Ideological divide in intellectual property regulation in the way of sustainable creativity and innovation

Dysfunctional nature of the ideological divides has been vividly illustrated by the recent government crisis in the US. Similar crises have been quietly unfolding the intellectual property law for more than a decade. Radicalization and ideological entrenchment are preventing progress in intellectual property law and in general knowledge economy. Particularly it has been an obstacle for developing the legitimate electronic content business and the new generation of media.
Two examples of ideological divide in intellectual property regulation come to mind.

One is the creeping expansion of intellectual property rights. There is no doubt that digital technology has contributed to the infringements of the digital intellectual property, however it is equally clear that expansion of intellectual property rights (through validity terms, DRM applications, copyright levies and constraints on the exceptions (non-commercial use)), as well as indiscriminate enforcement against end users is an inappropriate response.

Reasons of digital piracy are far more complex than insufficiently strong intellectual property regulation and poor enforcement. One reason, which the ideologically fixated fail to recognize, is the lack of legitimate sources of digital content. Moreover, the emergence of such legitimate sources is obstructed by overprotection of intellectual property. Another reason is the technological unbundling of the digital content and difficulties in market manipulation (such as the DVD zoning). Instead of decreasing piracy, the hard lobbied push for the expansion of intellectual property rights has provoked consumer radicalization and anti-intellectual property movements, of which the Pirate Party is the most evident manifestation. The moderate reform proposals and regulation accommodative to the new digital business models is not heard due to the vociferous wave of radicalism on both sides.

The ideological entrenchment has affected intellectual property research and academic community, which was unable to resist to the resources and “fringe benefits” offered by the right-holder and collecting society establishment. There is little funded research in the center, that is – in between the right-holder and social/user interests, since the establishment is allergic to any criticism of the existing intellectual property systems, while the anti-IP ideologies are inherently unacceptable to all serious intellectual property scholars.

Another bastion of ideological entrenchment is the collecting societies, which increasingly antagonize artists, users and society. With few exceptions collecting societies have become the self-serving inefficient and non-transparent intermediary between the user and the artist. Two last decades have been marked by the technological empowerment of creativity and the individual artist, as well as technological disintermediation of the artists and users. These developments were received as the threat to the very existence of the collecting societies. Instead of trying to accommodate, the collecting societies have been fiercely resisting individual licensing, full transparency and efficiency requirements, as well as any attempts to facilitate competition in the content markets, which are currently monopolized by the collecting societies. At the same time the collecting societies sought all possible ways to expand their royalty base and tariffs, levying everything from paper to personal computers, irrespective of their actual use, which may be completely unrelated to copying of copyrighted works.

In the EU the collecting societies and ever expanding levy systems have become unsustainable entitlement and welfare infrastructures, rewarding the privileged few, subsidizing the unviable but politically correct, and depriving the most commercially successful. Ever increasing levies are driving consumers to the grey and black markets for media and devices, while licensing inefficiencies obstruct legitimate digital sources. Most attempts to introduce even moderate reforms to the collecting society system have succumbed to the smear campaigns of the establishment, and hence did not receive the proper attention of the policy makers.

Unfortunately, the ideological lobbying rather that reason drives the intellectual property legislation. Reasonable compromise tends to be lost at the peril of the much needed sustainability of the creative and innovative processes.

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