an intangible output such as a song or a technique
for better ditch digging and wheat growing.
A report leading up to the 1844 French Patent Law for
example commented that
Every
useful discovery is … the presentation of a service
rendered to Society. It is, therefore, just that he
who has rendered this service should be compensated
by Society that receives it.
The
utilitarian or economic rationale for intellectual property
rights - dominant in UK, US and Australian thinking -
characterises IP as a system of incentives to foster innovation
through rewards - primarily financial - for creators and
investors, thereby benefitting the society at large.
The two traditions have never been as distinct as sometimes
claimed and arguably reflect different time perspectives
on innovation. Characterising intellectual property regimes
as a system of rewards
retains
its logic ex post, when the innovation is available,
whereas the emphasis on the incentive role of IPRs is
most compelling from an ex ante perspective, when the
innovation is still a random event and the probability
of a successful discovery can be affected by investing
resources and efforts. But the two distinct rationalizations
for IPRs are obviously related, because it is the ex
post reward that provides the ex ante incentive.
Information
is a peculiar good in that it is typically very cheap
to reproduce, irrespective of how difficult or expensive
it was to initially produce. Innovations are vulnerable
to copying and imitation. That's particularly the case
in the digital environment, where for example a feature
film may involve the work of several thousand people and
considerable investment but copies can be easily made
and distributed.
Economists have argued that knowledge has the attributes
of a 'public good', appropriately protected through intellectual
property and other law. Without that law private producers
of knowledge will not be able to gain appropriate recognition
and remuneration for their their work (or even properly
value it in a market economy), something that will supposedly
lead to "underproduction of new ideas and new technologies".
A "well-defined (and enforceable) allocation of property
rights on new discoveries" can address that externality.
The challenge for many policymakers is achieving an appropriate
balance between the rights of creators/investors and consumers
- sufficient incentives to reward innovation without stifling
new creativity.
economic significance
The Australian Copyright Council published Hans Guldberg's
valuable Copyright: An Economic Perspective. It
highlights the role of copyright-related industries in
Australia's GDP and for example notes that those industries
are growing at 1.5 times the rate of the total economy. Ruth
Towse's 2001 Copyright & the Cultural Industries: Incentives
and Earnings paper (PDF)
offers estimates about the value of IP in the music sector
and how the pie is sliced.
The International Intellectual Property Alliance's 2002
report (PDF)
and 2000 report (PDF)
on the significance of copyright for the US economy paints
a similar picture, in line with findings in The Economic
Impact Of Knowledge (Boston: Butterworth 1998) edited
by Dale Neef and writing about the information economy
highlighted in other guides on this site.
Elizabeth Webster's 2002 (PDF)
Intangible & Intellectual Capital: A Review of
the Literature highlights particular research. There
is a useful introduction to economic aguments in Paul
David's chapter
on 'Intellectual Property Institutions & the Panda's
Thumb: Patents, Copyrights and Trade Secrets in Economic
Theory & History' in Global Dimensions Of Intellectual
Property Rights In Science & Technology (Washington:
National Academy Press 1993) edited by Mitchel Wallerstein.
Intellectual Property Rights in Science, Technology,
& Economic Performance (Boulder: Westview 1990)
by Francis Rushing
& Carole Ganz Brown offers a similar exploration,
complemented by William van Caenegem's Intellectual
Property Law and Innovation (Cambridge: Cambridge
Uni Press 2007), The Interface Between Intellectual
Property Rights and Competition Policy (Cambridge:
Cambridge Uni Press 2007) edited by Steven Anderman, The
Intellectual Property Debate: Perspectives from Law, Economics
Political Economy (Cheltenham: Edward Elgar 2006)
edited by Meir Pugatch and 'Is Nozick Kicking Rawls's
Ass? Intellectual Property and Social Justice' by Anupam
Chander &
Madhavi Sunder in 40 UC
Davis Law Review (2007) 563-579 (PDF).
Peter de Jager quipped that
The
sad fact is that the notion of Copyright is being eroded
by our ability to Copyoften, Copyfree and Copyeasy.
The Fair Use page of this
guide highlights studies of the balance between incentives
for copyright creators (and investors) and the needs or
rights of consumers. The concluding page of the guide
looks at questions about the prevalence and impact of
copyright piracy - often treated as a criminal rather
than civil offence - and other rights infringements.
next page (IP history)
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