Prof. Robert P. Merges, Boalt Hall School of Law, UC-Berkeley
May 26, 2009

The current literature on IP rights is full of contrasts.  On one side are the champions of the digital revolution, who argue that traditional IP rights are generally unsuited to the new world of digital content.  They claim that the inherited structure of IP rights was designed for an analog world, and so it fits uncomfortably with the new reality of instantaneous, ubiquitous interconnection.

Many go further: They argue that entrenched interests purposely manipulate existing rights and the institutions that support them to stave off or redirect the digital revolution into profitable channels that allow companies in these old-line industries to retain control over content and the technologies that distribute it.

On the other side are a (small) number of observers who see things a bit differently.  For us, conventional IP rights are not just artifacts of a bygone era.  The structure of rights is about more than 19th- and 20th-century industrial history.  What critics see as outdated, we (at least sometimes) see as reflective of a deep respect for individual authors and inventors.

From this perspective, the current structure of IP rights is not (just) a bothersome set of transactional bottlenecks blocking the inevitable triumph of the digital revolution.  It is instead the manifestation of deep underlying principles, including the belief that individual authors should have a chance to profit from their works, and that this in turn entails the right to control how, when, and where those works are used.

This clash of worldviews can be seen all over the world of IP rights these days.  In this post, I want to focus on just one aspect of it: giving away content.

At first blush this might seem a strange topic for someone like me to pursue.  Collaborative content, the leveling aspects of online culture, the open source movement – these themes are central to the discourse of the digital revolutionaries.

They all emphasize the contrast between outdated “proprietary” or “centralized” culture, and the newly dawning era of interconnected, highly democratic culture, which depends on widespread norms of giving away individual claims to facilitate interactive and massively collaborative “works.”  Why would an old-timer like me want to talk about gifting IP rights?

For two reasons.  First, because the digital revolutionaries are right: The ability to instantly and ubiquitously share content is revolutionary, and people are doing exciting things with it.  And second, because, unlike the critics of traditional IP rights, I do not believe that the new-style sharing undermines the rationale for traditional IP rights.

Indeed, I want to argue that with a proper understanding of the legal context of this sharing, we can come to see it not as a threat or challenge to IP rights, but as proof of the flexibility of those rights in practice, and of the still-relevant normative foundation for those rights.

Put simply, the option to give away one’s property is a central feature of any property system.  That many potential owners of IP rights are surrendering their inchoate claims in favor of shared, collaborative participation, does not in any way undercut the rationale for property in the first place.  Instead, it supports it.

And, as important, that many people choose this route does not in any way imply that others must make the same choice.  For just as IP rights permit owners to contribute their works to collective projects, they also protect those who want to keep their individual creations from being integrated into large-scale collaborations.

This freedom to either waive one’s rights entirely, or else hold onto them, for purposes of economic exploitation or simple aesthetic preference, is what property is all about.  And the fact that complete waiver is easy and popular does not imply that this should become the legal default.

To allow this basic element of property – the respect for individual autonomy – to be changed under the pressure of the digital revolution would be a grave mistake.

The right (and wrong) way to give it away

The best way to facilitate sharing while retaining traditional respect for autonomy is to make it easy for owners to waive their rights.  The wrong way to facilitate sharing is to curtail or eliminate those rights in the first place.  The first approach retains the central place of individual choice in the structure of IP rights, while the second way steamrolls individual choice in the name of collaboration.

If the IP system puts effort into retaining traditional rights, while making it simple and easy to share those rights, we get the best of both worlds: traditional ownership and easy sharing.  But if rights are curtailed under the rubric of promoting sharing, the traditional respect for individual autonomy is lost.  The choice we have is really that simple.

Before I briefly describe some straightforward ways to promote sharing, let me deal with two objections to my approach.  The first objection is that the extension of traditional IP protection into the digital realm amounts to a significant expansion of rights.

This claim depends on several facts, especially the (theoretical) ability of rightholders to enforce their rights much more completely in the digital world, thanks to (mostly unrealized) technologies such as digital rights management (DRM).  Because this general argument has been summarized under the heading of “the growth of the permissions culture” (a label associated with digital theorist Larry Lessig), I will address it in those terms.

The second argument, also associated with Lessig (as well as William Fisher and others), is that what is wrong with IP law is not that it tries to provide compensation to creators, but that it allows control by creators.  The solution these observers put forward is to separate compensation from control, typically, in the form of a (highly underspecified) compulsory licensing system for digital content.  I will also consider this idea of ubiquitous compulsory licensing.

The “permissions culture” idea is mostly wrong as a factual matter, I think.  It is quite evident that the online world is not one in which IP rights are easy to enforce, and therefore one in which users of digital content are subject to all sorts of restrictive permissions and licensing procedures.  The declining fortunes of many creative industries whose works are available digitally – from professional music to traditional newspapers – bear this out.

If anything, we could use more automated permissions and compensation systems, not less.  (The Google Booksearch settlement offers some intriguing possibilities in this area, though control of the accounting and compensation system by a single dominant company is somewhat troubling.)

The idea of ubiquitous compulsory licensing fails as well, in my mind, on both practical and theoretical grounds.  Practically, the very difficult question of how the potentially large stream of revenue from online activities would be divvied up among individual creators is one that must be addressed before the viability of this proposal can be realistically assessed.  Based on past experience with compulsory licensing, I am not optimistic.

At the theoretical level, the idea is if anything even worse.  It is very difficult to effectively separate compensation from control; they tend to go hand in hand.  And, crucially, some creators are willing to sacrifice some money in exchange for greater control.  This is an important aspect of the autonomy that ought to accompany all property rights.  While digital holdouts may look hopelessly out of date to some IP theorists, the right to hold out is part of what it means to have a property right.

So how best to balance autonomy with the desire of many creators to share their works?  The answer is simple: Create a straightforward mechanism that allows individual creators to waive their IP rights.  This is the essence of the Creative Commons organization, which promotes various licenses that have the effect of allowing creators to share their works widely.

The problem is that these licenses are only contracts.  A better mechanism would be to build the waiver mechanism directly into copyright (and patent) law, and to create a central online registry that would record waivers and allow them to be searched and verified easily.  This would solve some of the technical problems that accompany the use of contracts to signal a waiver of rights (concerns with notice, privity, etc.).

The net effect would be to retain our traditional respect for individual decisionmaking with respect to individual IP rights.  A robust system of waiver would simply carry the principle of autonomy – so central to the IP system as we know it – into the era of shared content and collaborative creativity.  Traditional legal structures, in service of desirable practices facilitated by the new digital technology: sounds like a good combination to me.