Copyright, digital sharing, and the liberal order: sociolegal constructions of intellectual property in the era of mass digitization

Abstract

Intellectual property (IP) rights policy has long been driven by rights-holder interests, leading to IP regimes focused on protecting private property at the expense of broadening public access to cultural works. The rise of instant, low-cost digital sharing practices, however, forces the sociolegal construction of IP as ‘property’ into crisis by contradicting the conception of creative works as commodities that can be exclusively ‘owned’ and exchanged. This cuts into a classic social science debate over how best to balance individual rights against collective interests, which has played out in liberal society through tensions between contradictory principles seeking to uphold the sanctity of private property (the principle of ‘Individual Freedom’) while also correcting social inequality (the ‘Equal Means’ principle). While IP policy has historically developed largely in accordance with Individual Freedom, digital sharing of creative works is premised instead on Equal Means. As these forces collide, the question at stake is whether crisis in the status quo conception of property rights disrupts existing power relations, with implications for the logic of policy development in the digital age. To address this question, I test for continuity of the predominant trend in IP policy-making using recent legislative changes to the Canadian copyright regime. I find that, contrary to expectations, policy changes do not manifestly favor rights-holders. Rather, legislative outcomes are split between modest protections for rights-holders and clear gains for rights of open access. I take this as evidence of the increasing complexification of IP policy in response to mass digitization.