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Many arguments in IP stem from the lesson of John Locke that labor gives right to appropriation. In our modern day, this would probably translate to investment in innovating activity or creative production giving right to appropriation. Professor Mark Lemley had something similiar in mind with his term irreversible investment, citing R&D investment as conferring protection by the patent system.
At a recent conference, Professor Robert Merges looks at the flip side of the issue to address where the IP system should consider (mis)appropriation by non-IP holders. Merges refers to these entities as “remixers;” those who create, distribute, trade, and make derivatives of existing copyrighted works without the owner’s permission. If you read sections of the paper where Merges recounts the arguments against digital copyright, you will find that these remixers sound very much like the free software movement and others opposing IPRs.
Merges does not disagree with remixers per se, he actually finds some value in them. Possibly referring to the legitimitzation of some P2P networks and availability of non-DRM protected online music, Merges writes: “in a market-driven economy... some content producers are giving (away the ability to remix content).” Yet Merges is adamant about not making fundamental changes in copyright law to accommodate remixers. First, because I do not think that is necessary; high enforcement costs and market competition will neutralize much of the potential for copyright law to bog down remix culture. Second, because it would not be fair to the people who create original mass market content to “redistribute” too much of the money they earn from their work. Merges criticizes remixers' proposed reforms in IP policies, who explain their position as “…chilling effect.” Merges continues, and again I find applicability of the arguments here to the open source, free software and software patent debate: ... remixers can and do often proceed on a shaky legal foundation… but it would be wrong to privilege their efforts by giving them the legal right to proceed in an unfettered fashion. The rights will often more properly reside with content creators.
…remixers often have de facto rights to remix (enforcement costs), or voluntary de jure ...rights (legally binding waiver of rights by content creators). But it would not be wonderful to grant them full legal rights to do so for all works, because to do so would deprive original content creators of rights...
Making the simple observation that in light of Locke, “creators of original content deserve some significant rights over that content – property rights” Merges goes on: For Locke, laboring to survive and improve oneself is something like a duty. Because it is central to human existence, it grounds our claims to property. Labor is at the heart of appropriation.
...one who works hard to make something original deserves some rights and therefore a chance at a reward for the work...
… the basic appropriation story is essentially communitarian in nature. Seen in this light, we respect the rights of content creators not despite the interests of the community at large, but because of them... Merges describes the typical arguments of anti-IP advocates for free speech and “revolutionary” movements:
…stories told by strong public domain advocates feature romantic narratives of resistance and rebellion: the brave and lonely battle of the “little guy” against the flat, metallic, and vapid forces of the corporate media machine. Because this narrative fits the contours of the first amendment literature, constitutional values of self-expression are often invoked ….
Casting the self-anointed importance of various remixer movements as “romantic resistance and rebellion” Merges finds that focusing too much on the rights of non-IP holders makes riffraff views “the dominant narrative, wiping out all others.” Merges concludes on protecting current IP in the digital content industries: …the “harm” we suffer because we cannot do whatever we want with some film or record or book must be considered not by itself, but with respect to the dignity and respect we owe to the creators of the work. “but for” their contribution, we would never have the work ….
posted by Noel Le @ 6:05 PM | Access: Commons, Fair Use, Orphan Works, Public Domain, DMCA, DRM & Watermarks, etc., Free Culture Movement, Internet: P2P, Search Engines..., Patents
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