When Rights Collide: Principles to Guide the Intellectual Property Debate

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Is there anything more contentious than the debate overintellectual property (IP) protection? The "Napsterization" of justabout everything digital has one side jumping with joy, and theother claiming the end times are near. Is there any common ground?We'd like to suggest there is, but first everyone must realize thatthere are no clean-cut, easy answers in this debate. Let's start byacknowledging the fact that both sides make some excellent points.This debate is thorny because two important principles collide:legal protection for intangible works butts up against freeexpression and exchange of ideas. IP disputes have always involvedthe fundamental trade-off between these two principles.

The most radical voices have suggested that there is no suchthing as a right to own intangible ideas and, therefore, the wholeregime of limited grants of monopoly is an unjust and outdatedpolitical construct that should be tossed aside. To this line ofthinking, the cost of protecting IP is just another cost of doingbusiness, so why attempt to socialize it?

Of course, the folks in this crowd acknowledge that there isvalue to ensuring that innovators are rewarded for theirintellectual creations. After all, there is merit to the theorythat limited terms of protection provide entrepreneurs with anincentive to generate important life-enriching products and ideas.A good argument can be made that in a world without IP protection,some individuals would be discouraged from producing importantgoods or ideas (consider pharmaceuticals or genetically alteredfoods to feed hungry populations).

On the other hand, the "protect-everything-under-the-sun" folksgo too far when they lobby for excessive terms of protection-whichgo beyond any possibility of motivating creators, who often aredeceased (think Mickey Mouse and The Wind Done Gone)-andseek to expand what is covered by copyright and patent law in thefirst place. One begins to believe record companies would assertthe right to copyright the 12-bar blues chord progression if theycould get away with it. Aggressive protection schemes would requirenothing short of an IP police state and would greatly discourageentrepreneurialism by others.

So, succinctly stated, the problem we face when it comes toissues of IP and the Internet is how to balance artistic andentrepreneurial incentives with the interests of the largercommunity of users in a free, unhindered exchange of ideas andproducts. Again, there are no easy answers, but the followingprinciples can help guide the debate and perhaps create some commonground:

(1) Take the principle "To Promote the Progress ofScience and Useful Arts" seriously: Reasonable people canlegitimately debate the appropriate time periods over which worksshould be protected. Any term set in law will be arbitrary. Butcopyright protection that extends far beyond the life of theoriginator provides diminishing incentives for that person toinnovate. Terms of protection may need to be rethought. We shouldadhere to the Constitution's goal of promoting the progress ofscience and useful arts, not unnecessary government monopoly.

(2) Don't ban new technologies or business models tosolve patent or copyright problems: In the ragingfile-sharing dispute, one side wants to ban or restrictfile-sharing technologies that reduce copyright control. Meanwhilethose who eagerly share copyrighted files often ridicule or condemnexperimental technologies by which copyright holders hope to shieldworks from reproduction, such as digital watermarking, enhancedencryption and attempts to incorporate digital rights managementinto secure hardware. Some users even regard such efforts astechnical threats to free expression (even though they also claimthat encryption or watermarking can always be cracked!).

Policymakers shouldn't ban any category of technology as themarketplace works through these difficult issues. Likewise, forceshould not be used to "aid" the sharing of IP, such as emergingcalls for the imposition of compulsory licensing requirements onrecord companies. Such forced "contracts," with their accompanyingprice controls and regulatory dynamics, have no place in a nascentindustry that desperately needs to embrace voluntary deals. Ifcompanies go too far in locking up information, other companies(and consumers) have the option of dealing with less-restrictiveentrepreneurs. If technology is to contribute to solving theproblems it has created, we must give it that chance. Digitalrights management-while it will never fully prevent copying-canmake it inconvenient enough so that cracking encrypted songs won'tlikely be worth the trouble. Perhaps a twenty-cent download thatalso includes liner notes, lyrics, a photo or two, and discountcoupons on merchandise and concerts is a better deal than a freesong. Both sides should avoid injecting government coercion intothe copyright resolution process as "Napsterization" proceeds.Perhaps technology can be a better means of managing copyright, insome applications, than can law-even if law is in place as abackup.

(3) Remove government barriers to the marketplace'sability to protect intellectual property: To what extentare secrecy and privacy contracts enough? To lessen the reliance ontraditional copyright protections, policymakers should ensure thatgovernment regulations don't stand in the way of private efforts toprotect intellectual property. For example, overzealous antitrustenforcement might hamper collective private efforts to licensesongs. Restrictive contracts that antitrust law might eyesuspiciously could benefit consumers by ensuring returns forproducers. Some academics have suggested that regulation such asantitrust law may force the "need" for more intellectual propertylaw and enforcement than would otherwise be warranted.

The Constitution gives Congress the power to protectintellectual property. Yet the Internet invites new perspectives onthe old models of IP protection. File sharing technology clearlycreates a problem, but an arguably transitory one involving theexisting body of copyrighted work. In the post-Napster world, everymusician and songwriter realizes there exist new methods fordistributing and pricing products. Technology can increasinglyserve as a partial replacement for copyright law for the artists oftomorrow-and today-if they embrace it.