Easily one of the most interesting books on law that I have read, Code 2.0, essentially, discusses regulation in the backdrop of advancing technologies. While the book also deals with regulation of free speech and privacy concerns, I will restrict myself to IP.
Please note that this discussion is not only relevant to “hipsters” interested in so-called “TechLaw”, but also to those concerned about the IP ecosystem and regulation in general.
Also note that almost the entirety of the following discussion (examples and analysis) emanates from the book itself and there is little contribution of my own. So, in case you have read the book already, there is no point in going through the ensuing write-up.
Prior to dealing with IP regulation, we need to first understand Lessig’s general analysis of regulation. In other words, how does regulation work according to Lessig?
For our purposes, regulation is nothing but exertion of influence. According to Lessig, regulation can be influenced through four key modalities: Law, Norms, the Market and Technology.
Let us see how each of these regulate or influence our lives.
For instance, if the government wished to reduce consumption of porn, it could:
- Penalise consumption through laws (Law) or/and;
- Advertise regarding the immorality of consumption (Norm Creation) or/and;
- Tax production to make consumption more expensive (Market) or/and;
- Block access to pornographic websites. (Technology)
The best regulatory scheme would be a particular balance of the above modalities (methods).
If you think closely, almost all aspects of your life are regulated by these four modalities.
In order to help you form a more tangible understanding of the effect of said modalities, consider a hypothetical situation wherein you wish to wipe me off the face of the earth this very instant. Some of the factors holding you back are likely to be:
- The Indian Penal Code. (Law)
- Societal beliefs about the unethicality of exterminating a life. (Norms)
- Internet’s limitation as a tool for remote elimination. (Technology)
- Inability to purchase ICB Missiles. (Market)
Please note that I am giving you a very basic outline of Lessig’s explanation of regulation. Just about enough to understand his analysis of IP regulation. His book is far more interesting, replete with a plethora of examples, intriguing hypotheticals and the like.
Now that we have gotten a fair understanding of the four modalities of regulation (control), we can move on to Lessig’s analysis of IP regulation. While the chapter does discuss quite a few fascinating analytical threads, I shall restrict the discussion to the central thesis.
Let us look at Lessig’s analysis of the fair use doctrine in copyright law.
For the uninitiated, fair use (essentially) allows, subject to certain pre-conditions, use of copyrighted material that would otherwise constitute copyright infringement. Whether one can legally use material under the doctrine is dependent on the intention of the user. For instance, if the user wishes to use the material for writing a review, he is legally allowed to do so.
Note that the fair use doctrine is one of the limitations set on copyright protection. These limitations are an attempt to strike a balance between public’s access to information and the incentivization of authors. The end aim is to ensure a balance that furthers production of creative works.
Up until certain technological advancements (“trusted systems”), authors did not have the requisite technical tools to efficiently prevent against any kind of use (fair or otherwise). But now, with certain advancements, authors can police usage on the internet. They could allow use under the doctrine, or even the disallow it, because they have the power of the technology.
“Whether she grants this right depends on whether it profits her”
To sum up, Lessig argues that advancements in technology have allowed authors of creative works to exercise a degree of control over their works that was hitherto unprecedented. As a consequence, the regulatory balance struck by earlier laws, norms, technology and the market has been disturbed. Therefore, he argues that the government needs to change the laws to bring back the balance between the public’s ability to access information and protection of copyrighted material, thereby ensuring a productive IP ecosystem.
Image from here.