Justifications for ordering of IP space

Economic/efficiency/utilitarian

1. the access-incentive tradeoff

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  Underlying assumption: progress is good and necessary.
  
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  Incentive: intellectual goods, and the progress they embody, are socially useful and we need mechanisms to encourage ensure they are produced. Problem – such goods are of a public good nature; the copying costs are close to zero therefore difficult for the creator to appropriate the value of the goods. W/o opportunity to recoup investment (and earn profit), creators will have no incentive to create/invent/etc.
  
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  Access: progress will come to a standstill if creators don’t have access to that which has been already created. Progress necessarily requires building upon or enhancing what came before. Moreover, progress is no good if the public at large cannot benefit from it. We want people to be able to read the book, use the meds, and see the patent (so can use it to create something else).
  

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  Monopoly is bad b/c anticompetitive, gives one person too much control over valuable resources, and drives up prices
  
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  How can monopolies be avoided? (1) Siebrasse – define right properly = don’t have to worry about effects of monopoly (e.g. define patent precisely and a competitor will be able to patent right next to it); (2) limit rights such that monopoly is not absolute (time limits; fair-use; idea-expression; interpretation of patents)
  

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  People are self-interested rational wealth maximizers who (1) respond to incentives and (2) expect their creations to be expected by a stable property regime (and will not create if they are not so protected). SH: people operate upon many incentives – joy they get from creating; prospect of winning book prize, getting tenure, getting invention named after them; altruism – inventing drugs to cure disease specific to poor region. Why do law professors leave lucrative jobs and firms to come and work at McGill? Why do open-source software creators build upon software with no prospect of monetary reward?
  
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  There is a market for all creations (i.e. people will be able to sell what they create). SH: There isn’t a market for all creations – but according to a view in which progress is central, we needn’t be worried about not providing an incentive for those things which will not “sell” – b/c if they do not sell, they are likely not useful. Counter: they may be useful one day. Also, is there not some non-economic value that, though cannot be traded on the market, is still important to society and critical to progress in the broader sense (i.e. not just progress as measured by GDP growth)
  
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  Creators will have access to market information: e.g. how much demand there is for their intellectual good and how much it is worth
  
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  Transaction costs are zero: Coase in The Problem of Social Cost argued that the issue of initial allocation (i.e. who is initially granted right?) doesn’t matter b/c, assuming that transaction costs are zero, people will bargain and the person who values the right the most will eventually end up with it. But transaction costs are not zero. It is hard to trade, in part, b/c information costs are high.
  
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  SH: Assumes that only those intellectual goods which are tradeable or economically valuable are worth protecting. [But reality is that all goods get protected under CR? Not so under patent? – must be useful]. At least assumes that we only need to be worried about creating economic incentives (which suggests we only want to promote creation of tradeable goods)
  
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  See James Boyd White article below
  
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  Merges article: the standard micro-economics view is flawed b/c doesn’t take into account all of the complex interactions btwn IPR holders. One-to-one mapping of products and property rights is not accurate  many products are the assembled from a number of components, each of which may be subject to its own IPR (see summary below).
  

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  Couter & Ulen: principal economic justifications for granting property rights to trademarks are that they lower consumer search costs and create an incentive for producers to supply goods of high quality. Are limits on duration justified? NO. Limits on duration were justified in CR and patent as mechanism to minimize the social costs of monopoly and tracing. BUT, TMs encourage competition and do not impose tracing costs. [SH: access = need limits on breadth  if becomes generic, i.e. part of the general language, loses its protection as a TM]
  
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  Landes & Posner:
  
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    Decreases search costs by promoting easy identification
    
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    Encourages spending on quality to guarantee uniformity and encourage repeat purchases by consumers, which in turns decreases the costs of sales
    
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    Therefore TM have a self-enforcing nature that is economically beneficial
    
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    TM also encourages the use of short phrases and generally benefits the “economy of language” by creating new terms
    
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    Further, the costs of enforcing TM are generally small, unless a TM is in danger of becoming generic (although it now appears sufficient to add “brand” after the endangered TM as in “Post-It Brand”)  if becoming generic, must invest a lot of money to make it distinct again (Coke example)
    
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  CONSUMER: reduce search costs; allow consumers to ensure that will get the same quality they had last time
  
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  PRODUCER: incentive to invest in quality and uniformity (b/c if people can use TM to identify what they are getting, and one day they get bad quality, they will not buy it again [which is only possible b/c they know that they bought in the first place and can avoid it in the future]
  
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  INCENTIVE TO CREATE NEW FANCIFUL/COLOURFUL WORDS
  

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  Why must CR be of limited duration? (patent b/c want to limit monopoly)
  
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  Tracing costs – before using CRed material, user must trace the owner and obtain permission. Tracing can be difficult when a creative work is old; however, tracing is unnecessary when user knows it is so old that CR has expired.
  
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  One vision of CR and technology: technology will make law necessary; technical protection through cheap encrypting will enable producers of digital information to control who uses it w/o much need for law [SH: problem – no tradeoffs – fair use; public domain; can protect forever; etc.]
  

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  Should patents be broad or narrow?
  
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  Broad patents encourage fundamental research and narrow patents encourage development (i.e. of applications to bring a product to market).
  
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  What breadth of patents is most efficient?  if social value of investment on fundamental research > social value of investment on developing applications, patents should be broadened (and vice-versa).
  
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  U.S. courts have often protected applications more strongly (b/c have more stand-alone value) but this might be inefficient b/c if the people who do fundamental research receive the sale value of the pioneering invention but none of the sale value of the application, there will not be enough fundamental research.
  
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  If transaction costs were zero, then breadth wouldn’t matter b/c producers of fund research and applications could bargain costlessly and make efficient contracts. BUT…transaction costs are not zero.
  
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  What should be the duration of a patent?
  
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  Rewarding and encouraging invention is good but monopolies are bad (b/c overcharge buyers and discourage dissemination of new ideas). Thus, must limit monopolies
  
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  20 years is not the most efficient duration. Duration should depend on the invention  e.g. will be different life for pioneering inventions and applications. E.g. minor inventions should get shorter protection.
  

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  INITIAL ALLOCATION: TM – use economic justifications. CR – use economic + labour justifications. MR – use personhood justifications. Limits on the rights: Public domain justifications; economic justifications (access/no monopolies)
  
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  Public domain can be justified by all these justificatory mechanisms  economics (access-incentive tradeoff); labour and “enough and as good”; distributive justice (obvious); authors rights (labour); personhood?
  

Boyd White, “The Language and Culture of Economics”

James Boyd White, “The Language and Culture of Economics” in Justice as Translation Doesn’t like economic analysis in particular because of its cultural consequences In North America, economic language is often the basis of decisions re intellectual property. The dominant view seems to be that use of economic analysis and language will yield the best intellectual property regimes. But at the center of economic analysis is the idea that things are convertible into money, and widespread economic talk conveys in the culture the belief that everything is fungible. Economists retort that notions like “self-interest” or “rich” are only analytical tools with technical meanings, but such talk only reinforces ordinary selfishness and greed. Also problematic is the idea that values are reducible to agent preferences, thereby suggesting that moral choices are sheer matters of taste and just as disposable or subject to change. In fact, the very value-neutrality claimed by economics is in itself problematic, because all the greatest questions and the greatest human endeavors are value-driven. Further, economics claims to be fair because it presumes democracy, equality and freedom of choice. But real people are not equally free in their capacity to make choices, and democracy is based on the equality of individual rights, not on the equal purchase value of a dollar. Even as an economic tool, economics doesn’t have much to say. Economists are interested in the exchange of value, but value can change thru the influence of non-economic factors like culture. The non-economic background is not stable. Further, the end of life is not exchange. Exchange is merely a way to accomplish those ends.

Merges, “Intellectual Property Rights and the New Institutional Economics”

Robert P. Merges, “IP Rights and the New Institutional Economics” (2000), CB I p. 134 Standard law and economics view of IPRs (i.e. monopoly price output diagram) is too simplistic as it assumes that one property right covers the entirety of a marketable product. This is not accurate view: a commercially viable product will often be assembled from many products, each covered by its own IPR. IPRs may have an effect on price, entry and the like. But it will not be the simple straightforward effect of creating a monopoly over a discrete product. If one product entails overlapping IP rights, rightsholders must coordinate before a product can be sold on the market. This coordination is the focus of NIE analysis. One idea at the heart of this – transaction costs. Anti-commons: multiple conflicting property rights can create bottlenecks in productive activity. What is the solution? Hand out fewer conflicting entitlements? NO. Need to actively encourage (force?) investment in mechanisms that overcome the “stalemate”, i.e. voluntary transactional institutions such as joint ventures R&D partnerships, corporate venture capital, licensing deals and out-sourcing arrangements. E.g. patent pools Another important dimension of NIE  attention it pays to political institutions. In IP, industry groups are a strong lobby. Interests groups are not simply purchasers of political “outcomes”, i.e. they are not “capturing” legislators. They are providing the information necessary for legislators to draft statutes that take account of complex private relationships wrt IPRs

Personhood

Personhood is an individual justification (like labour) whereby a right or rights is granted to a person over his work on the basis that the work is a manifestation of the creator’s personality, will and expression.

Do personhood justifications justify all types of IP?

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  Trademark: unlikely that legal system will be concerned with protecting the self-actualization and personality of legal persons such as Nike and McDonalds
  
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  Copyright: seems best suited to personhood justifications
  
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    Type of work  seems to justify protection of books, art, music, etc. more appropriately than computer software – a computer software user cannot usually identify the creator whose self is embodied in the program.
    
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    Type of right  Economic vs. moral. Does personhood justify economic rights? Moral rights?
    

Economic vs. Moral rights (in CR)

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  If the work is an embodiment of personality and self and this justifies granting a right over the work, seems to only justify a right which protects the self. Thus, could argue that only protects right to attribution, perhaps destination, right not to have work mutilated. But could one argue also justifies a right to economic benefit? The self needs money in order to survive, flourish and prosper
  
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  Hughes article  Hegel: one cannot alienate himself (e.g. cannot sell himself into slavery). If work embodies oneself, then cannot alienate the work. But economic rights in CR are alienable. One can alienate his entire CR. This is inconsistent with a Hegelian view. Moral rights, on the other hand, are inalienable.
  
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  SH: alternative argument is that personhood justifies economic rights and moral rights as a bundle, but not the economic rights on their own. See highlighted portion of Hughes’ article below.
  

Problem with personhood arguments: rest on romantic vision of intellectual “creation.” A work may be a manifestation of its “creator’s” self, but does it not also embody the “selves” of all those who contributed to the public domain from which the “creator” drew?
Case for Personhood: Theberge

Hughes, “The Philosophy of IP (Personhood)”

Justin Hughes, “The Philosophy of Intellectual Property” (1988), CB I p. 253 Hughes believes that labour and personality theories exhaust the set of morally acceptable justifications of intellectual property He opens with a “universal def’n of intellectual property”: nonphysical property which stems from, is identified as, and whose value is based upon some idea or ideas. Must be some additional element of novelty; though this novelty need not be absolute. What is important is that at the time of propertization the idea is thought to be generally unknown. The res cannot be common currency in the intellectual life of society at the time of propertization. The res is of private origin and can exist privately, only known to its creator. The “inputs” for the res of IP are social but the assembling of the inputs occurs in the mind of the creator. Like all property, IP is an amorphous bundle of rights – however, there are clear limits on that bundle: (1) protection only for physical manifestations of the res; (2) fair use; (3) limited in time; (4) limited rights don’t protect all ideas – not the ordinary or extraordinary. Hegelian Justification This justification posits that property provides a suitable mechanism for self-actualization, for personal expression, and for dignity and recognition as an individual person. Moreover, according to Radin, individuals need control over resources in order to achieve proper self-development and to be a person. In the context of IP, an idea belongs to its creator because the idea is a manifestation of the creator’s personality or self. According to Hegel, acting upon things is a initial step in the ongoing struggle for self-actualization [thus our self-actualization, human will, and ultimately freedom are tied up in the things we create and appropriate]. Socially mandated property rights are a means to protect the individual’s initial attempt to take command of the world. Property rights are necessary to prevent men from eternally trying to protect his first forays at self-actualization from the predation of others. Property becomes an expression of the will, a part of personality, and it creates the conditions for further free action. Personality theory is focused on the subjective relationship between the holder and the thing, compared to labour theory, which is concerned with objective arrangements surrounding production. Intellectual Property under Hegel Hegel posited that “attainments, eruditions, talents and so forth, are, of course, owned by free mind and are something internal and not external to it, but even so, by expressing them it may embody them in something external and alienate them.” Hegel takes the position that one cannot alienate or surrender any universal element of one’s self [thus slavery is not permissible]. Thus, he said that an author is justified in alienating copies of his work – the copy is sold for the buyer’s own consumption; its only purpose is to allow the buyer to incorporate these ideas into his ‘self.’ However, (I think) the author is not justified in alienating the exclusive right to reproduce further copies of that work, because such reproduction is one of the “universals ways and means of expression…which belong to [the author]”, and alienating it would be tantamount to selling oneself into slavery. Problems in Applying the Personality Justification to IP Hughes recognizes two problems  (1) varying degrees of personality in IP; (2) alienation Varying Degrees of Personality in IP Does more personality warrant more property protection? Different categories of IP lend themselves to different amounts of personality. Could justify protection on the basis of ‘net gain’ of personality achieved by the entire system…but this avoids the question of whether all categories of IP are receptacles for personality. Poems, short stories, art, personas, etc. are clearly receptacles of personality. But wrt works such as maps, atlases, and microchips [patents in general in fact] – the creator chooses elements based on efficiency concerns, and not personality concerns. Hughes admits that it is an oversimplification to think that some genres of IP cannot carry personality – i.e. the oversimplification avoids the true issue of the constraints of economy, efficiency and physical environment which limit the rage of personal expression. All genres of personal expression are limited by external constraints. The more a creative process is subject to external constraints, the less apparent personality is in the creation. Moreover, some subtle manifestations of personality may be visible only to people knowledgeable in a particular field [i.e. I cannot associate a chess move with a particular chess player, but other chess players can]. Alienation and the Personality Justification Hughes describes the “paradox of alienation under the personality model of property.” Owner/creator maintains ownership b/c he identifies the object as an expression of his self. Decision to alienate is the denial of the personal link. But without the personal link, the justification for property is absent. So how do we justify the power of the ‘owner’ to determine the object’s future? This paradox is apparent in the right of the owner of IP to alienate the entire property – i.e. all the rights to a TM, CR or patent. If a person genuinely has no personality stake in a work, why should she determine who publishes it, who markets it, or who dramatizes it? The complete alienation of IP is an exercise of rights over property in an act that, by its nature denies the personality stake necessary to justify property rights. This paradox is more acute in the case of IP b/c no thing exists independent of personality. A person is effectively abandoning his personality altogether, which is impermissible according to Hegel who considered alienation of IP as analogous to slavery or suicide. Alienation of copies of the IP doesn’t suffer from same problems as alienation of the entire right. In fact, Hegel’s personality theory, far from objecting to such alienation, provides affirmative justification for it. Alienation promotes the economic well-being of the IP creator. Payments to the creator are also acts of recognition; it is through monetary acknowledgement that an individual is recognized by others as a person. Finally, income facilitates further expression. Two conditions are, however, essential to this justification of alienation: (1) creator of the work must receive public identification; (2) work must receive protection against any changes unintended or unapproved by the creator. These two conditions are moral rights! Hughes makes two observations (criticisms?) about these rights – patent owners are not protected by moral rights – (1) this may reflect an implicit social judgment that there is little (or less) personality in such works; (2) by forbidding alienation of certain right in IP, moral rights systems prevent the complete alienation of the property [SH: or are these just limits on the property…like the other limits that are inherent in it – time limits, etc.?]. Hughes notes that there are no moral rights in American law, however he (1) seems to search for some personality discourse in judgments and IP doctrine [particularly the requirement of ‘originality’ in CR and the institution of trademark generally – the only marks which are protected are those which embody some sort of creativity and personality]; (2) suggests that civil rights (privacy and freedom of expression in particular) might be available to functionally provide some moral rights that protect the personality of the creator as it is manifested in the creation. **Note Hughes’ conclusion re. labour and personality justifications generally – he argues that the labour justification, with its emphasis on value maximization, might legitimate alienation and value exchange w/o safeguarding rights to keep particular objects merely as ‘possessions’. Personality theory might justify rights to protect one’s private property w/o justifying rights to alienate it. In this way, the two theories may compensate for each other’s weaknesses.

Distributive justice/fairness

What is the public domain?

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  Intellectual goods which can be used without permission of an IP right holder
  
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    Works not subject to CR (e.g. CR expired)
    
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    Aspects of works which CR doesn’t protect – bare facts, ideas, pure science
    
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    Legitimate (fair) uses of works
    
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    Patent: disclosure; expired patents
    
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    Trademark: trademarks which have become generic or are no longer used
    
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  Goods in the public domain are not necessarily entirely free. Open source software, for example, can be used without the permission of its creator(s), but those who use it are subject to regulations imposed by license (e.g. all improvements must be deposited back into the public domain).
  

Is the public domain being eroded?

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  Litman argues YES – as CR protections become stronger, the public domain shrinks. Notion of public domain today is couched in negative terms – i.e. that which is “unprotectable”
  
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  Boyle: We are in the middle of a second enclosure movement. Cites examples such as Digital Millennium CR Act, EU Database directive, technological advances which enable encryption (and thus prevent access). First enclosure movement enhanced productivity – this enclosure movement is likely to stifle productivity b/c is limiting access to raw materials necessary to be productive. [Note that some argue that technology = intellectual goods become less rival and excludable and therefore protections should become stronger  Boyle disagrees – tech makes distribution and production cheaper and the market bigger. SH: note parallel to origins of CR – advent of printing press = easy to copy = need CR protection]
  
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  SH: cases like CCH and Feist suggest that courts are not being too expansive with CR. Cdn court decided to be quite expansive wrt fair use.
  

Why should the public domain be built and preserved?

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  Litman  the reality of authorship. Our romantic version of authors as creators is flawed. Authorship is more akin to translation, adaptation and recombination than it is to creation. Authors depend on raw materials that reside in the public domain. Thus, authorship will only be possible with a robust public domain.
  
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  Boyle  Progress and innovation will be slowed if rights are too strongly protected. The cost of raw materials will be prohibitively high = people will not produce.
  
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  SH: distributive justice and fairness argument – we should all have access to works; it makes us better more educated beings and this makes the world a better place. First enclosure movement resulted in a lot of injustice; many people were left out of the enclosures. Here too.
  
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  SH: all of the above justifications can be invoked here (labour, economics)
  
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  Public domain distribution can be more efficient (Litman and music – get rid of the middle man, CD production, shipping, etc. and system is much cheaper and more money will go to the artists).
  

How do public domain advocates respond to the “incentives” argument?

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  Litman: incentives to create are useless if have nothing from which to create; over-protection may actually hinder incentive to create b/c cost of raw materials will be so high
  
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  Boyle: money is not the sole incentive upon which creators act – evidence are collective production movements such as open source software. Some people are driven by innate human love of creation.
  

What mechanisms can be used to ensure a robust public domain?

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  Resolve doubtful cases of infringement in favour of the dft
  
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  Require registration of CR (presumption is that work is in public domain rebutted by registration) and renewal for a fee
  
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  Encourage collective movements (such as open source software – Boyle thinks these are more common than we think)
  
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  Expand fair use/dealing exceptions (CR)
  
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  Idea/expression dichotomy
  
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  Higher standard of originality (SH: but Litman doesn’t like originality standard in the first place – she thinks it is a fallacy built on the romantic vision of authorship)
  
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  Use competition law and/or public interest unconscionability to shut-down anti-competitive licensing arrangements or arrangements which seek to shield public domain info from the public.
  

Response to these public domain theorists  Polk-Wagner

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  stronger rights will not lead to impoverished public domain
  
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  Two points: even fully propertized intellectual goods will contribute to the growth of open information (type 3 information); Information cannot be truly controlled – information cannot be fenced (everyday infringement goes on all the time!)
  

Litman, “The Public Domain”

Jessica Litman, “The Public Domain” (1990), CB I page 215 Litman explains that our copyright law is based on a “romantic model” of authorship which is misguided and misleading. Authors don’t create something from nothing; they do not bring something wholly new into the world. Authorship is more akin to translation, adaptation, and recombination than it is to creation. B/c copyright is premised on this “romantic model,” it often fails to properly account for or recognize the importance of the raw material that all authors use. This raw material resides in the public domain, i.e. the “law’s primary safeguard of the raw material that makes authorship possible.” Many, at least recently, conceive of the public domain in negative terms, i.e. as that which is unprotectible or uncopyrightable. Litman suggests that it should be understood not as the realm of material that is undeserving of protection, but as a device that permits the rest of the system to work by leaving the raw material of authorship available for authors to use. Positive language draws attention to the positive rationales for denying CR protection, negative language draws attention to the negative ones. Litman reviews the popular mode of analysis which holds that property rights in intellectual works are necessary b/c intellectual creations pose a public goods problem – cost of creating the works is often high, the cost of reproducing them is low, and once created, the works may be reproduced rapaciously without depleting the original. If such reproduction is not restrained – authors will be unable to recover costs of creating a work and thus will forgo the creative endeavour. Originality is the keystone of copyright law. One only owns those aspects of his works that he did not copy from someone else. Originality determines the boundaries of the copyright. Easy to state, impossible to apply…therefore boundaries of CR are indeterminate. Content of Public Domain in the copyright context: Works free from CR (created before enactment of statutes, works once subject but CR has since expired), aspects of CRed works that CR doesn’t protect. Vigorous public domain is a crucial buttress to the copyright system; without the public domain, it might be impossible to tolerate CR at all. Litman reviews the historical background of copyright in U.S. – various sets of cases show dedication to the public of aspects of or rights in the CRed work.  Systems cases, Film cases (e.g. “scenes a faire” were left in public domain – common stock of literary composition to which no one can claim literary ownership), Directory cases (these were the exception – courts protected compilations of facts but not facts in other works – rationale seemed to be protection of labour.) In general, courts invoked the public domain when the breadth of the ptf’s asserted property rights threatened, as a practical matter, to prevent many other authors from pursuing their craft. Courts seemed to have recognized that CR should promote the enterprise of authorship and that this goal may at times be inconsistent with protecting or rewarding the individual authors. Theoretical Justifications Recently, there has been pressure for increasing CR protection. Protectors of the public domain have found themselves on the defensive. Notion of “public domain” is now being framed in negative terms – “unprotectible” or “uncopyrightable,” which draws attention away from positive rationales for denying protection. What are the theoretical justifications for non-protection (public domain)? Many justifications are advanced but none is adequate. For example, why don’t we protect facts? Notion that facts should not be protected b/c they are not original and are just “out there” for all is misleading. This notion is called the “Platonic fact precept” and is a fallacy. Facts don’t exist independently of the lens through which they are viewed; they are then no less original than other (protected) elements of a work. Economics provides competing justifications – e.g. give CR to protect value = maybe we should protect facts given how valuable they are; others say however that protecting facts would impose high transaction costs on those who wish to use them later. What explains the “unruly brawl” among economists? In part – the fact that none supports theory with empirical data. Originality This is keystone of CR law – it is used to draw boundaries btwn what is protected and what isn’t. This threshold requirement requires neither newness nor creativity, but merely creation w/o any copying. Litman discusses originality as threshold and draws two conclusions: Concept of originality is a poor substitute for tangible boundaries among parcels of intellectual property b/c it is inherently unascertainable Concept of authorship is synonymous with concept of infringement Re 1) Originality is not very good at settling title and drawing boundaries b/c it is impossible to ascertain whether a given work is original [courts look at substantiality of the similarities and draw conclusions from that]. Analogy to awarding title to disputed cherry tree to person who can make the best cherry pie [b/c deed office doesn’t actually keep records]. So why is originality held in such high esteem? B/c – (1) its symbolic power, rooted in its apparent reflection of what we would like to believe in about authors and the authorship process; (2) its companion – the public domain- dissipates the pressure to draw reliable boundaries. Re 2) Romantic model of authorship  idea that creative works are unique distinct and unrecognizable. Romantic model is implicit in much commentary about ©. Authorship is a more modest achievement; an author’s work is shaped by other works of authorship [though author will generally not recognize the antecedents he/she has absorbed in the past] ORIGINALITY – THE PROBLEM: If we took originality seriously, we would need to ensure that authors’ CRs encompassed only those aspects of their works that were actually original. Would have to dissect each work; authors wouldn’t like this. BUT…absent such dissection, author could claim to own everything embodied in her work = almost every work could be enjoined by the owner of the CR in another and every author would have to solicit the permission of her predecessors. This is just as repellent [b/c would ultimately discourage creation]. [SH: The notion of originality as the keystone of copyright is fundamentally misguided b/c it is based on the romantic model of authorship which, as we have seen, is a fallacy] PUBLIC DOMAIN – THE SOLUTION: To avoid choosing the two, we rely on the public domain. B/c we have a public domain, we can permit authors to avoid the harsh light of a genuine search for provenance, and thus maintain the illusion that their works are indeed their own creations. We can tolerate the grant of overbroad and overlapping deeds through the expedient assumption that each author took her raw material from the commons, rather than from the property named in prior deeds. See good summary paragraph at page 234.

Boyle, “The Second Enclosure Movement and the Construction of the Public Domain”

James Boyle, “The Second Enclosure Movement and the Construction of the Public Domain,” CB I pg 184 First Enclosure movement in England  productivity increased but at significant cost – it was unjust and led to economic inequality, crime and social dislocation We are in the middle of a second enclosure movement – the intellectual commons is becoming commodified. Boyle suggests that recent expansion of IP rights has been remarkable – e.g. EU database directive, Digital Millennium CR Act, etc.  public domain is being eroded. Used to be difficult to violate an IP right (most industry did) – now anyone with a desktop computer can be an infringer. “…old regime of IP, operating upstream as a form of industrial unfair competition policy, has been replaced. IP is now in, and on, the desktop, implicated in routine creative, communicative and just plain consumptive acts that each of us performs every day.” Advent of digital technology does not support expanded rights: Commons of the mind is “non-rival” – can be used by many parties at once and w/o being depleted. It is also non-excludable [which is why we need IP rights as an incentive to create in the first place]. Some argue that w/ advent of digital technology which make copying cheaper, intellectual goods become even less rival and less excludable and thus strength of IP rights should increase. Boyle says this idea doesn’t hold water – b/c technology makes distribution and production cheaper and the market bigger! Expansion of rights may actually slow and harm innovation: WHY? b/c info products are frequently made out of fragments of other info products – if these info products which furnish “building blocks” are strongly protected, the cost of access to raw materials may be so high as to slow innovation. This effect of overpropertization has been dubbed by Heller as the “tragedy of the anti-commons.” Much of the logic underlying the recent pressure to expand IP protection is the notion of INCENTIVES [people will not undertake inventive or creative activity unless they can recover their costs and some profit]. But Boyle questions the necessity of monetary incentives. E.g. of open source software w/ general public license – people are producing and creating even w/o the prospect of $ gain. Economists would say that there are inadequate incentives to ensure continued production. BUT…people keep on producing, perhaps driven by the innate human love of creation. This example suggests that, in the digital economy, we will get distributed production w/o having to rely on the proprietary/exclusion model. Boyle suggest that this collective method of production is in fact far more common than we realize. Problem is that the “peer-to-peer” model that this production is based on is being impeded by the expansion of IP in such docs as the Dig Millennium CR Act. Expansion of IP rights is eroding the public domain. Thus, second enclosure movement (unlike first) will not result in surge in production). It will actually hinder innovation b/c less will be available in the public domain. What is the alternative to the second enclosure movement?  The PUBLIC DOMAIN Defense of the public domain began with David Lange: “not arguing that intellectual property is undeserving of protection, but rather that such protection as it gets ought to reflect its unique susceptibility to conceptual imprecision and to infinite replication. These attributes…require the recognition of two fundamental principles. One is that IP theory must always accept something akin to a “no-man’s land” at the boundaries; doubtful cases of infringement ought always to be resolved in favor of the dft. The other is that no exclusive interest should ever have affirmative recognition unless its conceptual opposite is also recognized. Each right ought to be marked off clearly against the public domain. But what is the public domain?  Boyle emphasizes that there is not one theory of the public domain, but many. His main inquiry seems to focus on the meaning of “free”. Does the public domain include only that which is literally free or that which is free from the exclusive rights of others? Lessig: commons = resource that is free. Not necessarily zero cost, but if there is a cost it is a neutrally imposed or equally imposed cost. They are w/in the reach of members of the community w/o the permission of anyone else. Resources protected by a liability rule rather than a property rule. Most commentators cite open-source example as example of what is contained in public domain. But open-source fits poorly into the old model of the “total freedom” public domain. You may only use open-source code if you comply with certain conditions…i.e. cannot produce based on code and then sell it. There is a price for admission [obligation to make your own incremental innovation and share that innovation with others by putting it back online] Indeed, various theorists of the “commons” have noted that successful commons were NOT entirely free – they ran on norms that were frequently invisible to the legal system but which nevertheless served to avoid the various paradoxes of collective action. SO…the dividing line is not between the realm of property and the realm of the free but rather between the realm of individual control and the realm of distributed creation, management and enterprise.

What is wrong?

1. concept of originality as it is based on a romantic model of authorship – Litman

2. expanded rights hinder production b/c access to raw materials is difficult or expensive

3. our view of IP rights as absolutely necessary incentives is misplaced – people don’t act merely on basis of monetary incentives.

SOLUTION: THE PUBLIC DOMAIN.

Polk-Wagner, “Information wants to be free…”

R. Polk Wagner, “Information wants to be free: intellectual property and the mythologies of control,” CB I p. 147 This article is a response to contemporary critics of IP rights who assert that the control inherent in such exclusive rights is in tension with the development of a public domain of information. A major tenet of this “control-criticism” is the claim that control will reduce the availability of info in the public domain. Polk Wagner argues that there are two major problems with this claim: First, the critics overstate the current and potential effectiveness of this control – is control of information even possible? Second, the critics understate the contribution that even “perfect” control of intellectual creations makes to the public domain. Strong IP rights are likely to increase the content of the public domain rather than decrease it. Polk Wagner suggests that while there may be other reasons to limit the scope and enforceability of IP rights, concern about the withering of the public domain seems not to be one of them. The logic of critics arguments?  IP rights = control. If control limits access, IP rights will be self defeating, b/c w/o access to inputs – outputs will suffer  and there goes the public domain. PW agrees that a rich public domain is important. BUT suggests that the above logic ignores the fact that information cannot truly be controlled – information cannot be fenced! This is the theory of “incomplete capture.” The contributions of Type III information: PW suggests that a particular unit of expression communicates three distinct types of information  (1) core information itself; (2) closely related info (such as improvements or derivations); and (3) indirectly related information, which is only obliquely suggested or stimulated by the core information [this can be broken down into spillover information and stimulative information]. The third category has been largely overlooked by control critics – this information can be used by others to generate further information. The limits then are primarily those of human ingenuity rather than externally placed constraints. Type III information is not appropriable; it cannot be controlled, even by the owner of the Type I information. We cannot underestimate the importance of Type III information – even fully “propertized” intellectual goods will nonetheless contribute, perhaps significantly, to the growh of open information. Limitations on control of information Must consider that there are a number of constraints which limit the ability of an “owner” to control his owned information, even if it is Type I or II  constraints established by the law itself [fair use?], the costs of enforcing rights, social norms, the competitive marketplace [can see these starting at page 1011 of the original]. One must consider, as well, the amount of everyday infringement that goes on all the time [file-sharing, copying software, photocopying books, etc.] Erosions of constraints on control may actually accelerate the building of the public domain, rather than slow it down. Additional control is likely to stimulate additional works. HOW? Directly and indirectly. Indirectly: ability to effectively control can allow content owners to implement price discrim which could in turn ameliorate the deadweight losses of any mkt power conferred on IP owners. Control also allows for flexibility Directly: Those who control informational goods can dedicate them to public domain voluntarily [e.g. open source software movement] PW is not attempting to make the case for IP rights but rather to show that the case against them is unlikely to be made on the basis of control.

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  SH: My question: PW suggests that the public domain will expand when authors/inventors appropriate at abstract level from “controlled works of others.” But what about access problems…if I don’t have access to the core information online, how can I possibly benefit from the “suggested” or “stimulated” information? Furthermore, if I do get access and subsequently do my creating, am I enriching the public domain if my work is protected?
  

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  Also, one problem I have with this article is that he is relying on all the shortcomings of IP rights [e.g. the inability of “owners” of intellectual goods to enforce their rights, the fact that most people get away with small-time infringement] as a defense against those who argue that IP rights are too strong. As well, he dismisses Digital Rights Management as insignificant/not a concern…even though it could create access problems very soon. DL: What if facts and ideas become shrouded by technology such that people aren’t able to access works and therefore create derivative and inspired works?
  

Case Study – Theberge

Directory: pubdocs -> files -> IntellectualandIndustrialProperty
files -> Chapter 1: Property as rights, not thing
files -> Insurance Law – May 4
files -> Contractual Obligations – Prof. Helge Dedek Introduction 1
files -> Constitutional Limits on Criminal Law 1
files -> Antonio Iacovelli Winter 2005 Advanced Criminal Law
files -> Private International Law – Prof. Walsh Summer 2005
files -> Part I – general 5 The Sources of Int’l Air Law 5 Q? How does customary law relate to int’l law?
files -> Topic One Seaworthiness and Common Venture, chapter 15
IntellectualandIndustrialProperty -> I – Introduction a – La nature des droits intellectuels

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