When Rights Collide: Principles to Guide the Intellectual Property Debate

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Is there anything more contentious than the debate over intellectualproperty (IP) protection? The "Napsterization" of just about everythingdigital has one side jumping with joy, and the other claiming the end timesare near. Is there any common ground? We'd like to suggest there is, butfirst everyone must realize that there are no clean-cut, easy answers inthis debate. Let's start by acknowledging the fact that both sides make someexcellent points. This debate is thorny because two important principlescollide: legal protection for intangible works butts up against freeexpression and exchange of ideas. IP disputes have always involved thefundamental trade-off between these two principles.

The most radical voices have suggested that there is no such thing as aright to own intangible ideas and, therefore, the whole regime of limitedgrants of monopoly is an unjust and outdated political construct that shouldbe tossed aside. To this line of thinking, the cost of protecting IP is justanother cost of doing business, so why attempt to socialize it?

Of course, the folks in this crowd acknowledge that there is value toensuring that innovators are rewarded for their intellectual creations.After all, there is merit to the theory that limited terms of protectionprovide entrepreneurs with an incentive to generate important life-enrichingproducts and ideas. A good argument can be made that in a world without IPprotection, some individuals would be discouraged from producing importantgoods or ideas (consider pharmaceuticals or genetically altered foods tofeed hungry populations).

On the other hand, the "protect-everything-under-the-sun" folks go too farwhen they lobby for excessive terms of protection—which go beyond anypossibility of motivating creators, who often are deceased (think MickeyMouse and The Wind Done Gone)—and seek to expand what is covered bycopyright and patent law in the first place. One begins to believe recordcompanies would assert the right to copyright the 12-bar blues chordprogression if they could get away with it. Aggressive protection schemeswould require nothing short of an IP police state and would greatlydiscourage entrepreneurialism by others.

So, succinctly stated, the problem we face when it comes to issues of IP andthe Internet is how to balance artistic and entrepreneurial incentives withthe interests of the larger community of users in a free, unhinderedexchange of ideas and products. Again, there are no easy answers, but thefollowing principles can help guide the debate and perhaps create somecommon ground:

(1) Take the principle "To Promote the Progress of Science and Useful Arts"seriously: Reasonable people can legitimately debate the appropriate timeperiods over which works should be protected. Any term set in law will bearbitrary. But copyright protection that extends far beyond the life of theoriginator provides diminishing incentives for that person to innovate.Terms of protection may need to be rethought. We should adhere to theConstitution's goal of promoting the progress of science and useful arts,not unnecessary government monopoly.

(2) Don't ban new technologies or business models to solve patent orcopyright problems: In the raging file-sharing dispute, one side wants toban or restrict file-sharing technologies that reduce copyright control.Meanwhile those who eagerly share copyrighted files often ridicule orcondemn experimental technologies by which copyright holders hope to shield

works from reproduction, such as digital watermarking, enhanced encryptionand attempts to incorporate digital rights management into secure hardware.Some users even regard such efforts as technical threats to free expression(even though they also claim that encryption or watermarking can always becracked!).

Policymakers shouldn't ban any category of technology as the marketplaceworks through these difficult issues. Likewise, force should not be used to"aid" the sharing of IP, such as emerging calls for the imposition ofcompulsory licensing requirements on record companies. Such forced"contracts," with their accompanying price controls and regulatory dynamics,have no place in a nascent industry that desperately needs to embracevoluntary deals. If companies go too far in locking up information, othercompanies (and consumers) have the option of dealing with less-restrictiveentrepreneurs. If technology is to contribute to solving the problems it hascreated, we must give it that chance. Digital rights management—while itwill never fully prevent copying—can make it inconvenient enough so thatcracking encrypted songs won't likely be worth the trouble. Perhaps atwenty-cent download that also includes liner notes, lyrics, a photo or two,and discount coupons on merchandise and concerts is a better deal than afree song. Both sides should avoid injecting government coercion into thecopyright resolution process as "Napsterization" proceeds. Perhapstechnology can be a better means of managing copyright, in someapplications, than can law—even if law is in place as a backup.

(3) Remove government barriers to the marketplace's ability to protectintellectual property: To what extent are secrecy and privacy contractsenough? To lessen the reliance on traditional copyright protections,policymakers should ensure that government regulations don't stand in theway of private efforts to protect intellectual property. For example,overzealous antitrust enforcement might hamper collective private efforts tolicense songs. Restrictive contracts that antitrust law might eyesuspiciously could benefit consumers by ensuring returns for producers. Someacademics have suggested that regulation such as antitrust law may force the"need" for more intellectual property law and enforcement than wouldotherwise be warranted.

The Constitution gives Congress the power to protect intellectual property.Yet the Internet invites new perspectives on the old models of IPprotection. File sharing technology clearly creates a problem, but anarguably transitory one involving the existing body of copyrighted work. Inthe post-Napster world, every musician and songwriter realizes there existnew methods for distributing and pricing products. Technology canincreasingly serve as a partial replacement for copyright law for theartists of tomorrow—and today—if they embrace it.