Digital rights management and the breakdown of social norms
First Monday

Digital rights management and the breakdown of social norms

Abstract
Digital rights management and the breakdown of social norms by Christopher May

At the centre of the protection of intellectual property rights (IPRs) is a long history of political bargains struck between private rights to reward and the social benefit of information/knowledge diffusion. The historical dynamic of politics in this policy area has been to expand the rights of owners while circumscribing the public realm of information and knowledge. In recent decades the public domain has become merely a residual, all that is left when all other rights (as constructed by IPRs) have been exercised. The advent of digital rights management (DRM) technologies has disturbed a reasonably legitimate politico-legal settlement over "fair use," challenging the existing balance between the rights of "creators" and the interests of users. The breakdown of the norms underpinning IPRs has prompted renewed debate regarding their legitimacy. Although it is technological change that has enhanced not only the ability to copy but also the potential to control the distribution of content, this paper suggests that this argument will not be won or lost in the realm of technology. Rather, new technologies return the question of the control of knowledge and information (content) to the realm of politics.

Contents

Introduction
TRIPS: Historical context
The normative underpinnings of intellectual property
Digital rights management and the crumbling norms of copyright
Conclusion

 


 

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Introduction

Since 1995 intellectual property rights (IPRs) have been subject to the TRIPs agreement which is overseen by the World Trade Organisation (WTO). While this agreement does not determine national legislation, to be TRIPs-compliant WTO members "domestic intellectual property law must support the protections and rights laid out in TRIPs’ 73 articles. The agreement covers not only general provisions and basic principles, but also represents an undertaking to uphold certain standards of protection for IPRs and to provide legal mechanisms for their enforcement. Perhaps most importantly, the WTO’s cross-sectoral dispute settlement mechanism encompasses international disputes about IPRs. Prior to 1995, while there were long standing multilateral treaties in place regarding the international recognition and protection of IPRs, overseen by the World Intellectual Property Organisation (WIPO), these were widely regarded as toothless in the face of "piracy" and the frequent disregard for the protection of non-nationals’ intellectual property outside the most developed countries (and even sometimes between them) [1].

In addition to the advantages to be gained by having a tougher multilateral enforcement mechanism, the U.S. government (alongside allies in the European Union) wanted to move the international regulation of IPRs to the new WTO (at the expense of regulatory competence located with WIPO) because their negotiators surmised that they were more likely to gain agreements to their advantage by linking these issues to the international trade regime [2]. Indeed, a number of large multinational corporations with a particular interest in protecting their IPRs played a major role in the negotiations which led to the TRIPs agreement, drafting the majority of the document which became the broadly successful position advocated by the office of the US Trade Representative (USTR) during the Uruguay Round [3]. These companies therefore had a significant impact on the particular view of IPRs that has subsequently become the potential set of globalised norms lying at the heart of the TRIPs agreement.

However, there are the tensions in this attempt to move towards a more harmonised global governance regime for IPRs. Developed countries' governments accept the legitimacy and usefulness of IPRs, but this has been met by considerable doubts among NGOs and other groups regarding the social utility of making property from knowledge, as well as widespread suspicion in developing countries of what IPRs seem intended to do [4]. Below, I briefly lay out the historical context for the global governance of IPRs; I then explore the tension between a cosmopolitan view of the justification of IPRs encapsulated in the TRIPs agreement, alongside the problems that arise from continuing global inequalities and the relatively "thin community" TRIPs attempts to govern. At the heart of this problem is the importance of the balance between private rewards and public benefits on which IPRs have been traditionally built, a balance which has been undermined by a systematic privileging of owners’ rights in the face of users’ poverty. I focus on a particular technological realm: The Internet and the recent development of digital rights management (DRM) software. The social norms that have up until recently supported copyright are now breaking down because technological change is enabling content owners (and others) to violate the previously largely legitimised bargain between private rewards and public goods. I conclude that technological "fixes" which do not recognise this normative crisis are doomed to fail.

 

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TRIPs: Historical context

While the history of intellectual property [5] itself stretches back to fifteenth century Venice, for the first 350 years it was almost entirely a national issue (Sell and May, 2001). However, as part of the nascent multilateralism of the nineteenth century, diplomacy between the major trading nations established two intellectual property agreements which broadened the governance of IPRs beyond national borders in the last quarter of the century. In the last decades of the century, two sets of conferences focused on the international co-ordination of protection for IPRs, reflecting a broadly internationalist position. These resulted in the Paris Convention (covering patents), completed in Madrid in 1891, and the Berne Convention for the Protection of Literary and Artistic Works (1886). By 1893 the common issues across both conventions had led to the establishment of a combined secretariat, functioning under various names until the establishment of WIPO at the end of 1960s. An agency of the United Nations since 1974, WIPO also administers other international treaties covering intellectual property (including trademarks, geographic indicators and industrial designs) and remains responsible for promoting technology transfer by supporting the recognition of IPRs in developing countries.

By the 1970s WIPO oversaw a complex of different agreements on various forms of intellectual property, all with differing signatories, with divergent mechanisms for negotiating settlements in international disputes and little harmonisation in their underlying principles. Most importantly with no explicit rules on enforcement, there was no settled and robust mechanism for the settlement of disputes between members regarding the protection offered non-nationals [6]. States enjoyed enormous discretion over how they legislated to protect IPRs and many IPR-importing countries’ governments did not perceive accession to all WIPO’s treaties as in their immediate national interest. These differences between the various members’ perceptions of their national interest undermined attempts in the 1970s and 1980s to establish a more workable dispute settlement procedure. While the conventions overseen by WIPO allowed some voluntary harmonisation of protection across the various forms of IPRs, growing concerns among important (globalising) industrial and service sectors in the richer developed countries regarding piracy were largely frustrated at a time when IPRs were moving steadily to the centre of the commercial concerns of a number of important globalising industrial sectors.

The main political pressure from the developed countries to include intellectual property in the Uruguay Round therefore partly originated in the response by the content industries to a series of technological innovations, centred on information and communications technologies (ICTs) which enhanced both the possibilities of an international (commodity) trade in information- and knowledge-related goods, but also enlarged the possibilities of "theft" and "piracy." Trade negotiators from the developed countries were heavily (and successfully) lobbied on this issue while they themselves already believed that the complex of 24 multilateral treaties administered by WIPO produced too much rule diversity. But these arguments did little to stimulate developing countries’ interest in including IPRs in multilateral trade negotiations.

To "encourage" a change of heart regarding the negotiation of the TRIPs agreement, the Office of the U.S. Trade Representative (USTR) threatened bilateral trade sanctions (under the Special 301 section of the Omnibus Trade and Tariff Act, 1988), and utilised such measures against the Indian pharmaceutical industry among others [7]. This stick was combined with the carrot of a promise to open up agricultural markets and an offer to abolish the Multi-Fibre Arrangement which constrained developing countries’ textile exports [8]. The developing countries generally lacked the expertise and resources to fully resist this heavy bilateral pressure. The combination of political pressure, and weakened resistance due to the complexity of the negotiations relative to the limited resources developing countries could dedicate to them, ensured that when the developing countries joined the new WTO they had to accede (with some transitional arrangements to be sure) to the TRIPs agreement as well [9]. In itself, the manner in which the TRIPs agreement was negotiated has led Daya Shanker to argue that even if the agreement’s undertakings themselves present problems like those I examine below, its diplomatic origins render it largely illegitimate in any case (Shanker, 2003). However, in parallel to the arguments developed below, Shanker suggests that diplomatic negotiation to revise TRIPs is preferable to the non-compliance that the agreement’s illegitimacy might imply.

The keystone of the TRIPs agreement is the adoption in the realm of intellectual property of the principles that are central to the WTO (like the GATT before it): national treatment; most-favoured nation treatment (MFN); and, reciprocity. While reciprocity as a principle does little in itself to change the intellectual property regime, the introduction of MFN does change the international governance of IPRs somewhat. Under the auspices of WIPO there were many smaller scale treaties and conventions; under TRIPs all such specialised agreements immediately apply to all the members of the WTO. Where there had been resistance to incorporate particular sectoral conventions in the past, by inclusion into the WTO their scope becomes as wide as the main IPR conventions. Furthermore national treatment ensures favouritism accorded domestic inventors or prospective owners of IPRs relative to non-nationals is rendered illegal. This is an important shift as many national IPR systems have favoured domestic "owners" either through legislative or procedural means. Indeed, in the past, many industries in then developing countries (such as the U.S. publishers in the nineteenth century) "pirated" non-national intellectual property by awarding protection to nationals who were known not to be the original innovators.

The TRIPs agreement is not a model piece of legislation that can be incorporated directly into national law. Rather, it sets the minimum standards that should be reflected in the national legislation of all WTO members. It does not preclude members setting more rigid or stronger protection for IPRs except where such extensions above and beyond the minimum standards represent an infringement of the agreement’s articles in some way. National legislatures are required therefore to ensure IPRs are protected but the method for this protection is only important as regards its consequences, not its form; the agreement is concerned with ends not means. The agreement’s recognition that "intellectual property rights are private rights" is partly balanced by an explicit allowance of the need for the "public policy objectives of national systems for the protection of intellectual property, including developmental and technological objectives." But crucially, the previous problems of international enforcement of IPRs are reflected in TRIPs’ promotion of "adequate" protection through the application of a global set of standards. Unlike the WIPO’s stewardship of previous conventions, the WTO offers a considerably more robust mechanism for states to appeal to where the national laws of a particular country are seen to impede the recognition and enforcement of the rights of non-nationals.

Overall this extension of the protection of intellectual property in the international realm as well as the harmonisation of law across WTO members represented a major triumph for the "U.S. pharmaceutical, entertainments and informatics industries that were largely responsible for getting TRIPs on the agenda" of the Uruguay Round [10]. The TRIPs agreement is significant in the extension it represents for the rights of the owners of intellectual property. Indeed, Samuel Oddi argues that the use of a natural rights discourse (utilising the narratives of justification I briefly lay out in the next section) tries to establish that

"these rights are so important that individual [WTO] member welfare should not stand in the way of their being protected as an entitlement of the creators. This invokes a counter-instrumentalist policy that members, regardless of their state of industrialisation, should sacrifice their national interests in favour of the posited higher order of international trade" [11].

While the TRIPs agreement includes instrumentalist justifications alongside the more rights-oriented language, Oddi (and others, including myself) argue that it is the rights side of any balance between individual rights and public (developmental) benefits that are systematically privileged throughout the agreement’s text.

While the agreement itself is a complex and wide ranging set of requirements on signatories, [12] at the core is a particular set of norms regarding the treatment of knowledge as property. These norms underpin the entire agreement and are based on the notion that the private ownership of knowledge as property is a major spur to continued economic development and social welfare. They further emphasise the development of knowledge as an individualised endeavour, and the legitimate reward of such individualised effort. Most obviously this includes the central norm of commodification of knowledge and information. However, these norms of property ownership in knowledge and information are hardly universal and therefore represent a major problem for the legitimisation of the global governance of IPRs, as well as causing sectoral problems where they have shifted in effect through the development of new ICTs.

 

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The normative underpinnings of intellectual property

The most important aspect of IPRs is their formal construction of scarcity where none necessarily exists. Knowledge and information, unlike material things, are not necessarily rivalous, co-incident usage does not detract from utility. In this sense, most of the time knowledge (before it is made property) does not exhibit the characteristics of material things. Take the example of a hammer (as material property); if I own a hammer and we would both like to use it, our utility is compromised by sharing use. I cannot use the hammer while you are, you cannot while I am, our intended use is rival. Thus, for you to also use my hammer, either you have to accept a compromised utility (relying on my goodwill to allow you to use it when I am not) or you must also buy a hammer. The hammer is scarce. However, the idea of building something with hammer and nails is not scarce. If I instruct you in the art of simple construction, once that knowledge has been imparted, your use of that information has no effect on my own ability to use the knowledge at the same time, there is no compromise to my utility. We may be fighting over whose turn it is to use the hammer, but we do not have to argue over whose turn it is to use the idea of hammering a nail into a joint, our use of the idea of cabinet construction is non-rival. Ideas, knowledge and information are generally non-rivalous.

To be sure, if you and I were both cabinet makers, then instructing you in cabinet construction might lead you to compete for my customers, possibly reducing my income. We might say that any secrecy regarding my skills was anti-competitive. There are also other cases where knowledge may produce advantages for the holder (often called information asymmetries), by enabling a better price to be extracted, or by allowing a market advantage to be gained. In both cases information and knowledge is rivalous, and wider availability of this knowledge would cause market advantage to be compromised. However, rivalousness is not necessarily of any wider social benefit: Competition is often beneficial to customers, while information asymmetries produce market choices that are not fully informed and which therefore can be inefficient, or even harmful. Thus, when information is "naturally" rivalous, the social good may be best served by ensuring that it is shared, not hoarded. For instance, many problems for buyers in the second-hand car market could be ameliorated if all car dealers where required to reveal all they knew about the cars they were selling. This would likely reduce the price they could obtain for much of their stock, but would enhance the general satisfaction (and even safety) of second-hand car buyers. Leaving aside special cases like this, generally speaking it is difficult to extract a price for the use of non-rival (knowledge) goods, so a legal form of scarcity (IPRs) is introduced to ensure a price can be obtained for use.

Karl Polanyi suggested that the idea that labour, land and money themselves might be commodities required a "commodity fiction" be developed during the transformation from feudalism to capitalism [13]. The rendering of things not originally produced for sale as commodities required a story to be told about these resources which was not necessarily linked to their real existence or production but rather narrated a propensity to be organised through markets. This reliance on the narrative of the advantages of market organisation is central to the norms on which IPRs are founded. As Arnold Plant stressed seventy years ago, unlike "real" property rights, patents and copyrights (as well as other IPRs)

"are not a consequence of scarcity. They are the deliberate creation of statute law; and, whereas in general the institution of private property makes for the preservation of scarce goods, tending (as we might somewhat loosely say) to lead us "to make the most of them," property rights in patents and copyright make possible the creation of scarcity of the products appropriated which could not otherwise be maintained. Whereas we might expect the public action concerning private property would normally be directed at the prevention of the raising of prices, in these cases the object of the legislation is to confer the power of raising prices by enabling the creation of scarcity" [14].

This protection of rights for the express purpose of raising prices is, of course, the central issue that we will return to below.

The "knowledge commons", from which intellectual property has temporarily rendered certain "items" as scarce property, have been recognised in law since early forms of intellectual property were codified in the Renaissance. Limits on the period of protection (making IPRs temporary) are used to put socially useful knowledge back into these commons. This also recognises that many aspects of "new" knowledge are actually drawn from the extant pool of information and knowledge represented by the commons, and thus the continued vitality of the commons is also crucial for continuing innovation and creativity. Such extraction from these commons was originally (in the sixteenth, seventeenth and eighteenth centuries) regarded as a privilege accorded only in certain circumstances; duties such as training in the practices covered, or the use of the technologies towards specific ends were part of the grant of temporary monopoly. However, the subsequent history of intellectual property has seen these monopoly grants gain the status of rights (Sell and May, 2001). These rights construct a scarcity of legitimate use which is far from natural nor of self-evident benefit to all, and therefore significant time and effort is spent telling stories about intellectual property that are meant to justify its existence as a set of legal rights.

While not entirely absent the public good is only recognised under TRIPs as a residual after all other possible rights have been exercised. Any public regarding aspect of IPRs is subsumed beneath the normative narratives of individual rights that are central to the justification of intellectual property [15]. Furthermore, corporations have established themselves as rights owning individuals, which is to say these narratives of justification, originally tales of the rights and interests of individuals have become a set of norms supporting the rights of corporations as well. Not only commentators but also legal documents, judgements and most importantly the TRIPs agreement itself, and its subsequent arbitration at the WTO, sometimes explicitly, but always implicitly, draw on these material property-related narratives to justify the recognition of property in knowledge.

The first narrative of justification argues for labour’s desert: The effort that is put into the improvement of nature requires that it should be rewarded. In John Locke’s influential formulation this was modelled on the improvement of land. The application of effort to produce crops and/or improved resource yields justified the ownership of specific tracts of land by whoever worked to produce such improvement. Starting from this initial position Locke then argued there was also a right in disposal (or alienation), mediated by money. This led him to conclude that all property, even after its initial alienation could be justified on the basis it had originally been produced through the labour of an individual. More importantly property was also justified because it encouraged the improvement of nature through the reward of effort. Therefore the Lockean argument supports property by suggesting property encourages individual effort through the reward of ownership in the fruits of work. In contemporary debates around intellectual property the argument that patents and other intellectual properties reward the effort which has been put into their development (the research investment made to develop a patented innovation; the marketing expense in establishing a trademark) is a commonplace.

However, sometimes this argument is supported through the mobilisation of a secondary justificatory narrative; the notion of property’s links with the self as proposed by Georg Hegel. Here the control and ownership of property is a significant part of the (re)production of selfhood, inasmuch as selfhood relates to the establishment of individual social existence. It is the manner in which individuals protect themselves from the invasions and attacks of others. For Hegel, the state legislates for property as part of its bargain with civil society. Individuals allow the state to operate in certain areas but protect their individuality (and sovereignty) through the limitations that property rights put upon the state vis-á-vis the individual’s own life and possessions. In intellectual property law on the European continent this also supports the inalienable moral rights that creators retain over their copyrights even after their formal transfer to new owners. In Anglo-Saxon law this mode of justification has been less well received due to its implications for the final alienability of intellectual property. Nonetheless, especially where "passing off" of trademarks, and the use of copyrighted material (sampling of music, for instance) are concerned, this justification can sometimes be noted in the calls for redress based on the diminution of reputation, or the ownership of (self) expression.

However, there is a third set of additional and important justifications which often underpin the role of intellectual property in the TRIPs agreement and elsewhere. In this pragmatic or economic argument the emergence of property rights was a response to the needs of individuals wishing to allocate resources among themselves [16]. Thus, Douglas North argues that the enjoyment of benefits (and the assumption of costs) takes place in social relations through the mobilisation of useful resources. The institution of property arose to ensure that such resources have attached to them the benefits (and the costs) that accrue to their use, and this increases "efficiency" [17]. In this story property rights took the place of social (trust) relations, and allowed complex trade relations to form over distance. Mobilising a history of material property, this third set of justifications suggests that the development of modern economies is predicated on the institution of property, and its ability to ensure the efficient use of limited resources. In this justification, it is this efficiency requirement that drives the historical development of property rights, and now underpins the commodifcation of knowledge.

Even when it is accepted that this allocation of (knowledge) resources may not be "optimal," property rights are still presented as the most efficient method of allocation available, even though they often produce a less than perfect solution. This narrative of the efficient allocation of scarce resources is then bought to bear on the allocation and use of knowledge in the putative contemporary global society [18]. But, part of the continuing fluidity in the legal constitution of property rights has been the widespread attempt by "owners" to secure benefits while keeping costs externalised. Social efficiency would be best served by costs accruing to the property that delivers the benefit; however for individual owners it is more efficient to have the costs met by others.

As a subset of this third justification (but linked to the first), one of the most common arguments utilised to substantiate IPRs is the need to support innovation. Drawing from Locke the notion of reward for effort in improvement, and from the third story the idea of social efficiency, it is often asserted that without IPRs there would be little stimulus for innovation (an argument at the heart of the disputes over pharmaceutical patents, for instance). Why would anyone work towards a new invention, a new solution to a problem, if they were unable to profit from its social deployment. Thus, not only does intellectual property reward intellectual effort it actually stimulates activities that have a social value, and therefore serves to support the social good of progress. Underlying this argument is a clear perception of what drives human endeavour — individual benefit. Only by encouraging and rewarding the individual creator or inventor (with property, and therefore market-related benefits), can any society ensure that it will continue to develop important and socially valuable innovations, which will serve to make society as a whole more efficient.

The construction of scarcity through the commodification of knowledge plays a vital role in the operation of contemporary global capitalism. But, considerable effort is required to support the argument that such scarcity is socially beneficial, and hence the political articulation of various combinations of these narratives. The problem is that when the recognition of property rights is co-existent with scarce resources, then as John Commons noted "the mere holding of property becomes a power to withhold, far beyond that which either the labourer has over his labour or the investor has over his savings, and beyond anything known when this power was being perfected by the early common law or early business law" [19]. This is even more pronounced when the scarcity itself is legally constituted through the imposition of (intellectual) property rights. It is this move from holding to withholding, the ability to restrict use, which is of crucial importance in the political economy of IPRs, and which has been the most obvious political issue raised by DRM technologies. When resources are potentially freely available (as is knowledge) then the imposition of property rights introduces this scarcity and supports the mobilisation of social power as regards the benefits from use.

Conventionally when intellectual property is eulogised, it is on the basis of the protection of the creator, the owner of such knowledge which is made property. Their rights are protected so as to act as a general spur to innovation and socially useful activity. Arguments about just desert, and selfhood are allied to the need for social efficiency in the allocation of resources. However, Jeremy Waldron argues all this talk of property "sounds a lot less pleasant if ... we turn the matter around and say we are imposing duties, restricting freedom and inflicting burdens on certain individuals for the sake of the greater social good" [20]. At least part of the problem may be the over-emphasis of the second term at the expense of the first when discussing "intellectual property"; while the latter stresses legitimate control, the former encompasses notions of access to knowledge [21]. Which is to say IPRs limit the actions of others regarding knowledge vis-á-vis the owners of intellectual property, and as such non-owners are being forced to sacrifice their particular wants or needs on the alter of social necessity. Non-owners’ "rights" are constrained because these rights are regarded as less important in law than the support of the social good of innovation by IPRs, or perhaps more accurately the property rights of owners are being privileged over the political rights of users. It is also well to note that current copyright legislation across the world, and the history of such legislation has usually privileged not the creators’ rights (whatever the rhetoric) but rather has been concerned with securing the rights of commodifiers (Macmillan, 2002). Thus, the rhetoric of individual rights is mobilised on behalf of corporate entities, who receive protections legitimated not on the basis of their own (commercial) character, but derived from a narrative of individual human endeavour.

To ensure the continuing supply of innovation (knowledge as a public good), states’ laws have legislated a time limited enclosure of knowledge and information to encourage intellectual effort. Historically, for those suffering the social costs of information or knowledge withholding, political action to (re)balance private rights and public benefits has produced new settlements as regards IPRs in national jurisdictions. This is to say that when the justifications mobilised to underpin the protection of IPRs were based on a cosmopolitan entity delimited by national jurisdiction, the inherent problems with commodifying knowledge could be (at least partly) ameliorated through legal amendment (or social values promoted through the use of judicial precedent) in response to the national polity. However under the TRIPs agreement, while these cosmopolitan narratives have been used to produce a global legal settlement for IPRs, the political mechanisms which can address the social effects on user communities remain relatively under-developed. The implicit cosmopolitanism of the narratives of justification that are suffused throughout the TRIPs agreement are not matched by a similarly scaled (global) polity.

Nevertheless, the TRIPs agreement is far from uncontested. The current (TRIPs engendered) globalised social bargain between private rewards and public benefits may not be universally appropriate. In its contemporary globalised form, this bargain privileges the rights of owners (predominantly domiciled in rich, developed countries) and downplays or marginalises the social costs (and curtailed public benefits) widely experienced in both developed and developing countries. There is a real need to (again) recognise the political character of the balance between private rewards and public benefits that has been central to the legal history of IPRs in national legislation. Even if TRIPs is not yet fully comprehensive, the final achievement of this "one-size-fits-all" legal settlement has revealed the central problem for the globalisation of IPRs. Its effects already suggest that without a well developed global society able to mediate between private rewards and social goods/public benefits, the notion of a global regime for IPRs is currently difficult (if not impossible) to justify. Within the developed countries, and between them and the lesser developed regions of the global system, significant tensions have arisen between "owners" and "users."

This is to say that the global governance of IPRs closely reflects the depiction of the contemporary (global) polity suggested by Richard Higgott and Morten Ougaard. While there is a "thick interconnectedness" between "political structures, agents and process, with transnational properties", these are as yet only linked by a "thin community that transcends the territorial state" [22]. The TRIPs agreement and the political economy of its negotiation, alongside the international (industry-based) lobbying groups involved in establishing and expanding the (specific) agenda of IPR-governance, all fit with the notion of "thick interconnectedness." Not only via the Internet (which itself very unevenly globalised) but also through the use of new (patented) technologies and the increasingly globalised reach of brands, the globalised interconnectivity of the political economy of knowledge commodification becomes more pronounced by the day. However, there remains only a "thin community" as regards the socio-political justification of IPRs on which the TRIPs agreement is founded, and no real mechanisms (previously encoded in domestic law) to recognise the social values (and social costs) of this community.

We should recall that before the end of the nineteenth century (and for many countries, into the twentieth), non-national intellectual property was seldom recognised at all. Famously the U.S. book trade thrived in the nineteenth century publishing "unauthorised" work of European authors, only recognising the rights of non-U.S. authors in 1891. But perhaps less often noted, U.S. industrialisation proceeded apace with technologies that were patented abroad, but freely available (through "piracy") to entrepreneurs in America, especially in the petro-chemical sector. As Peter Gakunu noted before TRIPs had even been finally negotiated, in the past

"perhaps the developmental aspects of intellectual property were more interesting to the United States that the trade aspects are at the present time. Now that the United States is at its present level of technological development, the trade aspects of intellectual property become more important for it than the development aspects" [23].

Certainly the discourse privileging trade interests in IPR-protection has almost completely drowned out development and/or public good-related interests. For many developing countries these issues are secondary to the more pressing need to access information and knowledge that will support their further economic development. In a very real sense the two sides are talking past one another. This might suggest that the location of the global governance of IPRs in the WTO (at least for the developing countries) is the real problem, foregrounding as it does the "trade relatedness" of IPRs.

The world is not sufficiently globalised (whatever commentators celebrating the "borderless world" claim) for any political and legal settlement to closely follow previous national political bargains; the justifications that have previously been used to underpin IPRs do not have sufficient purchase on the current global situation without a mechanism for recognising the social costs or down-side of any "bargain" which promotes private rewards. As Graeme Dinwoodie stresses:

"the incorporation of intellectual property agreements within trade mechanisms might (if trade concerns become paramount) deprive intellectual property policymaking of the rich palette of human values that historically has influenced its formulation. Considering only the ability to exploit comparative advantage in the ownership of intellectual property rights would appear to make international intellectual property policy less multi-dimensional" [24].

It is this lack of multidimensionality that is the key problem: Given the vast inequalities evident in the world, the impact of these inequalities is not recognised when the social costs that are required for the continued support for private rewards remain largely hidden in multilateral policy discussions. There is also considerable tension between the Universal Declaration of Human Rights, which aims to ensure everyone’s right to enjoy the fruits and benefits of cultural life and scientific development, and the TRIPs agreement’s underlying logic. While there is also some allowance for the enjoyment of private benefits from innovative and creative activity, the Declaration implies that it is (global) societal benefits that should be given priority [25]. However, the TRIPs agreement and the political forces behind its promotion have always been more concerned to ensure the maximum reward is captured by "owners" rather than promote any notion of social justice, outside the relatively formalised calculation of overall globalised social "efficiency" centred on innovation rather than its diffusion.

 

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Digital right management and the crumbling norms of copyright

Having laid out the context of the global governance of IPRs and examined the normative underpinnings of IPRs I now want to turn to a specific problem: The deployment of digital rights management (DRM) technologies and their impact on the social, and normative, supports of copyright. Digital rights management software has been included in regional (EU) and national (U.S.; U.K.) legislation [26]. These moves were prompted by the 1996 WIPO World Copyright Treaty, which many developing countries are also under pressure to adopt. The treaty includes under Articles 11 and 12 significant measures as regards the introduction of DRM technologies and their enforcement as IPR-related technological solutions to "piracy," although the form of implementation of such requirements remains a national concern. However, the protections enshrined in U.S. legalisation, at least, go beyond those required by the treaty [27]. As the debates around the Digital Millennium Copyright Act in the U.S. have already demonstrated the use of DRM, and its legal protection, can represent a major challenge for "fair use" [28]. It seems at least possible that DRM may consolidate (or even worsen) the wealth effects disrupting the distribution of information and knowledge across the so-called "digital divide." This is manifest most generally in the collapse of the generally accepted social norms of content usage; on one side content users have utilised technology they have legally purchased to "infringe" the rights of content owners (MP3 technologies being the obvious example), while on the other, content users have sought to (re)establish robust control over their knowledge assets in the marketplace for use.

One of the key elements of the "problem" of DRM is therefore the solidification of aspects of copyright law which have hitherto been amenable to a certain amount of indeterminacy, which is to say there have been areas of legal greyness. Laws supporting the institutionalisation of intellectual property have constructed a balance between the rights of owners, established through the justifications laid out above, and the public realm of knowledge, most obviously reflected in the essentially non-rival character of non-commodified knowledge. Indeed as Glynn Lunney has stressed, this "lack of physical rivalry is both the defining difference between copyrighted works and more traditional private goods, and the essential justification for the fair use doctrine" [29]. Where these two aspects of IPRs meet (specifically in the issue of "fair use," of which more below), rather than construct a firm division, historically the law has left an area at the edge of the realm of IPRs’ coverage which has been de facto unenforced as regards owners’ "rights" but de jure within the realm of protection owners might expect. For most industries this led to a tacit acceptance of "piracy" or "leakage" from their property while this was of relatively minor extent. Thus, despite claims that "home taping is killing music," the music industry accepted some home compilations and a gift economy of private cassette tapes as beyond the realm of their ability to control. This acceptance was a reflection of the clear degenerative copying technologies then available to home consumers. Similarly, for book publishers, certainly photocopying may have eaten into some sales but photocopying whole books while sometimes undertaken was at such expense of time and money (copying was hardly a cheap option) that little real effort was expended tracking down individual "pirates" (copy shops on university campuses were another matter). In both cases the serial copying of "pirated" copies led to such quality shortcomings that the central reproduction technology retained its advantages. However, digitalisation has changed this state of affairs.

Digitalisation removed the quality/copy trade-off, by allowing generational copies to be for all intents and purposes exact copies of the original digital artefact. This disrupted the grey area of de facto accepted illegal copying by reducing the utility costs incurred by the non-authorised user. Now, copies were as good as originals, the monopoly on high quality reproduction was removed from authorised distribution channels. We might call this the move to a "frictionless environment" for content, where successive copies do not degrade (Scott, 2001). This immediately raised the potential (if not immediately actual) threat that once a digital good was distributed, unauthorised copies would compete throughout its market for consumer use. And whereas in the past the users of copied goods would receive an inferior product, and thus the price discrimination between authorised and unauthorised copies was clearly reflected in the quality of the knowledge carriers used, digital copies removed this distinction. Concerns about the cannibalisation of markets by pirated copies led swiftly to a number of companies developing DRM products for use by the content industries. The speed of technological advance has "forced" the content industries to respond technologically, rather than endure the relative slowness of legislative change [30]. However, this also means that the previously legitimated political process for (re)balancing private and public rights/benefits has also been side-stepped.

At the core of DRM is the removal of the area of greyness which had allowed some flexibility in the public/private balance for IPRs; DRM technologies were intended to shore up private rights and finally make them reflect the rights that, it was claimed, had been encoded for years in IPR laws. Legal rights would be encoded in technologies that made infringement impossible, less reliant on unevenly recognised social norms of content use underpinned by the narratives of justification for IPR protection. However, at the same time this also made the private inroads into the public realm much more obvious by removing the mediated area older technologies had left as a "buffer-zone" between contending interests over knowledge and information usage. The use of DRM reverses the burden of proof. Selena Kim sums up the problem well:

"In the analogue world, people go ahead and use the work if they believe themselves entitled to do so. It is only if users are sued for infringement that they invoke the relevant copyright exception as defence. In a digital world encapsulated by access control and embedded with copy control, a potential user of a work may have to ask for permission twice: once to access a work, and again to copy an excerpt. The exception to copyright is not being put forward as a defence; it is put forward to show entitlement to use the work" [31].

There are two problems immediately apparent: Firstly the assumption is that private right are privileged and thus public access is in the gift of the owner, which represents a significant denial of the role of the public domain; secondly, by making such requests explicit and user driven, owners may be swamped by requests (producing delays), while users may be dissuaded at the margins from using certain informational resources due to the process of requesting permissions. More generally there may be a "chilling" effect on the use of copyrighted materials.

As Jessica Litman has argued, copyright laws "never gave copyright owners rights as expansive as those they have recently argued were their due" during debates around the "copyright problem" online [32]. Indeed, as Lydia Pallas Loren notes:

"The law has never granted copyright owners an absolute monopoly. Instead, the laws strike a balance between granting a certain level of protection and guaranteeing a certain level of access and use. The unregulated implementation of technological protection measures enables content providers to obtain protections the law does not afford. Technological protection systems can and should be employed by copyright owners to capture rights permitted by copyright law. The law, however, needs to guard against the use of technological protection systems to capture rights not permitted by copyright law" [33].

Thus, the move to enact measures like the U.S. Digital Millennium Copyright Act (DMCA), have not necessarily reflected the balance of interests that copyright laws had slowly established over their half-millennia history, but rather represent an attempt to expand the rights of one specific interest, the owners, with little regard for the diminution of the other interests accorded weight by copyright in the past, the public or social good.

Siva Vaidhyanathan, discussing the DMCA, but with wider relevance, suggests that this reorientation of the legal institution of IPRs represents "four surrenders":

  1. the surrender of balance to control ... content providers can set the terms for access to and use of a work. There is no balance if the copyright owner has all the power;
  2. the surrender of public interest to private interest. The rhetoric of "intellectual property" in the 1990s was punctuated by appeals to prevent theft and efforts to extend markets. There was little public discussion about copyright as a public good that can encourage a rich public sphere and diverse democratic culture;
  3. The surrender of republican deliberation within the nation-state to unelected multilateral non-governmental bodies ...;
  4. The surrender of culture to technology ... [previously] copyright was a public bargain between producers and users. It was democratically negotiated, judicially mediated and often messy and imperfect. Now the very presence of even faulty technology trumps any public interest in fair use and open access [34].

These "four surrenders" have removed the grey area which allowed the contradictions between the fully expressed "needs" of rights holders and public (or social) users to remain unformalised, leaving an seemingly unresolvable conflict as a major political problem.

Thus, for instance, at the global level the use of this grey area by developing country users to bypass the high cost of many publications by utilising "fair use" doctrines, is likely to be circumscribed by the widespread introduction of DRM. The recent Commission on IPRs report (commissioned by the British Department for International Development) concluded that DRM technologies,

"rescind traditional "fair use" rights to browse, share or make private copies of copyrighted works in digital formats, since works may not be accessible without payment, even for legitimate uses. For developing countries, where Internet connectivity is limited and subscriptions to online resources unaffordable, it may exclude access to these materials altogether and impose a heavy burden that will delay the participation of those countries in the global knowledge-based society" [35].

The extra controls that subscription online services, and copy-protected products allow content owners have dissipated the hard won compromises for users which have been encapsulated by previous understandings of "fair use."

As noted above, the central role of IPRs is to construct a scarcity as regards use where none necessarily exists in the realm of information and knowledge. Fair use (like term limits under patent law) recognises that sometimes this is bought at too great a social cost and thus limits the monopoly rights enjoyed by the "owner" by allowing some non-remunerated "fair use." Or as Glynn Lunney sums it up:

"Once we acknowledge the public good character of copyrighted works, then, from an economic perspective, fair use must necessarily balance, on one hand, the potential public benefit of additional or better works from prohibiting the use at issue, and on the other, the potential public benefit from the use itself. In applying this balance ... we should consider directly what the public has to gain and what it has to lose for the use at issue given today's technology and associated market structures. Under this balancing approach, a use should be found unfair and hence infringing only where the copyright owner has proven by the preponderance of the evidence that society has more to gain than it has to lose by prohibiting the use at issue" [36].

This is to say that potential damages and future possible losses should be discounted and the actual current usage benefits should be privileged. This may have been the case in the past (although even then this is probably exaggerating the public benefits captured by fair use as regards previous content distribution technologies), but, DRM will have (and is already having) the effect of shifting this posited private/public bargain firmly in the direction of greater protection of "owners" rights, with a considerable diminution of social rights of public access.

Digital rights management, according to its defenders, merely enables copyright holders to finally establish the rights they have always had in law, in the realm of real economic relations. To this end, DRM attempts to control firstly access to content, and then aims to either control, or at least monitor, copying of material accessed. Although the technology is in its infancy, there are two different directions that its development follows in fulfilling these aims. Although these may not be mutually exclusive, [37] nor represent the only developmental paths, I have distinguished "hard" and "soft" DRM below. The problems each technological trajectory involves, while obviously linked are different.

 

Table 1: Characteristics of different modes of digital rights management

Digital Rights Management
"Hard"
"Soft"
character witholding monitoring
advantages owners’ control of all use flexible enforcement
problems "right to read"; fair use; over-enforced rights (i.e. restrictions on legal user behaviour) monitoring; intrusive modes of surveillance; over-enforced rights (i.e. hybrid files)
threatens knowledge commons privacy
example dedicated access shrink-wrap licences

The intent of DRM technologies is to manage rights to view or access, and subsequently to use or even copy, content. This reflects the perception of an unmanageable realm of the Internet by content users, and the companies who provide them with technologies to reproduce products from original content. Broadly speaking all DRM technologies are aimed at tracking and controlling the use of content once it has entered the market. As noted above, when there was clear generational degradation between copies, the exhaustion of copyright at first sale represented little real problem (at least as far as rights to reproduction are concerned). While markets for second-hand goods have always to some extent been in tension with the production of new items, the time limited nature of much content has meant that second-hand resale by first owners has generally (like copying) involved some cost (in the delay of purchase) to prospective purchasers of used content carriers. Indeed, given the physicality of the carrier, the exhaustion of rights has always allowed the legitimate sale of content items once used (hence the large second-hand book market which stretches back to the dawn of printing), not least of all as subsequent resale does not increase the number of copies in the market (outside the management of the original producer).

However, these aspects of the market for content have been severely undermined by digitalisation. The scarcity which was constructed through the physicality of the carrier alongside the institutionalisation of IPRs, is severely compromised by the unfettered use of digital copying. Content goods (including software) can be sold on as copies which are the same as the "originals," while the seller retains a copy for their own use. Thus, the unrivalousness of knowledge is reasserted, and the rights to reproduction which are central to IPRs are undermined. This has led many content providers (and other suppliers of digitised goods, such as software) to move toward a licence model of supply, with no final sale, and thus no question of allowing for an exhaustion of rights. Thus one of the key uses of DRM has been to establish continuing control over copyrighted content/goods and halt the problem of exhaustion or first-sale rights for digital content owners [38]. This can take place through "hard" control, or "soft" control.

Soft control, relies on the normative structures inherited from the pre-Internet/pre-digitalisation age: control is post-use. Content owners may litigate where infringement has been detected, and indeed soft DRM allows considerable possibilities for detecting usage, through registration, post-sale electronic advise of use (utilising Intel's unique processor serial number technology, for instance) and through the use of registration to allow web-crawlers to identify non-authorised users. This ability to monitor activity is itself part of a larger issue regarding the enhanced possibilities for surveillance that ICTs and the Internet engender [39]. In this instance, the use of shrink-wrap licences may involve purchasers agreeing to allow intrusive monitoring without fully realising the implications of information gathering activities undertaken by content owners. Nevertheless, while "soft" DRM may enhance surveillance by content owners in their bid to control and limit infringement, by virtue of being post-use, such control is still relatively open to normative debate and mediation. There can be arguments about whether a certain use was legal, or if illegal in a formal sense whether such use might be encompassed within accepted "fair use" doctrine. Additionally, due to the costs of legal action, small infringers may continue to act with little fear of prosecution. Where prosecution of small users has been attempted, this can sometimes be a political quagmire, as the actions around Napster and other MP3 file-sharing copyright infringements have revealed.

The use of soft DRM may also constrict and abuse the rights of the user. As Corey Field has demonstrated in the realm of music engraving software, the license agreement for many users reserves the rights of the resulting file with the software manufacturers (as regards digital distribution rights). Hence, the use of the engraving software to transcribe a composition by the user (in which their own copyright resides), produces a "hybrid digital file" which the software manufacturer claims as their own [40]). This use of contract law to enclose the results of a technologies use seems unlikely to stand up in court, although few private users will likely wish to risk costly litigation to settle the matter. Perhaps more likely, most users will not notice such constrictions, and the software manufacturer will no doubt be unlikely to prosecute infringements which cause little market impact. Thus, while it raises a umber of serious issues, "soft" DRM allows a space for some continued debate and discussion regards the public/private balance; it continues to work with the "grey area" intact. This is not the case under "hard" DRM technologies.

Hard DRM is a "technological fix" to the problem of unauthorised copying; it is intended to make it impossible. However, recognising the difficulties that technological fixes have encountered in the past, the content industries and their technology suppliers managed to establish legal protection from circumvention of their mechanisms for registering unauthorised usage, hence the robust anti-circumvention elements to the DMCA and the parallel EU legislation. Unlike soft DRM which like previous copyright law has been focused on post-hoc enforcement, hard DRM is aimed at constricting users behaviour to ensure that infringement is not merely discouraged but impossible. This has been defended on the basis that this technology has finally enabled the sort of rights’ control that has always been envisioned by copyright law. The rights of the owner have finally become fully enacted prior to any litigation against infringers. This presents a number of problems, not least of all the disappearance of a realm in which issues about fair use could be explored. Indeed, even where circumvention of the technological constrictions of DRM might be used to merely enact legally recognised fair use, such by-passing of the technical constrictions on use has been rendered illegal (Nimmer, 2002). The historically unhappy acceptance of fair use within the content industries has been withdrawn.

Hard DRM over enforces the legitimate rights of rights’ owners and hence disturbs the previously relatively settled norms which balanced private rights and the public knowledge commons. The development of hard DRM technologies has therefore undermined the zone of accepted infringement which separated the public and private realms of knowledge and information (the "grey area"). Technological advances have transformed this zone in the past. The emergence of consumer reproduction technologies that lowered the financial costs (and quality problems) with copying are not new. For most of the history of copyright the private copying of rights-protected sources has been either laborious (i.e. direct transcribing) or costly (industry standard reproduction technologies have been beyond the pocket of the individual), and hence there was little opportunity for individuals to infringe content owners’ rights. What recognition of "fair use" as had been established was the use of small sections of one work (without payment) in another work, for criticism, for study and for research purposes. However, new technologies produced new opportunities, and thus issues around private copying became more important for the protection of content producers’ income streams. Although photocopiers while widely available for decades they have only recently (with the advent of cheap scanning technologies) become a home-use product. The first real technological challenge to IPRs’ private rights regime was the home video recorder.

The marketing and widespread purchase of cheap domestic video-recorders, led to the landmark case Sony Corp. v. Universal Studios in 1984. Content owners argued that the recording of programmes was an activity which allowed such copies to be distributed without further payment to the rights owners. However, the U.S. Supreme Court settled the matter in favour of "fair use," and for decades this judgement has had considerable international legal-normative influence on the arguments about the balance between private rights and social use of information products. Because the Court accepted the argument that while copyright infringement was possible, most use would merely be for recording and watching programmes at a more favourable time ("time shifting"), the technology should not be banned or technologically circumscribed as requested by copyright holders [41]. Subsequently similar definitions of fair use of video recorders were established world-wide, sometimes encapsulated in new laws which recognised certain uses as "fair" even if involving unauthorised usage, and sometimes reflecting the precedents set by Sony vs. Universal in common law. The notion of "fair use" remains a significant aspect of IPRs even if is also regarded by many content owners as a infringement on their legitimate interests.

Of course, industries that develop and manufacture technologies enabling such actions operate in direct tension with intellectual property (content) companies (Avenell and Thompson, 1994). Manufacturers of recordable CD technologies (now standard in many desktop computers) or those who have made MP3 players widely available, and before them the developers of audio cassette recorders, can only profit due to the disregard of copyright holders’ proclaimed rights. The "parasitic" product violates the commodity relationship, carefully established in the first instance by the intellectual property producer, by allowing the dilution of the constructed scarcity through copying. But it also indicates that such behaviour is far from unacceptable: Although the small print in adverts for these technologies makes some reference to not violating copyright, the main (big print) text stresses exactly this use (or strongly implies such use through words like "ripping," a hacker term for copying, or "burning" to indicate the making of new CDs).

It is difficult against this constant appeal to a "hacker ethic" for copyright holders to present an unchallenged argument about theft and piracy. Furthermore, in some cases (of which the Sony minidisc and MP3 players are the most obvious examples) companies are on both sides of the divide, complaining about rights infringements (in their music industry divisions) while also supplying the very technologies that facilitate the practice (from their electronics divisions). This tension between content suppliers and hardware manufacturers (or corporate divisions) also reveals the dependency on legislation even of DRM’s technological strategy to curtail content "piracy." Without some form of explicit (universal) agreement from hardware corporations, there is still a firm requirement for legislative limitations on "circumvention technologies" [42]. Hence, Article 11 of the WIPO Copyright is explicitly concerned with forbidding circumvention tools. Implementing this article has been taken furthest in the U.S. and the EU where not only the manufacturing of such technologies is illegal (under the DMCA and the EU Copyright directive [43]), so is trafficking in them (which is to say passing your software "crack" on to someone else).

Even so, it is not completely evident that DRM represents a relatively comprehensive technical fix to the problem of piracy of content. A recent paper by employees of Microsoft (although, explicitly noting that the conclusions may not be those of their employer) suggested that the spread of what they refer to as the "darknet" of illegal content transfers and interactions

"will continue to exist and provide low cost high-quality service to a large group of consumers. This means that in many markets, the darknet will be a competitor to legal commerce" [44].

The authors of this paper see essentially a two sector world of content distribution: one where those wishing to remain legal interact and purchase content; and a sector where intellectual property norms are essentially absent. However, other commentators, perhaps most famously Lawrence Lessig, have argued that DRM and other linked control technologies may allow powerful industries to "leverage" their control of "real" markets into a control of "virtual" markets on the Internet [45]. This is not to say Lessig and others are necessarily against copyright or other forms of IPRs, rather they are concerned about the likely re-orientation of IPRs balance between private rights and public goods. As Lessig notes, recently IPR regimes have expanded beyond their initial justification (as encapsulated in law):

"The restrictions [IPR laws] imposes are artificial ... they simply benefit one person at the expense of another ... [But] If the extremes of these constraints are not necessary, if there is no good showing that they do any good, if they limit the range of creativity by virtue of the system of control they erect, why do we have them?" [46].

Indeed, it is this normative problem which reveals the questions around DRM technologies not be questions of technical efficacy and cost, but rather of how we mediate clashing interests in a relatively new technological realm.

The legitimation of IPRs, as laid out in the extensively used narratives of justification I discussed above, has always assumed a set of social goods which property rights in knowledge served. Chief among these was the notion of social advance being served by the innovation and creation that copyright (alongside other forms of IPRs) supported. While these justifications stressed the private rights, they also implied a knowledge commons which would be enlarged by the temporary enclosure of knowledge to encourage further intellectual activity. The globalisation of the control of content which DRM allows, produce two clear problems for global society as regards the enforcement of IPRs: A disjuncture between the society in which rights are protected and the society in which users costs are evident; and the breakdown of the mediated settlement over IPRs leading to a "blowback" which is already evident in the music industry. The desire to enact monopoly controls has led content users to become more cynical about perceived profiteering by content providers, and hence the rhetoric of responsible consumption (allied to the narratives of private rewards) have started to crumble (see Scott, 2001). Both these problems represent a breakdown in social norms which have previously underpinned the recognition, use, and acceptance of IPRs.

As I noted above Higgott and Ougaard have suggested that there is a disjuncture between global interconnectivity and a "thin community." The global use of DRM reveal this disjuncture in the realm of copyright over the Internet. While DRM allows the furtherance of the private rights aspect of IPRs, it systematically constrains the public realm. When this happens in national jurisdictions there is a real chance that public opinion can be mobilised politically either to restrain the actual enforcement of rights and their scope, or through legal means lead to the establishment of "fair use" as a recognition of the continued needs of the public realm. Furthermore, in national jurisdictions, the bargain between private rights and public access has a easily discernible pay-off, in that the society involved reaps the benefits of innovation and creativity relatively immediately. In the global realm, given the extremes of economic inequality, alongside the necessarily diffused user communities, the rewards flow to a relatively closed group, while the social advantages of advances may be limited by the constrictions put on use of content goods (especially under hard DRM). Thus, where poor groups are excluded from use, access to ascertain any fair use demands may not be possible (i.e. they may not be able to discover what specific content-goods might serve their needs without first paying for them) [47].

Indeed, DRM is being implemented by content owners globally (across the Internet especially) while the limitations on private rights (despite increasing global harmonisation of IPRs through TRIPs) are still largely established in national jurisdictions. In this sense, DRM allows content users to side-step nationally established public use laws and practices to further their own benefits [48] And, the reverse engineering of specific technologies (a developmental path followed by a number of successful industrialising countries in the past) has been ruled out as regards the new technological wave of ICTs [49]. Furthermore, when a global democratic mechanism for supporting fair use does not exist, the limitations owners put on use may severely constrain the social developmental good that such content may provide. Demands for use outside such rights’ control mechanisms currently lack a clear mode of articulation.

The collapse of the norms of social value, both at the global level, and at the national level where owners’ rights have been privileged through the legal protection of DRM technologies, has also led to the widening collapse of social acceptance of the normative value of the central justification narratives which have supported IPRs for some centuries. This increasing questioning of norms has led to wide-spread electronic civil disobedience, ranging from the copying and distributing of MP3 files (and now pirated DVD files), to a strike by content providers through the use of open source journals and freely available e-journals within academia. In one sense this could be seen as an unintended "blowback": by removing the grey area of mediated use and the acceptance of some level of individualised infringement of owners’ rights, behaviour that has been seen as legitimised through fair use has continued, but is now seen as a political blow against a set of private interest that are not regarded as legitimate. Perhaps the key issue here, is the enjoyment of rights, predicated on stories of individual endeavour and creativity, by a set of globalised content multinationals. The use of DRM to finally establish robust rights to protect content, has prompted a closer examination of whose rights are being protected. While a story is told about individuals, when users examine who has enacted their rights, they see not artists struggling to survive, not writers prospering from their works, but rather large faceless and very profitable corporations. Copying then becomes a crime without a victim.

 

++++++++++

Conclusion

At least part of the problem for copyright as regards the new technologies that the move to digitalisation has unleashed, is that while in the past (at least at the individual level) copyright law has been "honoured in the breach," DRM technologies represent an attempt to get all users to adopt a more stringent legal protection for owners’ rights. Such protection is both more stringent than previously legislated, and (perhaps more importantly) much more robust than normal, everyday users of content, had ever really understood copyright law to encompass [50]. The grey area between private rights and public/social use has been eroded, and there has been a very real move to further privilege owners’ rights which has now made the previously arcane issues around copyright of much more direct social impact. This is not an issue of technical realignment, but rather a political issue of some importance. Copyright is not a natural right, not ahistorical, but rather a political artefact of modern capitalism. As such, while we might be happy to recognise the rights of owners in many circumstances, these interest should never be immune from political or democratic deliberation.

And, although the potential delivery of method of content has changed with the arrival of the global electronic network, historical ironies abound. As Ruth Gana points out, European countries and the U.S. only began to protect foreign content relatively recently, because governments recognised that the "availability of literature at affordable rates is crucial for meeting educational objectives that are a vital part of the developmental process" [51]. To support their developmental objectives these countries explicitly limited the benefits of copyright protection to domestic authors, which effectively rewarded the "piracy" of foreign authors works. Indeed, the U.S. only entered the international copyright system a decade or so prior to the negotiations that produced TRIPs, although by then measures had been enacted bilaterally to protect some non-U.S. authors and rights holders. This might indicate that only at a certain level of development does the widespread protection of intellectual property in content and ICT-related technologies actually aid further development. The "one-size-fits-all" TRIPs settlement for the governance of IPRs is little more than the imposition of the interest of the powerful on the powerless. Already, significant and well-organised resistance has emerged as regards pharmaceutical patents for medicines in the developing world, such political campaigns need to be linked with the problems discussed above in the realm of copyright.

Certainly, at both the level of international relations, and more localised socio-economic interactions, the realm of copyright is subject to considerable upheaval, and the public realm of knowledge access is under continued attack. Thus, to develop a new politics of intellectual property, we might look for inspiration to another movement which reacted against the degradation of a public realm: Environmentalism. James Boyle notes that the environmental movement was deeply influenced by two powerful perspectives: Ecology and welfare economics. It drew from ecology the recognition of complex and unpredictable connections between living things in the real world, and from welfare economics the recognition that markets frequently (and quite normally) fail to fully internalise the costs of property use. Crucially, these ideas were not developed in the mainstream of political discourse but on the margins and then popularised. A similar position may currently obtain in the nascent global politics of intellectual property, though at present "we have no politics of intellectual property in the way that we have a politics of the environment" [52]. This is a problem as in "terms of ideology and rhetorical structure, no less than practical economic effect, intellectual property is the legal form of the information age" [53]. Limitation to access through copyright, as well as other high-profile issues centred on access to knowledge-related goods (such as the disputes around patents for AIDS-related pharmaceuticals) represent serious socio-political problems, yet they are still too often treated as arcane non-political legal issues.

Decisions are currently made on behalf of a small group of intellectual property owners whose perception of costs is linked to the narrow issue of individualised innovation and reward. There is little awareness of the interconnectivity of various types and flows of knowledge or of the way these may work together to bring about effects both nationally and globally. While this brings together a number of disciplines in the social sciences (for instance, the sociology of knowledge, social psychology, information economics, philosophy), the overall complex knowledge environment is still incompletely understood. A similar political effort that produced a change in the politics of natural resources and the environment needs to shift the conception of the knowledge environment to establish a significant role for a broad view of global social utility. The knowledge commons should be established as a global resource not one that should, or needs to be, carved up for individual gain. In this sense Boyle suggests the politics of intellectual property is in a similar stage of (under)development as the environmental movement was in the late 1950s or early 1960s. Despite flurries of interest and outrage at specific issues, two things are notably lacking:

"The first is a theoretical framework, a set of analytical tools with which the issues should be analysed. The second is a perception of common interest among apparently disparate groups, a common interest which cuts across traditional oppositions" [54].

It is here that the frameworks of ecology and welfare economics did the work of constructing a politics of the environment, revealing some disturbing conclusions on which a popular movement could built.

Therefore, in much the same way that the environmental movement in one sense "invented" the environment, a politics of intellectual property needs to (re)invent the public domain of knowledge; to re-embed individuals in the socialised body of knowledge. As Boyle notes, the

"structure of our property rights discourse tends to undervalue the public domain, by failing to make actors and society as a whole internalise the losses caused by the extension and exercise of intellectual property rights. The fundamental aporia in economic analysis of information issues, the source-blindness of an "original author" centred model of property rights, and the political blindness to the importance of the public domain as a whole ... all come together to make the public domain disappear, first in concept and then, increasingly, in reality" [55].

By individualising creation, by disembeddding it from the social milieu from which all knowledge is drawn, IPRs deny the importance of the public realm, and by doing so reward only a small group of rights holders rather than the carriers of social knowledge, and more importantly ignoring the social welfare benefits of those excluded from use, not by ignorance or lack of interest, but by their poverty.

Thus, the breakdown or collapse of social norms around copyright on the Internet, which has been prompted by the emerging DRM technologies needs to be situated in a more general (global) politics of intellectual property, a politics that seeks to reassert the importance of the public side of the bargain at the centre of the legal construction of IPRs; a politics which stresses the need to reassert political rights to knowledge and information at least equally with the currently privileged private property rights. This is not an "all intellectual property is theft" argument, but crucially it is an unwillingness to accept that the only aspect of IPRs worth thinking about are its private rights. As Robin Gross puts it:

"Both sides of the copyright bargain deserve respect. Copyright imposes responsibilities as well as rights upon both authors and the public. It is simply not fair for one side to take all the benefit and accept none of the responsibility of the copyright bargain. This applies equally to authors and the public. The public must ensure that authors are economically rewarded for their creative gifts, and authors must ensure that the public is able to retain its rights and abilities to use and access creative expression" [56].

Or, echoing the distinction between property rights and political rights, Ruth Okediji argues:

"If stronger property rights are justified (or necessary) because welfare gains from increased creativity are jeopardised by the ease with which established rights may be undermined by [content] takers, then stronger countervailing user rights are also required to, at least, maintain welfare benefits for users because new technology enables owners to "lock up" information content ... As copyright is strengthened and expanded to accommodate new technologies, so should the model of public welfare be adjusted to account for how new technology promotes or hinders access and use of copyrighted works" [57].

For this (re)balancing to have some hope of success, a new politics of the knowledge commons needs to weigh in on the side of the public domain, to balance the well established and powerful interests which have been mobilised, not so much by authors as by the content industries, to protect, advance and expand their commercial rights to profit form the exploitation of content. Any rebalancing will require political action. The reformism that is indicated by this paper is not a reformism limited to formal legal instruments, but rather represents the need to place IPRs firmly within the political realm of contemporary (global) society, and refuse any claims that these issues are too arcane for political deliberation and engagement. End of article

About the Author

Christopher May is a Reader in Intentional Political Economy, School of Politics, University of the West of England.
E-mail: christopher.may@uwe.ac.uk

 

Notes

1. This article was originally presented as a paper at the Information, Communication, Society: Research Symposium, Balliol College/Oxford Internet Institute, September 2003.

2. Braithwaite and Drahos, 2000, pp. 61-64.

3. Sell, 2003, chapter 5.

4. For instance, patent protection for AIDS treatments in developing countries, see May (2002b).

5. See May (2000, pp. 6-11 and passim) for a fuller treatment of the various forms of IPRs. Where aspects of specific forms of intellectual property are important for the argument below they are covered in the discussion.

6. Matthews, 2002, p. 11.

7. Matthews, 2002, p. 31.

8. May, 2000, p. 88.

9. Extended discussions of the negotiations that led to TRIPs can be found in Matthews (2002, chapter two) and Stewart (1993, pp. 2245-2333).

10. Hoekman and Kostecki, 1996, p. 156.

11. Oddi, 1996, p. 440.

12. Space precludes a detailed account of TRIPs numerous sections; Keith Maskus (2000, chapter two) offers a good concise summary of the agreement, as does Matthews (2002, chapter three) but also see the discussion in May (2000, chapter three).

13. Polanyi, 1957, pp. 72ff.

14. Plant, 1934, p. 31.

15. May, 2000, pp. 22-29 and passim.

16. May, 2000, pp. 18-21.

17. North, 1990, pp. 34-35. A recent popular iteration of this general perspective on the social utility of property vis-á-vis development can be found in de Soto (2000).

18. Donald Richards (2002) links this third set of justifications back to Jeremy Bentham and utilitarianism, although it seems to me a much less clear line of development than the explicit philosophical foundations of the first two narratives, which in itself may be a comment on the ubiquity of utilitarianism in contemporary political discourse, of course.

19. Commons, 1957, p. 53.

20. Waldron, 1993, p. 862.

21. Patterson, 2001, p. 707.

22. Higgott and Ougaard, 2002, p. 12.

23. Gakunu, 1989, p. 364.

24. Dinwoodie, 2002, p. 1004, emphasis added.

25. Cullet, 2003, p. 152.

26. A comprehensive guide to the legislative changes made by the EU, Australia, Japan and the U.S. in response to the WIPO treaty can be found in Kim (2003) which, however, rather optimistically concludes: "Hopefully, in the future, with decreased transaction costs and an efficient way to deal with access to works, there will be fewer problems [regarding "fair use" access]" (Kim, 2003, p. 119). I am not so sure.

27. Rice, 2002, p. 121; Jeanneret, 2002, 164.

28. Although the U.K. Copyright Designs and Patents of 1988 would seem to offer similar protection to DRM technologies, this has been subject to considerably less comment, which may tell us something about the dominance of U.S.-related issues on the Internet!

29. Lunney, 2002, p. 994, emphasis added. As an aside, Lunney (2002, p. 995, fn. 96) also notes: "One of the more important, yet ... unremarked, aspects of copyright law is that we are, in some sense, trading restrictions on access and higher prices for the works we really want in order to ensure financing for works that we really do not want."

30. Kim, 2003, p. 97.

31. Kim, 2003, p. 112.

32. Litman, 2001, p. 114.

33. Loren, 2002, p. 143.

34. Vaidhyanathan, 2001, pp. 159-160.

35. Commission on Intellectual Property Rights (CIPR), 2002, p. 106.

36. Lunney, 2002, p. 1030.

37. For instance systems approaches which combine surveillance through unique processor identifiers, with digital online deliver (for single user), once identifier has been confirmed as legitimate customer, sir between these two approaches. See Weinberg (2002) for a technical discussion of this approach.

38. The practical and ethical conflicts around the issue of exhaustion are discussed at some length by Tai (2003).

39. See May, 2002a, pp. 106-111; Lyon, 2001.

40. Field, 2001, p. 6, and passim.

41. Jeanneret, 2002, pp. 171-172.

42. Kim, 2003, p. 98.

43. The European Parliament and Council Directive on "Harmonisation of Certain Aspects of Copyright and Related Rights in the Information Society," to give its full title.

44. Biddle et al., 2002, para 5.2.

45. Lessig, 2001, p. 200, and passim.

46. Lessig, 2001, 217.

47. This has led Ruth Okediji (2000) to argue at some length that although there are some aspects of "fair use" that can be discovered within the TRIPs agreement (and hence it is hardly side-stepped by the agreement) such provisions are fragmented and unsatisfactory. She argues that what is required is an "international fair use doctrine" which would better reflect the explicit objective of Article 7 of TRIPs which stresses the agreement’s support for national legislation that balances rights and obligations.

48. Loren, 2002, p. 142.

49. Rice, 2002, pp. 123-124.

50. Litman, 2001, pp. 111-114; 195; also Scott, 2001.

51. Gana, 1996, p. 327.

52. Boyle, 1997, p. 89.

53. Boyle, 1997, p. 90.

54. Boyle, 1997, p. 108.

55. Boyle, 1997, pp. 111-112.

56. Gross, 2002, p. 191.

57. Okediji, 2001, 181.

 

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Editorial history

Paper received 15 October 2003; accepted 27 October 2003.


Contents Index

Copyright ©2003, First Monday

Copyright ©2003, Christopher May

Digital rights management and the breakdown of social norms, by Christopher May
First Monday, volume 8, number 11 (November 2003),
URL: http://firstmonday.org/issues/issue8_11/may/index.html





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