Is there a special need for a politics to protect the public domain? What might such a politics of intellectual property look like?
The intellectual property scene today is just like the American environmental movement in the 1950s. A rag-tag bunch cared about the park system; there were hunters and birdwatchers. Burning rivers and oil spills drew flurries of outrage. Just so, the intellectual property world has start-up software engineers, libraries, appropriationist artists, biotech researchers, who get worked up about Microsoft's allegedly anti-competitive practices or the problematic morals of patenting human genes. Lacking, though, is a general framework. Intellectual property issues need analytic tools to enable a perception of common interest, in apparently disparate situations, that cut across traditional oppositions. What kinds of tools are we talking about? Let's turn to the environment for help.
The environmental movement was deeply influenced by two basic analytical frameworks. The idea of ecology (the fragile, complex and unpredictable interconnections between living systems) and the idea of welfare economics (how markets can fail to make activities internalise their full costs). Combined, these ideas yielded a powerful and disturbing conclusion. Markets would routinely fail to make activities internalise their own costs, particularly environmental costs. And this failure would, routinely, short-circuit fragile ecological systems, with ugly consequences.
The combined analytic helped to provide the environmental movement with agenda, rhetoric and a perception of common interest underneath its coalition politics. Those ideas flitered into mainstream American politics. Environmental groups played their part, through the dramatic theatre of a Greenpeace protest, or the tweety respectability of the Audubon society. To me, this suggests a strategy for a politics of intellectual property.
In both areas, the recipe for failure in the decision-making process is the same. In a democracy, bad decisions are primarily made by and for a few stakeholders (land-owners/content providers). Think of the costs and benefits of acid rain generating power or, by analogy, of retrospectively increasing copyright term limits on works for which copyright had expired, pulling them back out of the public domain.
Then there are the failures in the way we think about issues. The environmental movement pointed out that there were structural reasons for bad environmental decisions. The same is true about the public domain. In economic analyses of information issues, the source-blindness of an 'original author'-centred model, and the political blindness to the importance of the public domain as a whole come together to make the public domain disappear, first in concept and then, increasingly, as a reality.
Here, too, the environmental movement offers useful practical reminders. One cannot merely write a Silent Spring or a Sand County Almanac and hope the world will change. Environmentalists piggy-backed on existing sources of conservationist sentiment. They built coalitions between those who might be affected by environmental changes.
However, for environmental problems, some of the transaction costs of investigation and political action are overcome through expert agents, both public and private. Right now, there isn't a single organisation whose main task is to protect and preserve the public domain. This should change.
Some might object: can I at all compare the politics of intellectual property to the politics of the environment? After all, environmental problems could actually destroy the biosphere, and this is just...well, intellectual property. This reaction has partly to do with a failure to adjust to the importance that intellectual property has, and is going to have, in an information society. A 'bad' intellectual property regime could:
Lead to extraordinary monopoly in the software industry, as copyright and patent trump antitrust policy.
Extend intellectual property rights even further over living organisms, including the human genome.
'Privatise' words, images or texts that are currently in the public domain, to the detriment of public debate, education and equal access to information.
Some of these things have not yet come to pass, and not all of them will. There are court and regulatory decisions that cut against protectionist tendencies. Recent organising efforts around the Net, cultural property, pharmaceutical and fair use issues have markedly improved the discourse. Nevertheless, the current situation warrants what one might call precautionary alarmism. It would be a shame for the fundamental property regime of the information economy to be constructed behind our backs. We need a politics -- a political economy -- of intellectual property, and we need it now.
James Boyle is William Neal Reynolds Professor of Law at Duke University, USA