A Fine Balance: Protecting and Giving-Away Content

In general, intellectual property (IP) rights encourage innovation by providing creators with an economic incentive to develop and share ideas through a form of a temporary monopoly. Proponents of traditional IP rights believe that individual creators should not only have a chance to profit from their works but also control how they are used.

In the context of our digital world, however, there are some who see traditional intellectual property rights as a threat to the digital revolution. According to an article by James Boyle, “intellectual property rules actually hamper the ability of the Internet to generate intellectual activity, encourage new methods of innovation, and distribute culture and education worldwide.”

While some have resolved this issue by hopping onto the open-source bandwagon, Professor Robert Merges of Boalt Hall School of Law proposes another solution – in the context of gifting away content – that is a little less extreme. Professor Merges believes that while IP rights should permit owners to contribute their works to collective projects, they should also protect those who want to keep their individual creations from being integrated into large-scale collaborations.

Professor Merges proposes a straightforward mechanism that allows individual creators to waive their IP rights. In a way, this mechanism is similar to the concept of the Creative Commons Organization, which promotes various licenses that have the effect of allowing creators to share their works widely. The biggest problem with the Creative Commons structure in terms of waiving rights is that the licenses are contracts only and thus inherently come with the technical concerns such as notice, privity, etc. The improved mechanism that Professor Merges proposes is to build the waiver mechanism directly into copyright (and patent) law and to create a central online registry that would record waivers and allow them to be searched and verified easily. According to Professor Merges, this mechanism would retain our traditional respect for individual decision making with respect to individual IP rights. This system of waiver would simply carry the principle of autonomy into the era of shared content and collaborative creativity. This hybrid sort of system represents the best of both worlds. It is difficult to see how this system would not appease both critics and proponents of traditional IP rights alike.

While Professor Merges’ solution seems perfect and elegant at first glance, it may only remain so in a vacuum. What happens when external pressures such as societal expectations and consumer demands are exerted? It might very well be that one day there will be so many creators who choose to waive their rights – in the name of the digital revolution – such that those who do not waive their rights are left behind, their creations unnoticed and at risk of falling into the cracks of the online abyss where internet traffic has slowed to a crawl. A choice is only really a choice, when that choice can afford a relatively comparable chance of success – whatever, success may be defined to be. For example, an internet service provider who provides customers with the choice of dial-up for a cheaper rate or cable connection for a more expensive rate is not really providing two equal alternatives in the context of how interconnected we are in the digital world. Those who do choose dial-up are automatically at a disadvantage. They may not be able to capitalize as much on many of the defining features of our digital world such as streaming video, streaming audio, high resolution graphics, etc. As a result, those who choose dial-up are a little less connected than those who choose cable. In the same vein, it is not hard to imagine the digital world becoming dominated with massive central repositories of open source products or works where creators have waived their IP rights. In the event that these repositories become the main go-to place for the general public to browse new creations and works, those who choose not to waive their IP rights might find themselves flying under the radar of the general public and may ultimately be forced to conduct a cost-benefit analysis of whether they should waive their IP rights or not. While the public might be able to search for such works elsewhere on the internet, it may be likely that such searches would never occur – the public expects information to be instant and at their fingertips.

Of course, this is just a hypothetical situation and things like the aforementioned massive central repositories have not happened yet. But my point is that a solution that might seem perfect on its own – in the context of IP rights in the digital world – cannot be looked at in a vacuum and external pressures such as societal expectations and consumer demands must be considered.