“INTELLECTUAL PROPERTY”.
DOES OWNERSHIP ENCOURAGE CREATIVITY?
(Sociological approach)
International University College of Turin
Jovita Stagniūnaitė, 2010 Torino
Abstract
Since the issuance of the first Copyright Act (the Statute of Anne) in 1709, theory that ownership of
knowledge leads to progress in all spheres of human life including art, literature, science and
economy was dominant, if not the only one. Clear tendency to expand the scope of “objects“ that
can be “owned” was deemed to be self-evident as the fact, that such system, can only be ensured
by regulatory state apparatus and increasing number of mandatory rules (legislation). However
emergence of the Internet in the year 2000 has dramatically changed face of copyright law and
revealed limitation of its possibilities to cope with challenges of new digital era. In today's world
protection of patents also is seen not as accelerator of inventions, but as serious obstacle to time
saving and efficient scientific research. Response to intellectual property regime's limitation sand
legislation's incapability to effectively deal with changing environment was self-regulatory
initiatives such as Creative/Science Commons movements opposing to traditional understanding of
intellectual property rights regime promoted by WIPO. Therefore, the purpose of this work is to try
reveal why proprietary view towards knowledge and information appeared to be insufficient and to
examine social changes that lead to establishing present system of intellectual property's
regulation. The ultimate goal of this work is to introduce expanding self-regulation and determine
the need of institutional framework to this regulation.
TABLE OF CONTENTS
Abstract.................................................................................................................................................1
TABLE OF CONTENTS......................................................................................................................1
INTRODUCTION................................................................................................................................ 2
2. DOES PROTECTION OF INTELLECTUAL PROPERTY ENCOURAGE CREATIVITY?........4
2.1. Before existence of copyright laws – free dissemination of knowledge..............................4
2.2. Introduction and expansion of copyright laws – pros and cons .......................................... 5
2.3. Self-regulation initiatives – society's answer to crisis of intellectual property....................9
CONCLUSION.................................................................................................................................. 12
Bibliography....................................................................................................................................... 13
1
INTRODUCTION
Since the 1709 when united parliaments of England and Scotland issued 1 the first Copyright Act also
known as the Statute of Anne, the theory that ownership of knowledge leads to progress in all spheres of
human life including art, literature, science and economy was dominant, if not the only one. Even the title of
mentioned act claimed that it is "An Act for the Encouragement of Learning, by vesting the Copies of
Printed Books in the Authors or purchasers of such Copies, during the Times therein mentioned".2
Understanding what kinds of knowledge can be “owned” and reasoning why it should be so, evolved
through time, but clear tendency to expand the scope of “objects“ that can be “owned” stating that it leads to
“fair” and “efficient” system was deemed to be self-evident as the fact, that such system, can only be
ensured by regulatory state apparatus and increasing number of mandatory rules (legislation). In spite of the
fact that term “intellectual property” to most of us still seems unquestionable, “by the emergence of the
Internet, and since about the year 2000 copyright law has been pushed in a new direction, regulating access
to tools in a way much more arbitrary than anyone in the pre-digital age could have imagined.”3 Protection
of patents also is seen not as accelerator of inventions, but as serious obstacle time saving efficient scientific
research.
Increasing number of self-regulatory initiatives such as Creative/Science Commons movements
demonstrates that strict, centralized regulation of knowledge's circulation is neither exceptional, nor selfevidently efficient. Even the policy of the World Intellectual Property Organization (WIPO) is criticized as
not corresponding its own aim - “to develop a balanced and accessible international intellectual property
(IP) system, which rewards creativity, stimulates innovation and contributes to economic development while
safeguarding the public interest.”4
As voices of the whole range of scholars and practitioners encouraging to remember that knowledge
is a common of the whole society, but not the property of separate individuals become louder, this paper also
analyzes phenomena of knowledge owning and its reflections in society. It also seeks to examine changes
that lead to establishing present system of intellectual property's regulation and see if ownership of
knowledge necessarily encourages creativity. Another aim of this work is introduce expanding selfregulation and determine the need of institutional framework to this regulation.
In spite of the fact that sociological approach dominates in the whole paper it was difficult to avoid
some historical comparisons. Case studies in this paper go along with analysis of legal regulation and
today's self-regulatory movements reminding us about informational commons.
1 Act came into force in 1710.
2 Karl-Erik Tallmo. The Misunderstood idea of Copyright. Computer Sweden, September 2005.
http://www.copyrighthistory.com/anne.html
3 Rasmus Fleischer. The Future of Copyright June 2008. URL
http://www.cato-unbound.org/2008/06/09/rasmus-fleischer/the-future-of-copyright
4 http://www.wipo.int/about-wipo/en/what_is_wipo.html
2
1. OWNING KNOWLEDGE
Statement that knowledge is something valuable, precious, expensive is indisputable. This way
described object naturally gives us association with ownership. But can the most precious objects be owned?
Even leaving aside more general and philosophical question about ownership of the most precious, its is
interesting to discuss phenomena of knowledge owning and its reflections in society.
Answer to a question - can knowledge be owned – most likely would depend on the time at which
the question is asked. Time in this case is important not only as particular date, but also as indicator of
economic situation. For example in societies based on land and agricultural economy (in 1800's) or industry
(after industrial revolution in 1900) owning knowledge was not the key element in order to be rich and
powerful, even though possibility to own knowledge (mainly in a form of copyright) existed. 5 Now, in the
twenty-first century, knowledge is understood as the base of economy, therefore ownership of knowledge
(the more, the better) should be the aim of every efficiency-seeking member in our society. But
paradoxically some of us are no more homogeneously moving towards commodification of all previously
hardly imaginable forms of knowledge.
Almost unanimous aspiration to expand the scope of legally protected and owned knowledge is no
longer true. Since Internet and globalization leading to incredible spread of knowledge became unavoidable
elements of our reality, part of society has turned back claiming that knowledge should be shared an treated
as commons as it was before making fundamental mistake - presuming that knowledge can be owned. As
Cory Doctorow6 argues "Intellectual Property is one of those ideologically loaded terms that can cause an
argument just by being uttered (...) it is, at root, a dangerous euphemism that leads us to all sorts of faulty
reasoning about knowledge.(...).”7
Before trying to understand and if the crisis that “intellectual property rights” regime is experiencing
at present time, was inevitable because of failure to obey this fundamental rule, it is logical to determine
what lies under seems so familiar term of “intellectual property.”
As it stated on the web page of WIPO 8, Intellectual property refers to creations of the mind and is
divided into two categories: Industrial property, which includes inventions (patents), trademarks, industrial
designs, and geographic indications of source; and Copyright, which includes literary and artistic works
such as novels, poems and plays, films, musical works, artistic works such as drawings, paintings,
5 A very condensed version of copyright history could look like this: texts (1800), works (1900), tools (2000). Originally the law
6
7
8
was designed to regulate the use of one machine only: the printing press. It concerned the reproduction of texts, printed matter,
without interfering with their subsequent uses. Roughly around 1900, however, copyright law was drastically extended to cover
works, independent of any specific medium. (The Future of Copyrigh, by Rasmus Fleischer, June 2008).http://www.catounbound.org/2008/06/09/rasmus-fleischer/the-future-of-copyright/
Cory Doctorow is a Canadian blogger, journalist and science fiction author who serves as co-editor of the blog Boing Boing. He
is an activist in favor of liberalizing copyright laws and a proponent of the Creative Commons organization, using some of their
licenses for his books. blog: craphound.com, roup blog: boingboing.net
Cory Doctorow. You Can't Own Knowledge.The Bookseller: 150 Years. June 2008. http://freesouls.cc/essays/05-cory-doctorowyou-cant-own-knowledge.html
The World Intellectual Property Organization (WIPO) is a specialized agency of the United Nations.WIPO was established by the
WIPO Convention in 1967 with a mandate from its Member States to promote the protection of IP throughout the world through
cooperation among states and in collaboration with other international organizations. WIPO currently units 184 Member States,
i.e. over 90 percent of the countries of the world. shttp://www.wipo.int/about-wipo/en/what_is_wipo.html
3
photographs and sculptures, and architectural designs. 9
Even without detail analyses of each mentioned creation of the mind it is clear, that today almost all
creations of mind that have been materialized (expressed) can be owned. In spite of the fact that regime of
intellectual property does not “protect” ideas, it is becoming more and more difficult to use ideas, that come
to your head. Often you can discover that the same idea you would like to call your own was already
embodied by someone else and is already protected by copyright or patent. But if it happens (and not so
rarely) that a few members of the society can come up with the same ideas, can it be, that ideas and
knowledge is not something personal, but something that all members of group (let's call this group society)
share?
Soraj Hongladarom10 who opposes to claims that knowledge can be understood separately from
society says, that “instead of residing within someone’s mind, knowledge is something that emerges out of
what individuals in a group do together.” Presuming that this idea is correct naturally we discover confusion
-“how can one own and commodify what is essentially shared?” 11 Ideas of different scholars, claiming that
knowledge can not or should not be owned and commodified paradoxically evolved together with
intellectual property rights regime. However such situation can be quite easily explained if economical
factors are taken into account. History has seen many times when “artificial” idea which even may be called
contradictory to clear thinking, became the basic stone for building entire system of legal rules.
However following aim of this work is not to determine which attitude is wrong or right. Its purpose
to discus the effect of intellectual property laws in today's society and see if intellectual property rights
regime (mostly attention is focused on copyright) can be justified as encouraging positive developments in
our cultural, academic, and economic growth.
2. DOES PROTECTION OF INTELLECTUAL PROPERTY ENCOURAGE CREATIVITY?
2.1. Before existence of copyright laws – free dissemination of knowledge
Previous chapter of this work very briefly reminded, that situation when knowledge is owned and
information does not have status of commons in comparison is new to the word and that the evolution of the
term intellectual property regime needs explanation as well as the term itself has to be unpacked as any
other fiction.
In old times our society had much more things that were used as commons and knowledge
undoubtedly was one of them. Information was freely disseminated and freely copied, people easily shared
cure methods, working experience and no one could even imagine that this kind of information can be
9 Rights related to copyright include those of performing artists in their performances, producers of phonograms in their
recordings, and those of broadcasters in their radio and television programs.
10 Soraj Hongladarom is Director of the Center for Ethics of Science and Technology and an associate professor of philosophy at
Faculty of Arts, Chulalongkorn University. His research interests include epistemology, philosophy of language, logic, as well as
problems arising from the relationship between philosophy and literature. His major concern at the moment is on the problems
arising from the interplay between modern science and Thai culture.
11 Soraj Hongladarom Can Knowledge be owned and commodified.
http://chula.academia.edu/SorajHongladarom/Papers/207314/CAN-KNOWLEDGE-BE-OWNED-AND-COMMODIFIED-
4
owned by excluding (or seeking to exclude) others from using it.
Even if some information/knowledge that has commercial value was protected it was done in
completely other way that it is now. In general, the only way to protect knowledge was to conceal it by not
letting other people know. “Trade secrets” were kept by not disclosing certain skills that are the most
important competing with other traders. Such attitude towards protection of knowledge was less confusing
than today's, because there was real possibility to exclude somebody from “knowing”, at least to some
extent. No doubt, that knowledge even if called intellectual property, differ from regular property being not
inherently "exclusive" and by trying to protect already know things we always meet the problem. “If you
trespass on my land, I can throw you out (exclude you from my home). If you steal my car, I can take it back
(exclude you from my car). But once you know my song, once you read my book, once you see my movie, it
leaves my control.”12
All anti-piracy advertisements claiming that “you would not steel a car” in general try to associate
music, software or other so called intellectual property with regular property, this way illustrating that
human mind needs extra explanation why it is wrong to download or otherwise gain non-material objects
(songs, software, ect.) that are already know. In old times publicly known and non-material knowledge was
allowed to circulate freely and such problem simply did not exist.
Even the attitude towards copying was different. Soraj Hongladarom gives us an example perfectly
illustrating that free copying, especially of religious texts was encouraged. “The Buddhist canon (...), was
freely copied and distributed; those who did so were believed to accrue a large amount of merit. Copying
and distributing the scripture was seen as a good thing, (…). In fact to copy a text means that the copier is
paying respect to the text itself. The text is believed to contain the truth and there is absolutely nothing
wrong in propagating the truth in copying it.”
It is important to stress, that in old times there was always a clear distinction between trade secrets
belonging to certain professions or guilds, and common, public knowledge, which was freely disseminated
and freely copied.13 Protection from copying was exception, but not the dominant rule. Of course knowledge
has not only differences, but also similarities with regular (material) property and it is pointless to deny that
there were some socially recognized interests in knowledge. “It can be valuable and sometimes you need to
invest a lot of money and labor into its cultivation and development in order to realize that value.” 14
Therefore even old times the necessity to protect the investment that was made and to reward investor in
order to encourage further creativity or scientific interest was recognized.
2.2. Introduction and expansion of copyright laws – pros and cons
Knowledge similarities with regular property and need to encourage creativity together with economic
changes encouraged legal protection of copyright, patents and trademarks. Copyright laws were adapted
12 Cory Doctorow, You Can't Own Knowledge. http://freesouls.cc/essays/05-cory-doctorow-you-cant-own-knowledge.html
13 Soraj Hongladarom Can Knowledge be owned and commodified.
14 Cory Doctorow, You Can't Own Knowledge. http://freesouls.cc/essays/05-cory-doctorow-you-cant-own-knowledge.html
5
with presumption that they are the engine of progress. Till today most of the Copyright Protection
Associations all around the world claim that Copyright protects the expression of an idea; it encourages
people to create. And for quite a long time it was hardly deniable true - Copyright Laws successfully
promoted authorship and art, it quite good adapted to numerous changes in technology, such as shift from
the printing press through the vinyl record to the CD, the digital file, but challenges of the Internet remains
an issue.
At present time copyright appeared in crisis. Numerous studies demonstrate, that copyright laws
mostly serve the interests of the whole range of related entrepreneurs such as publishers, broadcasting
organizations, film producers, phonogram producers, but not the authors. As it it noted in Study “Copyright
Contract Law: Towards a Statutory Regulation?” that investigated copyright situation in Netherlands and
three neighboring counties Germany, France, and Belgium situation is not favorable to authors: “partly as a
consequence of the high level of concentration in the media sector, authors and performing artists find
themselves in a structurally weaker bargaining position. This easily leads in practice to the use of unilateral
standard form exploitation contracts, in which too little consideration is given to their interests. The call for
the legal protection of authors and performing artists has been heard louder and louder over the last few
years, with a view to arming authors and performing artists against such practices.” 15 It would be difficult
to deny that initially prosperous idea to encourage creativity by protecting authorship with more and more
limitations turned into reality, when profit of publishers, broadcasting organizations, film producers stand an
the first place. Moreover problems can not be solved simply by pushing forwards a few restrictions more.
“There is something for everyone to dislike about early twenty-first century copyright” - as Tim Wu argues
in his work On Copyright’s Communications Policy.16
Some authors (legally speaking owners of content) unsatisfied by the fact that new technologies have
made infringement of their rights very easy, have an opinion that balance can be restored only by
introducing new technics and remedies, because otherwise we will loose works of possibly best quality.
“Most academic critics complain, instead, that a newly enlarged copyright and new mechanisms of
technological self-help give content owners unprecedented levels of control over content. Copyright, these
critics argue, has overgrown its proper boundaries.”17
Large number of articles on the Internet illustrates that at first sight different positions have the same
goal – to ensure further encouragement of creativity, progress of science. However different groups of our
society have different visions how this can be done. Dominant view is that increasing number of restrictions
does not help and even stops creativity and progress in science. Numerous voluntary initiatives such as
Creative Commons, Open Source or Copyleft movement that are becoming more and more popular also
support this view.
15 “Copyright Contract Law: Towards a Statutory Regulation?” Study conducted on commission for the Department of Scientific
Research and Documentation Centre (WODC) Ministry of Justice The Netherlands by Prof. mr. P.B. Hugenholtz Dr. L. Guibault.
http://www.ivir.nl/publications/hugenholtz/Summary%2005.08.2004.pdf
16 Tim Wu, On Copyright’s Communications Policy. http://web.si.umich.edu/tprc/papers/2003/257/OCCP.pdf
17 Tim Wu, On Copyright’s Communications Policy. http://web.si.umich.edu/tprc/papers/2003/257/OCCP.pdf
6
Patent laws have also overcome their initial purposes and not in the best possible way. “ Patent laws
were intended to promote the publication of useful ideas, at the price of giving the one who publishes an
idea a temporary monopoly over it—a price that may be worth paying in some fields and not in others.”
Range of patentable objects was increasing and now one can patent even DNA! Probably it is true to say,
that even some most active promoters of patents protection did not expect such development. These
practices seems a big danger because of the possibility to monopolize living organisms. If at first conscious
part of society was concerned about commodification of knowledges, now it is concerned about
commodification of life forms. Non-profit organizations and activists claim that “patenting of life forms
should be considered unethical because: it fosters biopiracy of indigenous resources turns life forms into
commodities to be used for profit hinders the free-flow of scientific research destroys economic
sustainability of developing nations.”18
Even leaving aside ethical and religious questions, it is evident that patents more and more often serve
as an obstacle to efficient development. In numerous articles this phenomena is called “the tragedy of the
anti-commons”. If Hardin's tragedy of the commons happens when too many owners each have a privilege
to use a given resource and no one has a right to exclude another
19
, the opposite anti-commons tragedy
happens when “multiple owners each have a right to exclude others from a scarce resource and no one has
an effective privilege of use.”20 Patents being anti-commons are experiencing the real tragedy – by
protecting from overuse of scarce resources, now we are facing underusing, as governments gave too many
people rights to exclude others.
This situation is very well illustrated in study prepared by Michael A. Heller, Rebecca S. Eisenberg,
which investigated situation of the anti-commons in Biomedical Research and answered the question - Can
Patents Deter Innovation? - positively. They've paid attention to the fact, that recent proliferation of
intellectual property rights in biomedical research illustrated that people underuse scarce resources because
too many owners can block each other.
Research in biomedicine and other sciences was moving from the model when governments sponsored
research and and encouraged broad dissemination of results in the public domain towards the model of anticommons - when universities and other institutions encouraged by the same governments started to patent
their discoveries and transfer them to private sector. All time moving to the direction of anti-commons we
find ourselves in situation where science research is mostly private in the sense that it is either supported by
private funds or carried out in a private institution, or privately appropriated through patents, trade secrecy,
or agreements that restrict the use of materials and data.
The outcome of the patent protection is very complicated situation, when access to a number of patents
is necessary in order to create single useful product, that may be of vital importance to let's say - human
health. As research is costly, no one wants to leave findings to public domain. “Each upstream patent allows
18 http://www.actionbioscience.org/genomic/crg.html
19 G. Hardin, Science 162, 1243 (1968). http://www.sciencemag.org/cgi/content/full/162/3859/1243
20 Michael A. Heller, Rebecca S. Eisenberg. Can Patents Deter Innovation? The Anticommons in Biomedical Research.Science 1
May 1998: Vol. 280. no. 5364, pp. 698 – 701.
7
its owner to set up another tollbooth on the road to product development, adding to the cost and slowing the
pace of downstream biomedical innovation.”21
In spite of the fact that that the outcome of strict protection of patents and ownership of knowledge
became so intensively discussed in recent decades, the concern about scientific research is not new. Famous
scientist and philosopher Michael Polanyi22 (Budapest 1891 to 1976) in his 1951 collection of essays “The
Logic of Liberty”, argued that the way in which scientists act should be similar to the way consumers act in
a free market. He thought that scientific activities should not be regulated by state and believed that
“Scientists, freely making their own choice of problems and pursuing them in the light of their own personal
judgment, are in fact co-operating as members of a closely knit organization. (...) Any attempt to organize
the group under a single authority would eliminate their independent initiatives and thus reduce their joint
effectiveness to that of the single person directing them from the centre. It would, in effect, paralyses their
cooperation."23
These ideas were implemented in the sense that scientists were allowed to deal with each other as in
customers in the free-market, but instead of having co-operation we appear in the situation where
competition dominates over it. Theoretically scientist are free to cooperate with each other, but because of
the present legal framework and many other factors it is difficult. As free-market operates focusing on
economic factors, some assumptions remain unexamined: we forget to ask ourselves a question if
knowledge (or at least some kinds of it) is to be owned and still believe that copyrights on music supports
musicians, or that patents on drugs support life-saving research. Even if studies demonstrate the opposite.
Information indicated above does not mean that protection of intellectual property was always wrong
choice. For some time the aim of protection - development and growth in creativity, science and productivity
– was reached. However in long term period initial goals lost in the web of instant regulatory rules and
intellectual property rights protection gave results, that can not be called unexpected, but truly unwelcome.
Even Trademark laws, that were not adopted to promote any particular way of acting, but simply to enable
buyers to know what they are buying, have turned it into a scheme that provides incentives for advertising.24.
There is an opinion, that can be supported by number of arguments and evidence from reality, that
such shift in protection of different kinds of expressed knowledge was done by legislators under the
influence of the term “intellectual property”. It is important to keep in mind, that laws protecting different
types of knowledge, today known as intellectual property originated separately, evolved differently, cover
different activities, have different rules and raise different public policy issues.25
Thinking about so different categories, such as copyright and patens pr trademarks, in terms of
“intellectual property” we simplified and generalized the problems. Richard M. Stallman in his article
21 Michael A. Heller, Rebecca S. Eisenberg. Can Patents Deter Innovation? The Anticommons in Biomedical Research.Science 1
May 1998: Vol. 280. no. 5364, pp. 698 – 701.
22 His famous quote is that: “Tacit assent and intellectual passions, the sharing of an idiom and of a cultural heritage, affiliation to a
like-mended community: such are the impulses which shape our vision of the nature of thongs on which we rely for our mastery
of things. No intelligence, however critical or original, can operate outside such a fiduciary framework.”
23 http://en.wikipedia.org/wiki/Michael_Polanyi
24 Richard M. Stallman, Did You Say “Intelectal Property?” It's a Seductive Mirage, http://www.gnu.org/philosophy/not-ipr.xhtml
25 Richard M. Stallman, Did You Say “Intelectal Property?” It's a Seductive Mirage, http://www.gnu.org/philosophy/not-ipr.xhtml
8
argues that term “intellectual property“ is a seductive mirage which is widespread and brings confusion even
among professionals of this field. He claims that by talking about intellectual property the specific issues
raised by the various laws become nearly invisible. “For instance, one issue relating to copyright law is
whether music sharing should be allowed; patent law has nothing to do with this. Patent law raises issues
such as whether poor countries should be allowed to produce life-saving drugs and sell them cheaply to
save lives; copyright law has nothing to do with such matters.”26
Focusing on similarities of these different groups we created artificial privileges for certain groups.
The result is not satisfactory, because of unreasonable restrictions that laws places to the society and the
consequences we face. This simplistic focus on the form encouraged an “economistic” 27 approach to all
these issues, but the result is not always favorable to the economy and progress, even not talking to negative
effect on social justice, ethics and other moral issues.
2.3. Self-regulation initiatives – society's answer to crisis of intellectual property
Copyright, patents laws and institutions assisting in implementation of these laws are often discussed
as no longer capable to act in the way that would guarantee their primer goals. Emergence of the Internet in
the year 2000 has dramatically changed face of copyright law and revealed limitation of its possibilities to
cope with challenges of new digital era. Increasing number of patents (including controversial patent of
DNA) and therefore increasing costs and terms of scientific research limit society's right to access necessary
cures demonstrated that patents system or they way scientists cooperate should be revised and reconsidered.
Response to regulations incapability to effectively deal with changing environment was self-regulatory
initiatives such as Creative/Science Commons movements opposing to traditional understanding of
intellectual property rights regime promoted by WIPO.
The dominant position in intellectual property's protection theory was, that individual interests as well
as the interests of the whole society are best ensured by obligatory regulations that are enforced by state. But
practice have clearly demonstrated that slow and complicated states legislation can not effectively work
under conditions of globalization and digitalization and can not solve the problems at the time they arise. Of
course certain non-digital activities, like book publishing, continue to work relatively well under the terms
of classical copyright law designed for printing presses. However in the fields as music and software there
are more than a few models are still competing: some make money on selling copyable units, while others
profit by delivering copyable services.28Looking at the roots of the copyright (protection of trade secrets) we
can easily understand that today in some cases we protect “secrets”, that are not secret at all. They are easily
reachable through modern technologies and shared.
We are used to seems paradoxical thing, that people's works are copyrighted by default and it is a
violation to copy things even if you don't charge for them. Derivative works 29 being exclusive province of
26 Richard M. Stallman, Did You Say “Intelectal Property?” It's a Seductive Mirage, http://www.gnu.org/philosophy/not-ipr.xhtml
27 Richard M. Stallman, Did You Say “Intelectal Property?” It's a Seductive Mirage.http://www.gnu.org/philosophy/not-ipr.xhtml
28 Rasmus Fleischer. The-future-of-copyright, June 2008, http://www.cato-unbound.org/2008/06/09/rasmus-fleischer/the-future-ofcopyright/
29 Works based or derived from another copyrighted work.
9
the owner of the original work also causes troubles in practice, even if the author does not mind to share his
creation. Taking into account these differences between works protected by copyright and variety of
proposed regulation models it becomes more and more difficult to look for one universal model suitable for
or types of copyright.
The response of the society to this situation was self-regulatory initiatives, such as establishing
nonprofit corporation of Creative Commons seeking to make it easier for people to share and build upon the
work of others, consistent with the rules of copyright. Creative Commons provide free licenses and other
legal tools to mark creative work with the freedom the creator wants it to carry, so others can share, remix,
use commercially, or any combination thereof.30This movement, encouraging easy and legal sharing just like
Associations protecting traditional copyright claim that treating information as commons the amount of
creativity (cultural, educational, and scientific content) increases. The popularity of this movement and legal
recognition in 53 states all around the globe, signifies that such type of self-regulation is needed and
recognized by society, especial ally of its part that creates “virtually”. Even “The Obama Administration has
used Creative Commons licenses in a variety of ways, from licensing presidential campaign photos,
releasing information on transition site Change.gov via a CC.“31
One part of Creative Commons movement (Scientific Commons) is also trying to deal with the issues
that scientists meet because of the multiple patents, needed to their inventions that may be of global
importance. Many patent holders have patented inventions that could have broad or new applications in
areas that they did not anticipate, but they may not have a strategy to actively license them or offer them for
such uses. Therefore Science Commons movement is seeking to encourage patent holders to make their
patent portfolio available for licensing through public license on reasonable terms. In particular patent
holders are encouraged to make public and openly available for all to read the terms and conditions of the
license and make an offer, so that anyone who can agree to it is empowered to accept without further
negotiation. Another goal of this movement is availability of the patens free or only with nominal fee and
with few or no field of use limitations.32
These examples illustrate that situation when enticommons situation reaches the peak (if present
situation can be called peak) is not likely to endure. Even before such completely open and widely spread
initiatives communities of intellectual property owners who deal with each other on a recurring basis have
sometimes developed institutions to reduce transaction costs of bundling multiple licenses. For example, in
the music industry, copyright collectives33 have evolved to facilitate licensing transactions so that
broadcasters and other producers may readily obtain permission to use numerous copyrighted works held by
different owners. Similarly, in the automobile, aircraft manufacturing, and synthetic rubber industries, patent
30 http://creativecommons.org/about/
31 Heather Havenstein,Obama continues 'Google-enabled government' push on transition site. Change.gov embraces looser
copyright licensing policy and creates citizen forum
http://www.computerworld.com/s/article/9121925/Obama_continues_Google_enabled_government_push_on_transition_site?
source=landingpage
32 http://sciencecommons.org/projects/patent-licenses
33 Copyright's protection institution at the end did not resulted situation with easier access the intellectual property, because as a
result of their initiatives and efforts scope of owned and protected knowledge was significantly expanded.
10
pools have emerged, sometimes with the help of government, when licenses under multiple patent rights
have been necessary to develop important new products. 34
Above mention commons movements prove that society is able to react to the situation and
complement regulation of the state by voluntary centralized and progressive, however it is most likely that
states regulation of intellectual property will have to coexist with self – coordinated regulations. On the
other hand self-regulation initiatives, such as Creative Commons are not completely independent in the
sense, that their licenses belong to the sphere of contract law and before their adaptation in various counties
are being adapted to local legislation.35 Moreover, protection of adapted CC licenses can be enforced by
courts of the states. So the challenge for the courts and at the same time for other state institutions is
enforcement of peoples choices in the situation based on competition among alternative coordination
mechanisms.
34 Michael A. Heller, Rebecca S. Eisenberg. Can Patents Deter Innovation? The Anticommons in Biomedical Research.Science 1
May 1998: Vol. 280. no. 5364, pp. 698 – 701.
35 That caused some problems in counties of Continental Law traditions as initially licenses were prepared in accordance to US
rules, i.e. in accordance to Common (Anglo-saxon) Law tradition.
11
CONCLUSION
After analysis of proprietary and nonproprietary views towards knowledge it is clear that co
modification of knowledge is in comparison new phenomena. After a shift in the conception of knowledge
that was treated as commons of society somehow is conceived to be in the same domain as that of private
property. Mentioned case studies illustrate, that society is not always linked to understand proprietary view
towards knowledge. But it does not deny that legally recognized interest to creations of mind should exist,
thou not in the way of intellectual property.
Knowledge even if called intellectual property, differ from regular property being not inherently
"exclusive" and by trying to protect already know things we always meet the problem. Ideas of different
scholars, claiming that knowledge can not or should not be owned and commodified paradoxically evolved
together with intellectual property rights regime. However such situation can be quite easily explained if
economical factors are taken into account.
Today critical interest in the economic justifications for intellectual property rights and the extent to
which they empirically fulfill their avowed social goals has increased. 36 It is evident, that ownership of
knowledge encouraged creativity, progress of science end economic growth till the certain point. While
copyright, patents and trademarks were protected in different manner and their protection evolved separately
there was less confusion After the term of intellectual property became widely spread and used,
overgeneralization gave negative results. The scope of limitations and regulations was expanding till it
appeared that either regulations can not be enforced (in the case of Copyright) or limits creativity and
exaggerates costs (in the case of Patents).
As proprietary view towards knowledge with the concept of “intellectual property” at front appeared
to be insufficient, recently the conception of knowledge as shared practice regained its actuality. Most likely
as a reaction to the globalization phenomenon and challenges raised by so called digital era. It is almost
unanimously admitted that intellectual property regime is experiencing crisis, however different groups of
our society have different visions how this can be solved. Dominant view is that increasing number of
restrictions does not help and even stops creativity and progress in science. The fact that numerous
voluntary initiatives such as Creative/Science Commons movement that are becoming more and more
popular perfectly illustrate this.
Still, most likely regulation of intellectual property will have to coexist with self – coordinated
regulations, which are also not completely independent in the sense, that contracts proposed by them can be
enforced by courts of the states.
36 J.H. Reichman. Symposium: Toward a Third Intellectual Property paradigm. Legal Hybrids between The Patent and Copyright
Paradigms. December, 1994.
https://litigationessentials.lexisnexis.com/webcd/appaction=DocumentDisplay&crawlid=1&doctype=cite&docid=94+Colu
m.+L.+Rev.+2432&srctype=smi&srcid=3B15&key=5f995c9aa0ed14070d1cb3d8019d6824
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