erratic thoughts on IP in a digital world

This article might turn out to be somewhat surprising, coming from an Intellectual Property (IP) and Information Technology (IT) lawyer, that throughout his career has always represented the interest of assets’ owners.

Yet an issue has been hunting my mind over the years and this issue, unsurprisingly, has come about precisely at the crossroad, where IT meets IP. The question that occupies my thoughts is concerned with the impact of digital technologies on IP rights. The question I have in mind is somewhat ontological (apologies for the pompous expression but I cannot think of an apter one), because it has relatively little to do with the outer manifestations of such impact on the legislation. IP laws and the jurisprudence around them have indeed changed and will continue to change to respond to the radical transformation in the way IP assets are created, distributed, exploited and (mis)appropriated due to the widespread and commodified use of digital technologies.

With this article I wish to put out some very initial reflections, that are bound to be translated in a more ambitious work, and which shall take the form of a paper or some other lengthy writing. The work’s ambition is to construe on a theoretical analysis of the law, which means seeking the interface between the law and the realm of social sciences, such as economics and sociology. I will be seeking out new tenets of IP Rights in the digital era, if any, with in mind the astonishingly transformative capacity of the digital itself. The outcome of the work is not predetermined: I do not have a theory to be confirmed at the end of the journey.

The starting point is that I feel there might be something out of tune in the way the law appears to patch the numerous vulnerabilities in the traditional IP system laid bare by digital technologies. To simplify, the approach that the legislature at EU level has displayed is one of entrenchment, that is to say, a profuse effort has been put by legislators (in EU and beyond) to look for work-arounds, that would permit right holders to keep asserting their rights in the digital environment, by disregarding the existential challenges posed by digital technologies to IP Rights. What are these challenges? One of the main challenges resides in the ever clearer clash between the formal rules of intellectual properties and the informal norms that are felt by the community of users, grounded in the dissipation of the perceived value of IP assets, as a result of the rising of the culture of file sharing and open access that innerves digital technologies by design. On their end, IP laws are entirely built on a top-down approach, that has developed in parallel with the exponential growth of digital technologies, by taking a counterreformation approach: as the Catholic church reacted to the protestant movement by reasserting itself as the sole true sacellum of Christianity, so IP laws have focused on side-stepping the informal norms of the digital, while reaffirming a wholly proprietary approach and vicariously recreate the context of physical scarcity, that naturally assisted IP rights in the analogue world, by erecting new legal barriers, that however are not grounded in any thorough re-theorization of legal principles. Easy examples in this regard are the provisions concerning technology protection measures and digital rights management, in the infoSoc Directive of 2001, that have tilted to the benefit of right holders the balance between temporary rights exclusivity and free flow of information in the interest of all, or the abrupt expansion of the concept of communication to the public enshrined in the recent copyright in Digital Single Market Directive (Directive 2019/790), which appears to have been carved out solely out of the need to hold certain digital service providers directly accountable (those sharing content uploaded by users), while regulating in fine-grained details the conditions triggering responsibility.

Striking is ex se the legislative technique of very case-specific, almost nominative, norms, revealing the lack of systematic thinking in the realm of IP rights, where ideally technologically neutral principles should be preferred over transient solutions, often biased by the contingency of the prevailing economic interests of certain groups in the normative space where the laws are to apply. This is not to say that IP rights should be abolished. I am quite far from such frivolous thinking and quite to the contrary I believe IP Rights should survive the digital revolution. But how? Probably it is time to renovate the interpretative toolbox. The overabundance of information created in the digital ecosystem is something so disruptively new, that the odds are against the appropriateness of looking at this new reality with the old spectacles forged in the analogue era or, let alone, by continuously chasing the digital transformation to patch the holes in the system on the assumption that the traditional framework should not be questioned. For example, can we downplay the fact that IP rights indiscriminately break the route of access to a wealth of information humanity never had before in such volumes and quality and that, as a consequence, creativity may be enhanced to an unprecedented extent by the possibilities of cultural contamination and by the power of the technological tools that enable the reinvention of existing knowledge? How many new works of art are we losing due to the defensive, reactive and a-systematic approach embraced thus far by the legislator? Long way to go before I can come to a conclusion,  if ever, but wanted to share with you this late summer thoughts. Comments are most welcome.