I recently attended a lecture by professor Bruce Ziff, of the University of Alberta Law School, where he described what he termed as his only original academic idea. He posited that the reason we as a society are so restrictive about property rights is because it is basically impossible to extinguish property rights that have already been recognized, therefore the courts are very reluctant to recognize new ones.
The lecture got me thinking about how intellectual property fits into the scheme of recognizing “new” property; as intellectual property is the quintessential form of “new” property and is very quickly being commodified into new de-facto categories of property.
Has the commodification of intellectual property in general created a backlash whereby new arenas of communal rights such as the creative commons have sprung up in response to this phenomenon, or have we entered a new horizon of property law, where intellectual property rights will be recognized despite Professor Ziff’s hypothesis?
In a case such as the Schmeiser v. Monsanto case, it is easy to see a commodification of the “new”. This case, where genetic patents on canola seeds were found to be stronger then property rights, represents the established commodification of a new type of property. Furthermore, the Internet has spurred a new commodification of music with DRM (controlling the use of media), and the increasing commodification of personal information with the monetization of social networking websites like MySpace and Facebook.*
It can be argued that society is waking up to the commodification of the new frontiers of property. New institutions such as the creative commons and the movement towards organic food provide us with a countervail to the commercialization and exploitation of some of the “new” forms of property described above.
However the question remains, what is best for the individual and the consumer?
On the one hand it is easy to argue for the “righteous” individual. The individual that buys organically grown foods, uses the creative commons and shuns corporations (which are necessarily evil).
I argue though that it is not black and white. Taking Professor Ziff’s “only original idea” as fact, that once new forms of property are established and recognized it is near impossible to reverse them, there appears a positive side to the commodification of new forms of property. Allowing the patenting new strains of wheat that are less resistant to adverse weather and yield more harvestable crops provides opportunity for those in the third world who go to sleep at night hungry to possibly sleep with full bellies. The placing of digital rights management on music and movies provides incentives for artists to keep on producing quality work with less fear of their work being bootlegged. And the commodification of personal information on the Internet, if the information is voluntarily divulged, provides incentive for individuals to make new connections in their lives with companies maintaining an incentive to develop new technology to make this even easier.
Maybe the new frontier of property is not really new, and the fear of the irreversibility of new types of property is not really a valid one. With every new advance in technology throughout history, there has always come new challenges how to effectively protect the advance from copycats and secure the rights to the advance so that profits may follow, and incentives for more advances are created.
So, while joining the creative commons and buying organic are definitely backlashes against what might be the hyper-commodification, and establishment, of new forms of property, there must also be perspective that both viewpoints can live in harmony. If someone doesn’t buy organics it doesn’t mean that they don’t care for the environment, just as if one does it doesn’t mean that they are against finding new options to alleviate hunger. The backlash to the commodification of new forms of property is natural. So, go out and buy your brand name organics, but please do it while listening to the newest indie band on you iPod after having lunch with the new guy/girl you just met on Facebook, because although it is tough to abolish property rights that have been recognized, it is also futile to fight the tide of the “new” intellectual property rights that will drive our economy in the 21st century.
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*Percy Schmeiser and Schmeiser Enterprises Ltd. v. Monsanto Canada Inc. and Monsanto Company [2004] 1 S.C.R. 902
One Response
The proposition raised by Professor Ziff with respect to recognizing new property rights is an interesting one. While I agree with Jamie’s point that commodifying new forms of property is not intrinsically a negative development in Canadian law, I do not think that it is necessarily an inevitable one. There is arguably a strong line or reasoning that suggests the differences between intellectual property and “tangible” property (real property and chattels) warrant relatively limited proprietary protections for IP.
Firstly, IP is not inherently scarce in the sense that tangible property is. Traditional property rationales assert that legal protection should be stronger where commodities are scarcer because scarce objects are inherently valuable and difficult or impossible to replace. IP, which is not inherently scarce, thus does not warrant full proprietary protections.
Secondly, there cannot be “theft” of IP in the traditional sense, since making a copy of a book does not deprive the copyright owner of the original work. IP is inherently non-exclusive whereas tangible property is inherently exclusive. Therefore extending stronger proprietary rights to IP may be unjustifiable under traditional property law rationales because IP cannot be stolen.
While there is some existing uneasiness regarding increased proprietary rights for IP, this apprehension seems particularly justified in light of Professor Ziff’s theory. If there is uncertainty now about what legal rights IP should attract, the fact that it is essentially impossible to extinguish property rights once recognized strongly suggests added caution in granting additional proprietary protections for IP.
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