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A Creative Commons? Summary and Conclusion 775
balance those things that should be in the realm of property and private right, and those
that should be in the public domain, free for all to use. This balance is the recurrent motif
of intellectual property policy. But how to strike that balance?
Again in each field, two tendencies manifested themselves. One sees strong rights
as necessary and vital incentives. It views attempts to limit or constrain those rights as
inherently problematic, a loss or “taking” from the property owner and a threat to
innovation and economy. If X level of protection gives us Y level of innovation, then 2X
will give us 2Y and so on. The norm is property. The best example of this was the
discussion of “The Internet Threat” in copyright policy and the idea that rights should vary
inversely with the cost of copying. Costless copying will require nearly perfect—digitally
enabled—control.
The other vision sees rights as “necessary evils”—Macaulay and Jefferson were
its most articulate proponents. The right is a limited monopoly that has to be created to
produce some social good: it should be held to the minimum scope, duration and extent
necessary to achieve that goal. The norm is freedom, and the goal of intellectual property
law is the crafting of limitations and exceptions to make sure the losses are as small as
possible and the gains as great. The fair use cases presented many examples of this theme.
How powerful is it? Well, if one looks at Congressional action—for example the repeated
retrospective extensions of copyright—one has to say that it faces an uphill struggle. Will
the fact that copyright law now directly affects citizens in a way it did not before change
that fact? We do not know.
There is much that the book did not cover—though we wish we had time to do so.
There has been very little here about the issues of distributive justice in intellectual
property. Our patent system will never produce drugs that treat the diseases of the global
poor. If one assesses value by ability and willingness to pay, as some but not all economic
analysis does, obesity and hair loss treatments are more valuable than malaria vaccines.
Most people find that result outrageous, correctly, but respond—wrongly in our view—
by blaming pharmaceutical companies for it. We are the ones who set the system up that
way. If we want drugs (and other inventions) that respond to the needs of the global poor,
then other systems of incentives will be needed.
There are such systems—ranging from “prize funds” to cost-plus contracts to
crowd-sourced innovation (though that last one will be of little help for the truly
enormous problems of pharmaceutical development). Meanwhile the Access to Knowledge
or A2K movement has stressed the role of liberal copyright policies in securing
access to educational and cultural materials. These are deep and important issues and we
invite you to read further on them. 1
But what of the future? In our final reading, we offer one last perspective on the
changes that the internet may yet wreak on our assumptions about incentives, sharing
and creativity.
1
See Knowledge Ecology International http://keionline.org/vectors (visited Aug 14, 2014);
Amy Kapczynski, The Access to Knowledge Mobilization and the New Politics of Intellectual
Property, 117 Yale Law Journal 804 (2008); Madhavi Sunder, From Goods to a Good Life:
Intellectual Property and Global Justice (2012).