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March 7, 2008
Knowledge Ecology Studies
Late last year, a new online journal appeared - Knowledge Ecology Studies:
KE Studies is an online publication that focuses on the creation, dissemination and access to knowledge goods. It is a multidisciplinary journal that draws on a number of specialties: sciences, technologies, public policies, the laws of intellectual property, business, free speech and privacy, telecommunications and other related knowledge disciplines.
Issue #1 has an article Five Questions for James Boyle. In addition to the general questions about "knowledge ecology" there is this exchange:
We normally think of intellectual property rights as being synonymous with the right to exclude -- to forbid publication or copying of books, to deny a license to an invention, to enjoin someone from using trademarks commercially. Yet there are other types of intellectual property rights; those that come with a right to payment, but not a right to exclude, such as compulsory licenses or so-called "liability rules." Do you think these have a place in the future of intellectual property?
Absolutely. Liability rules are found throughout the intellectual property system. Whether it is someone making a “cover version” of a song on payment of the statutory fee or the “march in” provisions of the Bayh-Dole Technology Transfer Act, the idea is to separate the right to compensation from the right to forbid use. My colleague Jerome Reichman has spent much of his brilliant career writing about the ways in which these liability rules can minimize some of the dangers of legalized monopoly while still making sure to compensate innovators and distributors. The case for liability rules is particularly compelling in cases of humanitarian emergency -- such as access to essential medicines -- and in cases of technological monopoly that is accompanied by strong “network effects” -- control over a dominant operating system, say. There is also a powerful case for it in the world of mashups and remixed art. Some have suggested that we should have an intermediate position between a finding of fair use for a parody or satire on the one hand, and the ability of a copyright holder to gain an injunction over derivative works on the other. With those alternatives, a "remixer" either has total freedom or none at all. Is there a place for an intermediate category, in which the copyright owner cannot forbid the use but is entitled to some share of the proceeds for any commercial exploitation? The difficulty in all of these cases, of course, is the issue of the appropriate level of compensation. How do we set that level without markets to guide us? How does one avoid the dangers of state corruption or capture? These concerns are real. Still I think that if one actually looks at the number of places in which liability rules already work, and work well, it is reasonable to conclude that they could be used more widely.
Interesting - and something I hope Boyle and others will pursue.
Posted by Ken Jarboe at March 7, 2008 8:18 AM
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