Blending public good with private interest

Article written by Prof S. Zafar Nasir

There is no doubt that Intellectual Property Rights laws have had notable success to stem the tide of piracy in majority of countries but the losses from this menace have mounted.

A study conducted by Business Software Alliance (BSA) and International Data Corporation (IDC) has revealed that losses from piracy rose by $8 billion to nearly $48 billion worldwide.

According to the IDC report, for every $2 spent in legitimate software purchase, $1 worth of software was obtained illegally in 2007. Out of the 108 countries studied in the report, the piracy rate dropped in 77 countries from 2006 to 2007 and increased in eight countries only.

There are important legitimate concerns which require a new insight into the overall dynamics of implementation of intellectual property (IP) laws to make them more effective and compatible with information age. There seems to be a sense of mismatch between IP laws and emerging digital realities.

The mismatch is quite evident if every access to digital text, picture and movie is to be perceived as making copies. The proposal to protect the data in databases, new rights to control trademarks embodied in domain names and virtual trespasses could also be viewed as classic examples of misfits with traditional legal principles.

By all account, we have a strong case for reviewing the theme of IP laws by applying limiting principle in a fair fashion to promote innovation and consumer welfare in the long run and balance the public good and private interest. What we need to achieve is a balance between public interest, traditional legal principles and the emerging digital realities.

The set of technologies making up the information systems has arrived on the world stage in which existing laws and practices governing intellectual property depend largely on conflicting elements.

The advances in information and communication technologies both in terms of tools to support creation of knowledge and reproduction of knowledge have changed the way people live, introducing new concepts like ubiquitous computing and ambient intelligence, consequently leading to current challenges in enforcement of intellectual property rights.

The digital information, computer networks and the webs, generally referred to as trio of technological development, have now become the catalyst in promoting changes in society. The definition of copying has undergone a sea change due to the fact that any digital access eventually leads to making ephemeral copies.

Computer control of copying means putting curbs on access as well a matter of concern to all digital users. In fact the distinction between access and reproduction has blurred at max in the digital age. The other consequence of the diffusion of technology pertains to relative ease with which an individual can act in private detrimental to intellectual property rights, which would have required substantial investment in the past, can now be done at no cost.

The strong emergence of information technology in our daily life requires regulating such behaviour thereby reflecting the need for having a shift in the focus of intellectual property law.

In the current scenario, licensing has been used as the dominant mode of transaction covering the trade of software products. There are subtle differences between selling a work and licensing it. Copyright law explicitly anticipates the sale of software products as the transfer of ownership while licensing by contract is considered as an agreement providing for limited transfer of right to use them.

While licence has been worked out to preserve fair use and other public access feature, there is no regulated mechanism for public access embodied in copyright law. The key issue is determining how to promote access without giving up control.

A number of solutions have been implemented in the technical and business dimension ranging from encryption encoding of information for right management, the need for a fundamental change in approach in the enforcement and perspective vis-Ã -vis, intellectual property law has become a reality.

It is time to make a new beginning when the focus should shift from user of work to the value of the work and the common means of achieving this goal by providing incentive to authors. This approach is somewhat broader in scope and compatible with the concept of fair use and does not, in any way, conflict with traditional exclusive rights in copyright.

The transformation from economy of stuff to the economy of information must be built on a subtle change in perspective of supporting the socio-political settlement. The combination of factors especially our technological shift towards digitally networked communications have altered the parameters around which the settlement of piracy issues have thrived so far.

Therefore a case for the establishment of institutional framework, accompanying digital realities of today, has become the need of all stakeholders. Copyright law, broadcast law, and e-commerce law must be modelled to enrich our freedom and enhance justice in line with digital realities and socio-economic compulsions. The purpose is to advance the goals of intellectual property by promoting dissemination of knowledge in a cost-effective manner.

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