The future of copyright: an 'undiscovered country'

In a speech at Sandra Day O'Connor's Conference on the State of the Judiciary, Alan Greenspan held forth on the importance of capitalism and property rights in the context of the financial meltdown. While many have argued that Greenspan himself bears substantial blame for the meltdown because of his support of unregulated derivatives trading, I was interested in a brief comment he made about intellectual property.

In a speech at Sandra Day O'Connor's Conference on the State of the Judiciary, Alan Greenspan held forth on the importance of capitalism and property rights in the context of the financial meltdown. While many have argued that Greenspan himself bears substantial blame for the meltdown because of his support of unregulated derivatives trading, I was interested in a brief comment he made about intellectual property.

Given his support for property rights, I doubt he would advocate a fundamental retooling of intellectual property, yet he suggests that IP is in for serious review in the coming years.

Arguably, one of the single most important economic decision our lawmakers and courts will face in the next twenty-five years is to clarify the rules of intellectual property.

More than a retooling, though, we may come to consider property the wrong legal metaphor for protecting original ideas. For instance, creative output could be considered a contract, that is to say, a license. An artist offers a product to the marketplace; certain people accept the offer to, say, download a song for a price. They have a contract with restrictions regarding redistribution. The content is licensed for certain use. If you violate the terms, you've breached the contract and we have well-known remedies for that. If you use the content without obtaining a license, you have interfered with someone's prospective gain; that's a tort.

The point is that the idea of intellectual "property" goes to the core of Enlightenment thinking about individual rights and the state. As Greenspan points out, the 18th century new idea that individuals can own, sell and devise property without appeal to the crown is the key to the birth of capitalism and hence democracy. Marxism's reassertion of the state (or the collective) as the owner of all property was an intellectual return to feudalism and the proof of that is in the serf-like conditions most people toiled in the Communist world.

But of course the downside of property ownership is that only an elite of society may have the means to purchase and develop property. When that happens, you also have the robber barrons replacing the crown (or the Party) but most people remain as serfs (as in the case of industrial workers) or mere consumers (post-War America.)

What the Internet has brought, in the realm of IP, is a radical realignment of the old ideas about individual property and the tyranny of the collective. Greenspan quotes a 1970 Harvard Law Review article by then-Prof. Stephen Breyer that called for a rethinking of property:

“[T]he case for copyright . . . rests not upon proven need, but rather upon uncertainty as to what would happen if protection were removed. One may suspect that the risk of harm is small, but the world without copyright is nonetheless [in the words of Hamlet] ‘undiscover’d country’ which ‘puzzles the will, / And makes us rather bear those ills we have / Than fly to others that we know not of.’”

Of course, I don't know what that new country looks like either, but I suspect the model is something like mandatory licensing. "You have created something; you have certain rights to monetize it. But they are not property rights; rather they are contractual, licensing rights."

Such rights would enable new creators to use content creatively yet continually profit the original creator in reasonable sums.

Just a thought.

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