Technology, Justice and Imagination: Intellectual Property Rule-Making for the Digital Economy

Abstract

This paper aims to approach the policy discourse on appropriate policies for digital intellectual property from the vantage point of distributional justice. It argues that it is impossible to evaluate the adequacy of specific intellectual property arrangements from a distributive justice point of view without addressing broader issues. A thorough discussion of distributive justice issues inevitably raises more fundamental questions of how we think about intellectual property, what values we associate with it and how we perceive the involved trade-offs. The paper therefore opens with a brief review of the fundamental shared beliefs about the values that IP systems encode and promote (section II). The first part is all about imagination, a central factor when dealing with the ‘what is?’ and ‘what should we do?’ with regard to digital intellectual property. In short I attempt in this section to contribute to an imaginative rewiring of the intellectual property discourse. Sooner or later, the discussion of specific policy details runs up against what are often implicit descriptive and normative presumptions that heavily prejudge the discourse, despite their questionable validity. Making these presumptions explicit and exposing their tenuous nature is a necessary step for outlining plausible alternatives. The strategy of choice for this endeavour is creative destruction. The demolition work involves an examination of the predominant conceptual, empirical and normative templates that steer intellectual property policy-making. They are found to be incomplete and inconclusive at best, misleading and biased at worst.This conceptual reframing sets the stage for the second part (sections III and IV), a more open and imaginative discussion of practical concerns and trends with regard to intellectual property rules for the digital economy . Along the way I will emphasize ‘distributive justice’ as an analytical corrective and argue that it offers a fresh and richer perspective on intellectual property in the digital realm. The scope and complexity of the issues makes an exhaustive discussion impossible. I will confine myself to some high profile developments that illustrate what is at stake.In order to avoid instant obsolesce in a rapidly evolving socio-technical environment the analysis does not so much dwell on the status quo as it takes a forward-looking approach. A more speculative outlook directs attention from current benefits and costs to future opportunities and challenges. The added uncertainty and higher margin of error appears justified. It is offset by enhanced opportunities to move beyond reactive end-of the pipe fixes to more profound questions of institutional choice and thus consider a more encompassing, systemic notion of justice.The concluding part (section V) is the most positive. And the most difficult. It seeks to move from conceptual critique to practical ways forward. I will try to point out some feasible innovative proposals that translate concerns of fairness and global justice into workable institutional arrangements for ownership and access in the digital age. And I will argue that we have already moved beyond mere scenario-building and can already find incipient proof of concept, offering a reasonable justification for more imaginative digital IP policies.