Prof. Robert P. Merges, Boalt Hall School of Law, Berkeley
March 25, 2009

I take the participatory, democratic aspects of culture very seriously.  I have devoted some effort to thinking through how the inherited legal structure of IP rights can be adapted and modified to encourage the many new avenues of participatory creativity – the wikis, open source projects, and other forms of what are called “crowdsourcing.”  (See, for example, my essay on “The New Dynamism in the Public Domain,” 71 Chi. L. Rev. 183 (2004) (need for a simple way for creators to dedicate works to the public domain); “Locke for the Masses,” 36 Hofstra L. Rev. 1179 (2008) (need for property theory to account for aggregated labor of crowdsourced products).)

But – and here is where I differ from a fair number of contemporary IP scholars – I also believe that IP policy has a special obligation to promote and encourage professional creatives.  Without the efforts of people devoted full-time to developing and expressing their considerable creative talents, and the large-scale organizations often needed to assemble their individual contributions into sophisticated, refined, and polished form, I believe our collective culture would suffer enormously.

It is these creative professionals who bring us many of the products that become cultural icons and shared touchstones.  Without them, we would have far less shared material to work with.  True, we all in some sense “make culture,” and some of what these professionals work with are received myths, legends, and ancient stories.  But without high-quality contemporary products in accessible form, there would be a lot less material out of which we can construct our shared culture.

This is why I see these professionals as so important.  And because, when they are effective, their works appeal to a mass audience, I do not see this as a particularly elitist view.  They operate, after all, in a market economy.  So their works have to (in many cases) invite acceptance from a wide audience.  And given the rules of IP law, a wide array of participation is also open, from commentary and criticism to emulation (of ideas, not expression of course) and even parody.

One can say a lot of things about popular culture in the United States, but “undemocratic” is not a label that too many would apply.  If it is elitist to show concern for the care and feeding of creative professionals, it is a strange form of elitism: solicitude for the people so often accused of foisting low-brow entertainment on the American people!

Well, maybe it is not undemocratic.  Maybe it is just wrong.  Why do creative professionals deserve special protection?  After all, protecting their works deprives other people of freedom.  Freedom to use those works as they see fit – to mash them up, incorporate them in new (possibly subversive) works, appropriate them and make them their own.  Freedom to participate in the making of their own culture.  How can this deprivation of freedom be justified?

Two ways, I think.  First, by recognizing the importance of high-quality content to a shared cultural experience.  And second, by being critical of the claim that protecting this content makes major inroads on freedom.  The first point I described earlier.  A few words about the second point here.

Freedom is constrained by IP law, no doubt about it.  But not as much as many believe.  IP rights are not generally self enforcing.  So the first protection against serious inroads on freedom is the stubborn fact of high enforcement costs.  This prosaic fact of life for IP owners has very important ramifications for the question of user freedom.  The de facto zone of freedom for consumers of IP – the zone of participatory culture, if you will – is really quite large.  An overly formalistic focus on the “law on the books” (as opposed to “the law in action”) often obscures this.  But it is a fact nonetheless.

The second way freedom is protected is through the market.  People like freedom.  Businesses try to give people what they like.  So if consumers prefer cultural products with a little extra freedom thrown in, some enterprising business is likely to give it to them.  Which means that those who sell cultural products that significantly restrict freedom will either have to make those products especially attractive (to offset the loss of value to consumers occasioned by the greater restrictions), or change their policy on restrictions.  Simple as that.

Put another way, there should be plenty of content available for remixing, mashing up, or otherwise using quite freely.  Some will come from commercial companies, other from amateurs who like remixing and want to promote it.  Not all content will be so freely given out, but a fair amount of it will be.  Where certain works are so canonical that cultural participants feel they must reference the works, i.e., there are no available substitutes with fewer use-restrictions attached, IP law still allows criticism (e.g., an essay or entire website devoted to “Barbie as Ideology”), commentary (an essay on “Countering the Limiting Vision of ‘The Little Mermaid’”), and even parody (a play lampooning Hogwarts Academy and the Harry Potter stories).

But commercial remixes of canonical works can be prevented by IP law.  Does this restrict freedom?  Yes, but for a good reason (to support canonical works) and in a limited way (one may always appropriate ideas from these works, and incorporate those basic ideas into one’s own original work; criticize and comment on them; and parody them).  In my view, these restrictions on freedom are limited, but insofar as they exist, fully defensible.

I understand that some people feel that if they cannot physically mess with content, and put their stamp directly on it, they feel deprived of an important form of freedom.  But I believe that forcing them to work around these canonical works, to comment on them without directly copying elements of them, is not too high a cost.  It is the cost of recognizing the rights of creators of these works.  Rights always come with burdens, and in my view these burdens are not so great so as to justify undermining those rights.

This last point brings me back to utilitarian versus rights-based views of IP law.  The classic critique of utilitarianism applies to IP, I believe: Even if it could be shown that “the greatest number” of people prefer a low level of IP protection, some creators of some works should nevertheless retain a claim that transcends this aggregate group preference.  In other words, we should attend to our language when we talk about “IP rights.”  They really are rights.

If we mean what we say – and I think we should – then IP rights do not depend on a group calculus for legitimacy.  So if that calculus is missing, we need not and should not say that the legitimacy of IP rights is still up in the air.  In addition, even if such a calculus were to come into operation, that should not be the end of the discussion with respect to IP rights.

Even if an aggregate welfare analysis dictated no IP protection for certain works, in my opinion we should stop and consider whether the work’s creator deserves a right-claim over the work.  Maybe a (hypothetical) Rawlsian procedure should be applied, maybe we take a Kantian view (whether granting rights would be consistent with the freedom of all other members of society), maybe we ask the Lockean question (did the creator mix her labor with preexisting material in the public domain, and what effect would a property claim have on subsequent creators and other third parties).

Whatever form it took, I have come to see that the question of IP is about more than just optimizing cultural outputs and balancing the economic preferences of creators and consumers.  It is – also, but importantly – a question of rights.

Looked at this way, protecting high-quality content is justified two ways.  It is a worthwhile restriction on others’ freedom, in light of the importance of high-quality content to our shared culture.  And it is an appropriate expression of the fact that creators of this content deserve actual legal rights.

Comments From Our Readers

Paul Edward Geller: Rob: The Lockean question is, as Justice Story implied, metaphysical. In intellectual matters, it is not susceptible of any precise operational answer. You duck this difficulty in asking whether the creator mixed her or his labor with “public domain” materials. But the hard cases are those of works derived from still-protected works and of improvements on prior and still-patented inventions. Courts might guessimate answers case-by-case in assessing monetary awards for such derivations or improvements without due consent. But when it comes to enjoining creation or innovation, Solomonic wisdom calls for cutting the baby in half in favor of the later creator or innovator: don’t enjoin her or him or her or his licensees! Let’s be clear: this solution means no intellectual property as such, except for cases of slavish or routine rip-offs – beyond that, only liability. See – Cordially, Paul Geller

Fred von Lohmann: There is much that I agree with here. In particularly, I agree that the realties of enforcement costs have traditionally served as a valuable limit on the degree to which IP diminishes freedom.

But enforcement costs have been radically changing in the digital era, and increasingly against the interests of freedom. So, for example, tools like YouTube’s Content ID system (which the rightsholders who signed on to the UGC Principles document appear to believe are, or should be, legally required), make overenforcment easy and the norm.

Nor is your confidence in market forces correcting this overreach being borne out empirically. Warner Music has used the YouTube Content ID tool to block remixes indiscriminately, and has largely turned a deaf ear to the protests, perhaps in part because users blame YouTube. Or perhaps because no one pays attention to who the “label” is when they purchase Warner Music products in other channels? And, of course, market forces are unlikely to protect the interests of niche speakers (critics, parodists, reverse engineers, etc) that we value for independent reasons (nor can “fair use”
rescue them in a world of automated enforcement).

In short, tools like search engines and automated “filtering” technologies make it easier to find putative infringements than ever before. The push to reduce policing costs or shift them to others is likely to make indiscriminate blocking the default norm. And information asymmetries in the market are likely to prevent market forces from disciplining rightsholders who over-block.

That’s the reality on the ground. It suggests that, by your own analytic framework, we have something to worry about.

Patrick Ross: Thank you for this thoughtful post. There are several points I’d
like to wholeheartedly endorse:

1. We *are* talking about rights. Many who would rabidly defend other Constitutional rights are quick to dismiss rights given to all creators. As you point out, it is professionals who benefit in terms of incentives for *potential* profit, although even one with no commercial aim may take issue with work done in a way they dislike (a MoveOn supporter’s Flickr picture being used on a billboard to promote Rush Limbaugh, for example). Empowerment is good for artists and culture.
2. The group calculus is a dangerous one, because it creates a tyranny of the majority, and a game theory scenario where self-interest leads to cultural losses.
3. It seems obvious on its face, but thank you for mentioning that without IP we would have fewer works to repurpose.
4. Fred is right that in agreeing with you that IP enforcement transaction costs can be high. Many IP scholars say they desire a remix culture. Spend five minutes on YouTube and I would say we already have one. There are innumerable mashups that are jump balls as far as whether they are fair use, and none of us can say definitively because there is no court case we can point to as direct evidence. Yet they remain up there. The dancing baby went back up; the harm done to the mother was that for a brief period of time, a universe of strangers couldn’t see her kid, but then they could again. Perhaps remix advocates would like more legal certainty; that is
understandable. But proposals to date have not succeeded in doing so without flipping the rights model away from creators and onto secondary users of creative works.

Thanks again for this thoughtful analysis.