As expected, in the second half of Justifying Intellectual Property, Merges shifts away from the discussion of foundational principles towards a more practical and normative policy discussion of IP law. While the first half of the book was interesting to a certain extent, it seemed like a very academic exercise, the purpose of which was questionable from the start ("In the vast majority of cases, the new normative grounding does not affect my view of correct policy in any way." p.11). I found the second half to be, in contrast, rooted in realistic practical considerations and therefore much more interesting and thought-provoking.
I was particularly interested in Merges' defense of a strong IP that focuses on protecting "creative professionals" (and notably, the big media companies) rather than amateurs, with the underlying assumption that creativity on the part of amateurs will not be adversely affected by such a regime. This view, which I found to have a lot of merit, is not uncontroversial: in fact, a lot of the online discourse on IP focuses on promoting the rights of the amateur individual creators at the expense of the large media companies who struggle to perpetuate an unsustainable business model.
Overall, I think I was persuaded by the author's basic idea--that is to focus on the creative professionals--even though I would not initially have considered crafting an IP policy on the basis of a distinction between paid professionals and amateurs. I do agree with the author's observation that "amateur culture in all its forms and all myriad glories can and will thrive even in the presence of strong property rights that support a creative professional class." (p.248).
The only part where I would disagree with the author seems to be on the creation of "add-on" content, and the activities of "remixers" and "mashup artists." While the author does go into a fairly detailed discussion of "Fair Use" doctrine, which could provide the basis for protecting add-on or remixing content, the author gives compelling reasons (but do we really need to bring up Locke and Kant again?) to side with the original content creators. Yet I think there are equally good reasons to defend Fair Use when applied to secondary works derived from original content.
There is plenty of content that, despite relying on previous content, is highly original. This is true even of some very ancient content. Sometimes the new content is more popular than the old, and probably desirable for society. I cannot help but think that there is a way to promote such new derivative content, while still protecting the rights of the original creators. I would take two questions into consideration when determining what to protect and what not to protect: first, how creative is the new material? second, how does it affect the old material?
The first question is admittedly the most difficult. Judging how creative something is seems subjective and not very amenable to a bright line legal rule. Yet in many cases, it would simply be a matter of assessing how similar the new content is to the old. Only if it is very similar to the old do we have a problem. In most cases, this might be a question of labor: how much labor did the secondary author contribute?
The second question is probably easier to resolve, and I think quite important. What I mean by it is primarily whether the new content adversely affects the original creator by competing against him. If the new content competes as a substitute with the old content, there are strong reasons for protecting the original owner. But where the new content does not cannibalize sales of the old, I tend to think that the old can only benefit from the greater exposure. As an example, consider Aerosmith's song "Dream On" and Eminem's rap song "Sing for the Moment," which uses samples from Aerosmith's song. I doubt that anyone listens to Eminem's song as a substitute for Aerosmith's song. If anything, I suspect that sales of Aerosmith's "Dream On" surged when Eminem's song came out.
I understand that Merges would still want the decision to allow such use to fall with the original author, Aerosmith in the example above. The author's position is easy to embrace and support: if one agrees that the original owner has a property right to his creation, one might agree that he has the right to be capricious and refuse any use of his content, for any reason. Yet if one thinks that the secondary content is valuable to society, one might want to consider whether the original content creator is economically harmed by the new content, rather than whether his feelings are hurt. There are other areas of law where we apply an objective measure of harm, rather than an individual's idiosyncratic preferences. I think we could do the same when it comes to IP.
One consideration remains: the secondary creator should be--to some extent--limited in his ability to profit off of the original creator's work without attribution. I'm not sure how this should be structured in terms of the law. Perhaps it should be enough that the secondary creator recognizes the work of the original creator, without having to pay a license fee.
The biggest problem with Fair Use lies in the transaction costs. Currently, the presumption is that the original content owner has a strong property right, and a Fair Use defense only serves to rebut an infringement claim. For a lot of artists, locating the owner of the original content and negotiating a license would be so costly as to deter creation of secondary content. The author's observation that IP rights are often not enforced does not really change the fact that, when they are, they present a serious problem for the creators of secondary content who must incur very big legal fees to defend against infringement claims. Basing a presumption of Fair Use on the two criteria above (i.e. originality and harm to original author) might be difficult through a bright line legal rule, but it would do away with the transaction cost of locating the original IP owner. Furthermore, it would make the original IP owner less likely to bring suit, if he had to prove that he was being harmed by the alleged "infringer's" content.
In conclusion, I am not convinced that one cannot achieve the proclaimed objectives of strengthening IP protection and reducing transaction costs (for the most part costs of locating IP owners and negotiating licenses) while still embracing a strong Fair Use policy that promotes secondary content. Such a Fair Use policy would admittedly deprive authors of absolute property rights--but maybe we should be willing to accept that.
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