A Critique of Benkler's Argument for a Commons-Based Content Layer
This piece questions the premises underlying Benkler’s argument for a more commons-based regime for the “content layer” of information outputs. Benkler, p. 392, 439. I discuss three of Benkler’s premises, which argue that exclusive intellectual property rights, like patent and copyright, are 1) inefficient; 2) unfair; and 3) not needed to encourage production. Benkler, p. 36-37, 303. I contend Benkler is incorrect as to premises two and three.
A Response to the Inefficiency Point
I concede that charging for one’s information outputs is inefficient, since, once the information is produced, the marginal cost of an additional person using the output is zero (Benkler uses War and Peace as an example). Benkler p. 36-37. While it would be most efficient for Tolstoy to give away his book, efficiency is not everything. Most rights are inefficient. For example, it would be more efficient to abolish the Self-Incrimination Clause and require guilty defendants to turn themselves in, but we nonetheless keep it. Therefore, even though proprietary rights are inefficient, this is not a convincing reason to abandon them.
Benkler’s Fairness Critique
Secondly, Benkler argues that a strongly proprietary regime is “unjust.” p. 302-03. According to Benkler, a proprietary regime denies poor people basic informational needs because they cannot pay, and is hence less fair than a commons-based regime that would grant them free access to all information outputs. See id. at 303, 307. I contend that 1) this argument proves too much; and 2) commons-based regimes treat producers unfairly.
The Critique Proves Too Much First, if unfairness in distribution is reason to abandon proprietary rights, all proprietary rights would have to go since unfairness in distribution is an unfortunate reality. Benkler does not seem willing to accept this conclusion. See p. 308 (discussing the “acceptance of market economy as a fundamental component of free societies”). Furthermore, commons-based regimes go too far in addressing inequity: not only do they provide free goods to the people who cannot afford them, but they also are a windfall everyone who would otherwise pay for the goods. Benkler is correct to the extent he argues denying poor people the basic informational necessities is unfair, see id. at 303, but it does not follow that proprietary rights themselves are unfair or that a market system is unfair. Subsidies could provide the basic necessities, would avoid a windfall to rich people and would keep proprietary rights to recognize producer’s labor. This brings me to my next point.
Commons-based Regimes Fail to Adequately Recognize Labor Secondly, as Benkler notes, some justice theories fail to adequately consider responsibility, p. 303-04. A commons-based regime also suffers from these flaws, because it does not adequately compensate individuals for their labor. The creator may have invested much time, money and effort into producing the information output. See John Locke, Second Treatise on Government. It seems ludicrous to say that Tolstoy should receive nothing for his work while others should have free access to it; this would allows others to free-ride on Tolstoy’s efforts. Furthermore, free access would prevent producers from making a living. As Terry Fisher notes, even if some people would produce for free, this does not mean it is fair to create a regime that requires this outcome. See Fisher’s October 25, 2004 posting to Lessig’s Blog. Therefore, I argue that information producers should have proprietary protections in recognition of their labor.
Proprietary Rights are Necessary to Incentivize Production
Finally, I disagree with Benkler that patent and copyright are unnecessary to incentivize information production. First of all, as Benkler acknowledges, p. 40, patent protection is absolutely crucial to the biotech industry. An FTC report on this subject noted that the biotech industry might not exist without patents. Federal Trade Commission, To Promote Innovation: The Proper Balance of Competition and Patent Law and Policy (October 2003) p. 81. Thus, commons-based regimes cannot provide adequate incentives, at least in some areas. Furthermore, even if some people would have produced an information output without proprietary protections as an incentive, like Benkler suggests, see p. 105, others might not have. For example, without music copyright, music would be produced because some musicians would be willing to play for free or might be able to garner sufficient profits from concerts to make a living. See Fisher’s October 25, 2004 posting to Lessig’s Blog. Nonetheless, the lack of incentive may cause musicians who cannot rely on either of these options to halt production. For example, a composer who relies upon royalties for his income may be forced to get a different job.
My Suggestion: Combine the Existing Creative Commons Model with Subsidies
The “Creative Commons” initiative coupled with subsidies to provide basic informational necessities for the poor are an ideal system. See p. 455-56. The elective option of Creative Commons licenses enables more efficient use of works without requiring authors to labor only for the benefit of others. People who need incentive to produce (like a salary) can still make a living, while others can give away their work if they so choose. This solution addresses Benkler’s most compelling concerns while preserving important facets of a proprietary regime.