Law in the Internet Society

The Pleasure of Ownership – A Self-reflection

-- By SharanjitSandhu - 08 Nov 2017


I once believed that IP enforcement was necessary to effectively “protect” artists’ work. My newfound perspective results in the opinion that these enforcement actions are not necessarily protecting artists. Rather, they are protecting a dying business.

Intellectual property enforcement is not necessary to make money. But in some industries, such as the film industry, enforcing such rights is an effective way to control distribution, which allows one to make money.

The Problem

Intellectual property laws allow us to claim things. The presumption being, if we do not claim something as our property, then someone else will claim it as theirs and make money. This idea of property stands for exclusion.

The fundamental problem arises when we think we should live in a world where ideas should be shared in order to promote learning. If we want to allow every person to be able to learn whatever they want and to do it at whatever extent they desire, then the power to exclude someone from learning something is counterproductive.

However, if your priority for creating certain kinds of content is not to share or educate, but to make money, then we may want the power to exclude other people from taking credit for our creative content.

But, do making money and sharing ideas need to be mutually exclusive? Not necessarily.

Possible Solutions & Examples

Creative Commons (CC) licenses are innovative legal tools that allow creators the ability to share their material to those who want to reuse it, edit it, build upon it, remix it, and/or learn from it. Because CC licenses are only applied to creative material in which a copyright exists, it uses current copyright law to do everything it was not designed to do. Moreover, the freedom to personalize CC licenses to fit each creator’s needs (e.g. NonCommercial? (nc) will prohibit commercial uses) has revolutionized various business models.

The photographer’s business has changed drastically due to such licenses. Photographers are able to reach wider audiences by utilizing modes of distribution such as Flickr, Picassa, and Photobucket. An unknown photographer can reach thousands of people by publishing her photographs for free. However, she can still make money by selling those photographs at various levels of exclusivity (e.g. allowing one to modify the work commercially) once more people know of her work.

CC licenses have also been used by musicians, academics, filmmakers, and other creatives who find that by sharing their content for free results in profits in the form of official merchandise, concert tickets, and adequate rights to commercially profit off of the creator’s art.

These examples and the success of CC licenses lend support to the idea that two creative cultures – (1) a commercial culture and (2) a sharing culture can exist simultaneously. There are places for the market and places where the market should not exist.


With such success of CC licenses and the ability to allow fans to interact with art, why hasn’t Hollywood adapted to this mode of licensing? Why does Hollywood hire entire departments of lawyers dedicated to IP enforcement and content protection?

One reason is that they need to sell movie tickets. Distribution deals are a huge part of monetizing off of films. Clear chains of ownership rights lead to more successful distribution deals as distributors see these rights as a necessity to do effective business in the face of unauthorized uses. Thus, movie studios become lawsuit companies who take down clips of unauthorized filmed content or shut down events where films are streamed without a license.

However, distribution of films and television content is changing with online distribution through Netflix and Amazon. These streaming services are not only uninhibited by movie theatre distribution deals, but they can also predict what their users want to watch. Their reason for not publishing free content is still present, but it is different. Their need to exclude others from unauthorized sharing or use of their original content is related to their business model - they make money from users’ subscription fees.

Their rationale is: if users can get the same content for free, why will they pay for it?

However, with the dawn of online distribution, the adoption of CC licenses or some mode of open and free content would be easily possible if streaming services found that such license models actually helped their subscription numbers. An example of this would be if Netflix introduced original content that allowed any person to download and remix it without commercializing it and such content prompted people to actually buy Netflix subscriptions to consume similar content that is not free. Although this is not completely open and free content because we are talking about selective content that is free, it is a starting point to reshaping the norm.


We have seen how IP enforcement is not necessary to make money. But some industries still enforce IP rights because it is the only way to survive. However, because such industries are being disrupted, it is possible to see the incorporation of more CC licenses and similar modes of licensing to promote a different culture of consumption that is more open.

Amidst such success of CC licenses, there are obvious short comings to such a tool. For one, these licenses serve as a “patch” to the current copyright system, as they only apply to “works whose creators make a conscious decision to affirmatively license the right for the public to exercise exclusive rights that the law automatically grants to them.” Therefore, a culture shift in the way large content companies do business is required to effectively change a system. Arguments made by those who believe an overhaul of copyright laws are the only way to truly foster an open culture do have a valid point. However, I think such a change, while beneficial, will be seen as drastic unless more industries and business are able to show that “free” does not mean zero profits.

This is a quite successful revision along the lines I proposed. By looking closely at the alternatives the first draft was not fully comfortable imagining, you have pushed your own thinking into new corners. That's learning for you, and for your readers.

Asking why people will pay anything when they could pay nothing is a good question, and should be taken seriously. Outside the realm of coercive distribution, there is much distribution. Will people pay Spielberg in advance to make films? Yes. Can he make his films on what people will voluntarily put up to have him make them? Almost certainly. What about the not-yet Spielbergs? Artists have always sought the work that would sustain them while seeking to do the work they sustain themselves to do. Not unlike lawyers, at their best, anyway. If we can perceive the extent to which the post-Edisonian businesses weren't actually made to solve the problems of artists, no matter what the form of their creation, we can see why artists' choices can be empowered and relied upon to explore the spaces in which creation can be made sustainable, without needing another change in the system of coercive distribution.


Webs Webs

r4 - 01 Apr 2018 - 14:52:08 - EbenMoglen
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