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At present it seems that we want Post-it notes and Viagra and Britney Spears: The point is that this particular construction of culture and innovation is made possible by intellectual property. It is that transaction between the successful innovator or cultural artist and the public that intellectual property tries to make possible, together of course with all the failed innovations, for which there are no audiences, or at least no interested audiences.
The genius of intellectual property, then, is to allow the possibility of a decentralized system of innovation and expression, a system in which I do not have to ask for polka or house music to be subsidized by the state, where I do not need to go to some central authority and plead the case for the funding of a particular type of innovation. Instead, through the miracle either of my own initiative (and the capital markets) I can say “I have faith in this, and we will see whether I am right or wrong.” I will make a bet, or my investors will make a bet. That is the genius of intellectual property.
Now I am going to say a lot of very negative things, but do remember that initial positive idea. I want to start with an image of the old intellectual property system. (This is going to sound something like a golden age, which is not what I intend, but given the time constraints, I have to simplify somewhat drastically.)
The first thing to realize is that intellectual property rights used to be quite difficult to violate, because the technologies and activities necessary to do so were largely industrial. You could tell a friend about a book, lend it to him, or sell it to him, but you would need a printing press readily to violate its intellectual property protection. So intellectual property was an upstream regulation that operated primarily between large-scale industrial producers competing against each other. Horizontally it operated to stop them from simply taking the book du jour and ripping that off, or taking the drug formula and ripping that off. But it had relatively little impact on individual users or consumers and on everyday creative acts, whether in the sciences or in the arts.
Second, intellectual property protection was extremely limited in time. Prior to 1978, 95 percent of everything that was written, as my colleague Jessica Litman has pointed out, went immediately into the public domain, because a work was not protected by copyright unless you affixed a copyright notice onto it. Even if you did affix a copyright notice, the copyright would expire after some period of time. We started off in the United States at 14 years of copyright protection. Even up until 1978, this initial term had been extended only to 28 years, at the end of which you had to renew your copyright to maintain protection. A considerable percentage of the things under copyright went into the public domain at that point, because they were not renewed, because there was no salient market. They were then available for all to use. This has changed completely. Now the default is that everything is automatically protected. Every note written in this auditorium will not pass into the public domain until after your lifetime plus 70 years.
Third, intellectual property was tightly limited in scope. If you look at the areas that intellectual property now covers, you can see a sort of steroidlike bloating in every dimension. I look back at some of the confident phrases in my old syllabi: “No one would ever claim that a business method could be patented.” Wrong. “No one would ever claim that you could have intellectual property rights over a simple sequence of genomic data, like CGATTGAC.” Wrong. And of course, “copyright protection only lasts for life plus 50 years.” Wrong.
Intellectual property rights now cover more subject matter, for a longer time, with greater penalties, and at a finer level of granularity. These rights are now backed by legally protected technical measures, which try and make intellectual property protection a part of your use of a work, so you do not have the choice to violate an intellectual property right. They may also come with an associated contract of adhesion, which tells you how, when, and why you may make use of the work.
We have, in other words, a bloating or expansion on every substantive level—breadth, length, depth, and scope. But also a kind of expansion that, because of the changes produced by digital technology and other copying technologies, has changed fundamentally from being industrial regulation that affected upstream producers—the publisher, the manufacturer of the drug—to personal regulation that applies literally on the “desktop.”
In a networked world, copying is implicated in everyday acts of communication and transmission, even reading. It is hard for us to engage in the basic kinds of acts that make up the essence of academia or of the sciences without at least potentially triggering intellectual property liability. It is in fact the paradox of the contemporary period that at the moment when the idea of every person with his or her own printing press becomes a reality, so does his or her own copyright police; and for every person's digital lab, the potential of a patent police nearby.