“Tragedy of the Commons”: Intellectual Property Rights in the Information Age

The Threat to Civil Liberties and Innovation Posed by Expanding Copyrights

By Robin D. Gross
Published by MIT Press, 2006

0. Introduction

As we enter an information age, the rules governing the use and dissemination of information become increasingly important. Clashes between fundamental freedom of expression guarantees and intellectual property rights are upsetting the traditional balance struck between creators and the public. The ease of copying and re-distribution of digital information concerns industries dependent on traditional publishing business models. These companies have successfully petitioned for changes in the copyright laws at the national and international levels. But these recent increases in copyright holders' rights have come at the expense of the public's rights to use media and communicate freely. This chapter discusses the threat to traditional civil liberties posed by expanding copyrights and recommends some principles for creating communication rights in a digital world.

I. Dispelling the "Intellectual Property" Myths

One of the most common misunderstandings regarding intellectual property rights, particularly copyright, is that the actual creators are the main beneficiaries of the grant. In reality, it is the large companies that employ creators and then strip them of their copyright through contracts who actually benefit from the grant society intended as a reward for authors. This important misunderstanding is no accident. Misleading "romantic notions of authorship" are systematically spun by the companies who stand in the shoes of creators to justify the generous monopoly right rewarded to them.

Another major myth regarding "intellectual property" protection is that it is the same as more traditional forms of property such as personal property or real estate. But this conflation of intellectual property is grossly misleading and harmful. Copying another's intellectual creation does not end the owner's right to make use of the original. Intellectual property rights are created only as a means to encourage further creativity for the ultimate benefit of all society, while more traditional forms of property rights are designed to protect the personal and private interests of their owners. This crucial distinction can be seen when considering that one's house is not intended to pass into the public domain at some time; nor does anyone have a fair use right to borrow another's car. Intellectual property is intended to have ownership "holes", to be imperfect in its control, while real or personal property are more absolute in the their grants to owners.

Equating these very different forms of property rights together leads to the inevitable restriction of the public's rights giving way to more absolute property rights for large entertainment companies. Those wishing to maximize copyrights often merge the differing types of property together, appealing to society's natural affection for traditional property rights in an effort to confuse and extend that affection to a different concept.

Many in the entertainment industry erroneously claim that all unauthorized copying is the equivalent of "theft". But in actuality, most ordinary copying is not infringement. For example, copying for personal use, education, research, commentary, criticism, parody or other socially important uses are generally lawful under copyright law. And anything created before 1923 unequivocally belongs in the public domain and may be freely copied by anyone for any purpose, including commercial purposes. So claims that all unauthorized copying is the same social horror as theft hits far from the mark of legal accuracy.

Another significant myth often promoted by the copyright-extremists is that without copyright protection, creativity would cease. This claim ignores history. The concept of copyright was created only recently, within the last few centuries. Many of the greatest works ever created were inspired outside of the business model of copyright's pay-per-copy system. Mozart, Shakespeare, Sun Tzu all created without economic incentive from this particular business model. The Internet, the human genome project, Free and Open Source Software development, are modern examples that have been created outside of this one particular business model. So it is a simple fact that much can be and has been created without the goal of securing a copyright, and we should not be too wedded to the idea that it is the only, or even the best, way of encouraging innovation and further creativity.

II. Expanding Copyrights Threaten Traditional Rights

Among the greatest threats to civil liberties in an information age are ever-expanding copyrights that curtail individuals' freedom of expression rights. Certainly governments have an added incentive in giving rightholders greater rights, as it provides governments with more power to control the use and flow of information.

In response to the invention of the printing press, a state-monopoly copyright was also invented. Copyright originated in England with a "Stationer's Copyright" granted by the king to particular publishers, that allowed the king to precisely regulate which ideas could spread. So copyright was first created as a tool of censorship. It was not until 1710 and the UK's Statute of Anne was passed, altering the nature of copyright to further a public purpose of encouraging the dissemination of knowledge. But in recent years, copyright's power has expanded to such an extreme degree that it has returned to its roots as a tool for restricting the flow of information.

The very nature of digital technology makes copyright law "king" in an information society. Since every time one accesses or uses a piece of music, video, literature, or software, a copy must be made, and copyright law rules are triggered. This key "accident" of technology turns what was once an obscure field, only relevant to publishers, now into a major consideration for consumers' everyday lives. Many of the recent expansions in copyright holders' rights unhinges the delicate historical balance struck between creators, consumers, and distributors of creative works.

A. Anti-Circumvention Laws to Enforce Technical Restrictions

For example, newly created laws against the circumvention of technological restrictions controlling copyrighted works dangerously impede freedom of expression, innovation, and competition. Digital Rights Management (DRM) schemes prevent many lawful uses of electronic media. An increasing number of musical CDs are sold that will not play on personal computers, car stereos, and other devices deemed "untrustworthy" to major record companies. These restrictions have the effect of controlling the personal experience with that media, something outside the scope of copyright protection.

DVDs are designed to play only on DVD players licensed by the major Hollywood movie studios. Through licenses, the studios forbid the manufacture of innovative functions on DVD players, including any digital copying and often disabling the ability to fast-forward through commercials. Both of these restrictions, enforced by a combination of technology and law, exceed the rights granted to copyright holders and control an individual's personal experience of her information .

Anti-circumvention laws against bypassing such "digital locks" also have the effect of outlawing "reverse-engineering", or the ability to take technology apart, figure out how it works, improve upon it, or alter it to make it compatible with one's own system. Reverse Engineering has traditionally been ruled a lawful fair use under since it is necessary to gain access to the uncopyrightable ideas in software in order to make use of them. But since the enactment of laws forbidding the circumvention of technological restrictions have come into place, most notably the controversial 1998 US Digital Millennium Copyright Act (DMCA), and the 1996 WIPO Copyright Treaty the ability to reverse engineer technology has been outlawed with it. The European Union also passed the 2001 Copyright Directive with similarly broad anti-circumvention laws which is currently being implemented into national legislatures throughout Europe.

These anti-circumvention laws prevent interoperability between incompatible systems, giving copyright holders powerful new rights to control the devices on which media can be enjoyed. This new power impedes competition and creates a monopoly for existing industry players at the expense of innovative competitors. Anyone who wants to build adjacent or compatible devices must secure the permission from the copyright holder of the media, a radical new concept for copyright. Imagine if Sony could decide who may make and produce record players because Sony makes records. Yet this is the brave new world we are creating under DMCA-style anti-circumvention laws. Sony has the right to decide who can build DVD players because Sony makes DVD movies.

Anti-circumvention laws forbid tools capable of circumventing these digital locks, including software and even information that could help someone to bypass them. Since the enforcement of the DMCA in the US, anti-circumvention laws have been used against scientists conducting research on the quality of technology, preventing scientific papers and technical presentations that describe a technology's flaws. As a result, scientific and academic research, and freedom of information regarding computer security has been chilled. Because the legal liability is too risky, (criminal penalties for publications or conferences that charge fees), crucial academic and scientific research has been stifled.

Laws that forbid bypassing digital locks or distributing tools capable of bypassing these locks also have the effect of preventing media from effectively passing into the public domain. Knowledge and culture remain locked up forever, inaccessible to the very public which granted the limited monopoly right in exchange for a promise that it would eventually become freely accessible to all in the public domain.

B. Shrinking Private Copying Rights

The elimination of the public's private copying rights is another casualty in misguided laws to prevent the circumvention of technological restrictions. In most countries consumers enjoy private copying rights, such as fair use in the United States or fair dealing in the United Kingdom, Canada, and Australia. The legal doctrine of fair use grants consumers the right to make copies of works, even when the copyright holder does not wish to allow such copying. Fair use permits copying in many socially beneficially situations such as education, research, commentary, criticism, news reporting, and personal use. The US Supreme Court has ruled that fair use provides the necessary breathing space that is required under the US Constitution for copyright to avoid conflict with fundamental freedom of expression guarantees.

But when technological restrictions, or DRM schemes, disable the public's ability to engage in these lawful uses, private copying and other fair use rights are effectively eliminated. These restrictions can control, or prevent altogether, a person's ability to make personal use copies. Anti-circumvention laws forbid a person from bypassing these digital locks, and deny her the legal means to engage her personal use copying rights. The entertainment industry argues that "digital is different" and the public cannot be expected to have the same rights in a digital world that have existed in an analogue world.

C. Liability for Innocent Third-Parties

Another casualty in Hollywood's war on digital technology are the makers of tools and services capable of infringing copyrights who become subjected to increased liability for the uses of their tools. Under broad anti-circumvention laws, technology companies must receive approval from Hollywood lawyers before engineering or building devices that are compatible with the entertainment industry's CDs, DVDs, eBooks, and other digital media products. Software tools that are necessary to engage in lawful fair uses are also outlawed by overbroad anti-circumvention laws.

Makers of archiving and librarying tools can be held liable and thus prevented from distributing such tools because they might be used for infringing purposes. 321 Studios, an innovative software company that made DVD back-up software was sued out of existence by the Hollywood movie studios for contributory infringement. In the US, makers of Peer-2-Peer (P2P) software Napster were found secondarily liable for the infringing activities of others because the court believed the P2P company could have prevented the infringing activity.

Internet Service Providers (ISPs) in the US also face increasing legal risk for the allegedly infringing activity of their customers. ISPs are increasingly being forced to police and control their systems to prevent any infringement and hand over personal information on their customers to law enforcement or Hollywood attorneys if they suspect infringing activity on their systems. While it creates an incentive to police for infringement, increasing the legal liability for innocent third parties produces a chilling effect on freedom of expression and stifles innovation and technological development. The collateral damage in Hollywood's war on technology is too great of a cost without any showing of effectiveness.

D. Database Rights - Exclusive Ownership of Facts and Information

With the 1996 European Union Database Directive, the EU created new database rights that give companies the right to the exclusive control and ownership of facts, scientific data, and other information that they collect or compile. Although some forms of data rights had existed in Europe, database rights have been flatly rejected by the US Supreme Court as unconstitutional since they lack the necessary creativity and originality necessary to receive copyright protection. In the famous Feist v. Rural Telephone Service, the Supreme Court rejected a claim of copyright protection over the information in telephone books. Under the court's ruling, a company can only copyright the selection and arrangement of facts, but not the facts themselves. Despite its rejection by the US Supreme Court in 1991, a proposed clause in the Free Trade Area of the America's (FTAA) Treaty would require every nation in the Americas to adopt a World Intellectual Property Organization (WIPO) Database Treaty that has not even been written yet.

E. Severe Enforcement of Intellectual Property Laws

Another international trend is the increasing severity in the legal penalties and enforcement mechanisms available against alleged infringers. One example of this trend is a move to lower the standard for criminal penalties to be applied against infringement. Under Article 61 of the WTO's Trade Related Aspects of Intellectual Property Rights (TRIPS) Agreement, a person can be sent to prison for engaging in commercial infringement. And non-commercial infringements are civil matters, for which injunctions and financial penalties are available. But there is a growing international trend to send non-commercial infringers to prison as well-- in addition to the financial and civil penalties available against them. For example, in 1997, the US Congress adopted the No Electronic Theft Act (NETA), which permits federal prosecutors to send consumers to jail for sharing a single infringing MP3 song with a buddy over the Internet. The FTAA Treaty also proposes to send non-commercial infringers to jail, in excess of existing TRIPS legal obligations. And the EU is also discussing legislation to send people to prison for infringement that is neither commercially motivated and for which there is no financial benefit.

Law makers also grant new subpoena powers to rightholders to obtain personal information about people they suspect of infringing. Under the US Digital Millennium Copyright Act (DMCA), and the EU Intellectual Property Rights Enforcement Directive (IPRED), for example, there is no requirement that a judge receive evidence of infringement before a subpoena will be issued to turn over personal information. Under these laws, a court clerk may simply "rubber stamp" a subpoena request based on a mere allegation of infringement, without any finding of infringement by a judge. Traditional personal privacy and due process rights are brushed aside by these broad new copyright subpoena powers. The EU IPRED also granted new powers to destroy the property and equipment of innocent third parties, such as ISPs, even without a hearing on the matter.

F. Copyright Term Extensions

Another growing threat to freedom of expression and creativity is the perpetually increasing term of copyright. While the duration of exclusive copyright protection was originally 14 years in the United States, it has been consistently extended to a term of (generally) 70 years after the life of the author. In fact, in the last forty years alone, the US Congress increased the term of protection on eleven separate occasions. The European Union also has imposed a copyright term of 70 years after the author's life. Industry and performance rights last for 50 years in the EU, and database rights have a term of 15 years.

The current international standard for the term of copyright under the GATT / TRIPS Agreement is 50 years after the life of the author, but the US and Europe aggressively pressure other countries to adopt the new 70-years after the life term of exclusive rights. For example, there is a proposal in the FTAA Treaty that would require every other country in the Americas (except Cuba) to adopt this "TRIPS-plus" 70-years after the life term.

No attempt has been made to show that a longer term benefits the public or stimulates further creativity. Because of these perpetual extensions to copyright's term, 99% of creativity remains locked up and unavailable to the public, simply because in today's market it is not commercially attractive to exploit those older works. So music, literature and other culture remains perpetually out of the hands of the public and unexploited to the rightsholders, benefiting absolutely no one.

G. New Broadcasters' Rights

The UN agency charged with standardizing intellectual property laws among member states, the World Intellectual Property Organization (WIPO), has proposed a new treaty that would grant powerful new transmission rights to broadcasting companies over the signals carrying programming that pass through their wires and over their satellites. Although WIPO claims this new Broadcasting Treaty is only meant to update the "outdated" 1960 Rome Convention on Broadcasting, it in fact goes much further and creates a broad range of brand new rights for broadcasting companies. WIPO's proposal would create a 50-year exclusive right to these broadcasts, even when the material is in the public domain. This right would be granted to broadcasters who have neither created nor own the programming being transmitted. And the United States has proposed to extend this new transmission right to all Internet distributions of audiovisual programming, a giant leap beyond any existing international treaties or national laws. This proposal would give today's broadcasting giants a competitive advantage on the Internet and in shutting out tomorrow's innovators. Many other nations, however, oppose including web casting in the WIPO Broadcasting Treaty.

H. "Maximalist" US Agenda Exported Overseas

Only very recently did the United States become "religious" about expanding and enforcing copyrights. And through WIPO, TRIPS, regional and bi-lateral trade deals, the US is imposing this extremist view of copyright on the rest of the world.

Ironically, the US became strong largely because it was historically a "pirate nation" that refused to respect the copyrights granted in other countries.

Today, the vast majority of countries are intellectual property importers, yet they are being forced to adopt the policies of an intellectual property exporter, despite the wide differences in economic and social needs between countries. Developing countries are not allowed to set a lower term of protection for text-books, despite a compelling need to provide educational materials to the public at affordable prices. The consequence of imposing the "maximalist" US agenda overseas is a massive transfer of wealth from the countries of the South to the North; and a one-way flow of ideas from the North to the South - a form of "information age colonialism".

III. Communication Rights For an Information Age

  • Nations must retain their national sovereignty over their own domestic information policies

The growing gap in the "digital divide" warns that countries should tailor their information policies in accordance with their own economic and social needs. Developing countries, in particular, should be free to set their intellectual property rules according to their own needs, traditions, and cultures.

There is no justification for TRIPS' requirement that developing countries must adopt the policies of an intellectual property exporter in order to be allowed to participate in world trade. The TRIPS Agreement should be removed from the WTO, where trade sanctions are imposed for non-compliance with these rules, giving countries no choice but to adopt harmful intellectual property policies at home. This practice should be corrected to allow developing countries to retain their sovereignty so they may adequately address the needs of their people without fear of being cut-off from international trade.

  • Protection for the "Intellectual Commons"

Proper recognition for the value of the public domain in enriching society would be an important step to take in an information age. The public domain is a valuable resource that all share together. Musicians are free to perform Mozart in Central Park, actors practice with royalty-free plays written by Shakespeare, the Internet is largely run on free software, schools teach Beethoven without the need for expensive licenses - all because these works are freely available in the public domain. All of today's intellectual creations are based partly upon pre-existing works. Today's public enjoys the benefit of knowledge developed centuries, even millennia, ago. Artists and future creators are harmed the most by the elimination of the public domain.

Governments should enable public access to scientific information that is acquired at public expense. Unfortunately, the present trend is for the public to pay for the research directly the first time, and then to pay again when the public information has been commercialized.

  • Intellectual Property Rules Should Promote, Not Inhibit, Creativity

Too much "protection" of intellectual property hampers creativity and innovation. A delicate balance must be maintained between enough protection to provide incentive to creativity, but not so much as to chokehold innovation and further creativity. Creators must remain free to build upon the works of those who came before for society to continually advance. Existing intellectual property regimes should be re-evaluated in light of the goals of promoting creativity and innovation.

  • Promote Free and Open Source Software Development Models

The spread of Free and Open Source Software development has created enormous social value and an increased shared wealth in recent years. Innovative new licensing systems such as the Creative Commons licenses that permit consumer copying are opening up entirely new models of content distribution. But existing intellectual property rules are often designed around one specific business model, such as copyright's "pay per copy" model.

A growing number of governments in developing countries including Brazil are choosing to use and promote Free and Open Source Software instead of proprietary software. By choosing Free or Open Source Software use, governments are able to spend their nation's scarce resources on more immediate needs, like food and drinking water, instead of Microsoft licenses. In addition to being customizable to individual needs and inter-operable with different systems, non-proprietary software provides more robust personal security than proprietary systems. The city government of Florence, Italy, passed a motion in 2001 stating that extensive use of proprietary software was creating the 'computer science subjection of the Italian state to Microsoft'. And laws against the circumvention of 'digital locks' controlling copyright covered works also endanger Free and Open Source Software developers. Although currently under threat, alternative business models and non-proprietary systems of development must remain lawful in a healthy information society.

  • Intellectual Property Rules Should Shrink, Not Increase, the Knowledge Gap

The ability of countries to adequately educate their people is directly impacted by intellectual property rules such as the term for copyright or the extent of fair use privileges. New laws with expanding rights and increased penalties are making it too risky for libraries and archives to continue functioning.

It is somewhat ironic that technology moves us closer to a "pay per use" society, where one's level of education depends upon her parent's income, at exactly the time when it costs virtually nothing to disseminate information. The Internet and other communication technologies can be revolutionary tools for education. But only if the technology is not crippled by efforts to destroy its most promising features - the ease and low cost of disseminating knowledge.

  • Protect Private Copying Rights

Most reproductions of copyrighted works that people make every day are not infringements. The type of ordinary copying that individuals make in the course of their normal enjoyment of their music or video collection is lawful under private copying rights or fair use rights. Lawful activities such as "time-shifting", to view a recorded program at a more convenient time, or "space-shifting", to copy one's music onto an MP3 player or computer hard drive, put limits on a copyright holder's right to control the individual experience of the media. Private copying rights ensure a level of personal autonomy and enjoyment in the media experience. And consumers must have access to the tools that are necessary to engage in private copying if the rights are to have any meaning in a digital world.

The lessens of history are particularly relevant. Every time a new technology has been invented that made consumer copying easier, the entertainment industry fought to outlaw the new technology (including the invention of piano rolls, radio, VCRs, MP3 players). But in the past, the US courts and Congress have not allowed the industry to kill the technology, and as a result, the industry learned how to profit from it. Although the entertainment industry fought hard to outlaw VCRs twenty years ago, today, video rental and sales is the number one revenue-generating segment of the movie industry. Consumers having the ability to make private copies does not harm an artist; quite the contrary, it increases the value of the work to the consumer.

  • Protection for Intellectual Freedom

Protection for intellectual freedom should be of highest priority in an information age. Freedom of thought and freedom of expression are fundamental human rights that require access to ideas and information to fully develop.

The common practice of "reverse engineering", a technology - taking it apart, learning how it works and how to improve upon it - is part of a heritage that values intellectual freedom. This "right to tinker" can be thought of simply having the right to open up the hood of one's automobile and make whatever adjustments are necessary to best suit the owner's individual needs. But today's overbroad copyright laws can be used to prevent a car owner from "tinkering" with her own engine. Technology gives us greater opportunities to learn, particularly to teach ourselves; we must preserve our legal tradition of protecting individual intellectual freedom.

IV. Conclusion: Communication Rights are Human Rights in an Information Society

The impact of expanding copyrights reaches a spectrum of existing fundamental legal rights: freedom of expression, freedom of the press, freedom of thought, intellectual freedom, and more are all harmed by such a dramatic shift in the traditional balance of rights.

Historically, when society was primarily an agricultural economy, the key ingredient to wealth and development was ownership and use of land. When society moved into an industrial era, the key to wealth and development shifted to ownership and use of capital. Now as we move into an information society, access to knowledge is the key factor for continued development and wealth on a personal and national level.

Just as human bodies require food and medicine for good health, our minds require knowledge to function and develop. Technology promises the unprecedented opportunity to disseminate information and foster collaboration that will dramatically expand human knowledge and social development. But only if we do not allow the technology to be crippled first by an over-reaction of industries rooted in the past.

The free speech guarantee in the United Nations Universal Declaration of Human Rights, although adopted by the UN General Assembly in 1948, speaks directly to the Internet age: Article 19 guarantees that "Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive, and impart information and ideas through any media and regardless of frontiers."

This universal guarantee to freedom of expression is not limited to speech only in analogue media, but rather explicitly, "... in any media and regardless of frontiers." While proponents of limiting freedom of expression guarantees argue that "digital is different," and traditional rights must be sacrificed to protect private property rights, the Universal Declaration of Human Rights has already answered that digital is no different and that our traditional rights are meant to continue with us into a digital environment.

Now it is up to "we the people" to hold our governments accountable to this standard.

* Published by MIT Press “Human Rights in the Global Information Society” edited by Rikke Frank Jorgensen, 2006.  Based on a speech delivered by Robin D. Gross at the World Forum on Communication Rights: “Communication, Copyright, and Trade: (Resisting) the Enclosure of the Global Knowledge Commons” on 11 December 2003 in Geneva as part of the World Summit of the Information Society (WSIS).