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one particular product. For example, we can all listen to music, which allows the user several choices. However, if you want to know the temperature in Paris yesterday between 9:30 a.m. and 9:45 a.m., that particular temperature might be stored in only one particular database. Possibly only one satellite recorded certain meteorological conditions a week ago over India and Bangladesh, which are found only in one particular source. If there is an exclusive right attached to such a sole source, you then have a locked-in effect.

The second problem that comes with the exclusive right is in the digital field. Producers are so afraid that their products will be copied, disseminated, and used without payment of adequate remuneration that they may feel tempted to block entire markets. Why is this a particular problem of the digital market? Well, digital goods can be repackaged, resold, and reformatted in many ways. As Jerry Reichman formulated: “Small incremental value may be added.” All these incremental values may be quite useful to the end user, but initial producers tend to keep the market free of would-be competitors who start in product niches where incremental value is added to the initial product and who might quickly grow out of that niche into the way of the initial producer. But if the initial producer keeps the market niches free, this deprives us for the time being from having these useful value-added services. Needless to point out, these control strategies produce certain locked-in effects.

An example is publishers of newspapers and the electronic press-clipping services. For the time being, in many countries the publishers themselves do not offer electronic press-clipping services. Everybody would agree that it is highly desirable to have electronic press-clipping services. First of all, we could save a lot of paper and we would not have to chop down so many forests. Second, some trucks would not drive on our highways and pollute the air. It is much more environmentally friendly to have electronic press-clipping services. Yet publishers are very reluctant to allow third parties to come in because these third parties offering electronic press-clipping services on the basis of the primary publisher’s product—namely the newspapers that contain these information services—apart from appropriating the market for digital exploitation of the initial product might even erode the basis for the primary product. Certainly we do not want our daily newspapers to disappear just because we gave too much freedom to third parties with electronic press-clipping services. Such services might be useful today, but if they then erode the basis of the primary product we do not have any value-added service anyway. But on the other hand, we want competition in markets of value-added services. To achieve this is a difficult task for copyright.

Third, let us briefly talk about free access and accessibility. The term “open” is very often confused not with mere accessibility but with “free” and this, moreover, sometimes in the sense of “cost-free” access. However, it is very clear that the production of information is cost intensive. Therefore, “free” in free access cannot mean free access as in free beer.

Fourth, even understood in the way just described, it should be noted that free access and accessibility are somehow linked to pricing. Users say, and the rights holders agree, that the price should be fair and reasonable. True, one has to pay a reasonable price in order to obtain access to certain information, but how high can the price be, or how low does the price have to be, so that we still can speak of open access or free access? It conveys dollar by dollar and if ultimately we pay $1,000 just to view one page, this very much looks like locking information away. Information would then no longer be free, no longer accessible. But what if the information is worth $1,000, or if it cost as much to produce the information? Who is to fix the price? In industrialized states, state authorities supervising prices were generally abolished after World War II, and the only legal instrument of at least indirectly controlling prices is antitrust law, which controls abuses of dominant market positions. But there is no such abuse as long as the right holder only makes use of his or her exclusive right. It follows that contrary to common opinion the distinction between free open access and information being locked away is a rather blurry one. Some energy should be devoted to clarifying these issues.

Another issue deals with access blocks by technological protection measures (TPM) and digital rights management (DRM) systems. It has often been said that the answer to the machine is in the machine. Initially TPMs were designed or understood as mere antipiracy devices, in essence, to ensure that works would not get copied. But there is more to it. Similarly, DRM has been understood as taking paper-negotiated contracts into the digital environment, but there too is more to it. The value added, so to speak, by TPMs and DRM is what economists call product diversification and price discrimination.



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