56 Fla. L. Rev. 135 (2004) | | | |

INTRODUCTION :: Can you own information? If so, what is the theoretical justification for ownership, and precisely what rights does ownership confer? What is the impact of ownership of information and ideas on society and on the public domain? These questions have increasingly absorbed the attention of intellectual property commentators the world over in the global inform-ation age, largely as a result of the relatively unfettered rise of information property rights in recent years.

This trend has come about partly as a result of legislation supporting these rights, and partly due to the ability of information product develop-ers to utilize contractual and technological protection measures to protect their investments to an extent never before possible. The upsurge in powerful private rights in information products creates the potential for unfair monopolies in many markets, and more importantly, can reduce the availability of information and ideas for the use of others. This reduction can have a detrimental effect on those who do not have the financial resources to pay for access to information that arguably should be available to them at minimal or no charge.

This Article focuses on the position of some of those “others” who may have legitimate interests in information, either because of a need to access and use that information, or because of an interest in preventing the use of certain information by an information property holder. These interests may be grounded in issues of personal privacy, moral rights of authorship, cultural rights, or rights relating to scientific, educational, or technologi-cal purposes. This list is not meant to be exhaustive.

In order to examine and re-work the position of these “others” vis-a-vis information property owners, it is necessary to briefly evaluate the limitations of the term “information property ownership.” I must also emphasize that I will not be arguing in this Article whether information property ownership is a good or a bad development per se, notably with respect to the protection of the public domain of information and ideas more generally. Rather, my concern is with the position of those holding legitimate competing interests in specific information who may currently be unable to effectively enforce their interests against information property holders. The public domain question is considered in other literature and is discussed briefly towards the end of this Article.

Obviously, the idea of balancing information property rights against the preservation of the public domain of information and ideas is related to balancing information property rights against competing private interests in information. However, the public domain question is arguably more closely related to the debate about the initial creation of information property rights in terms of their nature and scope; the concern is largely with the detrimental effect on the public domain of people appropriating too much information from the “intellectual commons” for restrictive private uses.

The related question of balancing information property rights against competing private interests in relevant information assumes that we are already one step beyond the creation of the information property rights. That is, it assumes the existence of information property. The next question, then, is how to balance those property interests against the interests of others who may have competing interests in relevant inform-ation. The competing interests may be in the nature of a need to access and use the propertized information, or in the nature of a desire to limit the owner’s use of relevant information on the basis of moral rights of authorship, personal privacy concerns, or cultural concerns. While this list is not exhaustive, these concerns have been prominent in information property literature in recent years.

To date, we have accepted a certain level of information property, and many would argue that we have not been particularly successful in limiting and monitoring the exercise of those rights vis-a-vis competing interests of others in propertized information. In this Article, I suggest a new framework for redressing this balance by imposing legal duties on information property holders as an incident of their property ownership to protect certain competing private interests in information. In so doing, I draw on traditional property theories, especially the “bundle of rights” idea of property with which most of us are familiar. I argue that property theory can, in fact, help us to achieve a relevant balance of competing interests in information, and that if we are going to use property terminol-ogy, we should learn some of the lessons from traditional property theory about appropriate checks and balances on property ownership.

To briefly clarify the meaning and position of terms like “information property” and “intellectual property,” it is important to acknowledge that many of us tend to use these terms colloquially to describe certain private rights in information that connote some degree of control over relevant information. However, information cannot be property in the same sense that land and other tangible items can be property. This limitation follows because information is a “public good;” that is, “the cost of providing the good does not increase with consumption, and . . . it is generally infeasible to exclude others from consuming the good.”

The grant of property rights in information is therefore not necessary to prevent overuse of valuable resources, which is often the justification for private property interests in land and other tangible goods. There may be other reasons for granting a form of private property right in information, but it is important to acknowledge that the justification for the grant, and therefore the nature of the right(s) thereby granted, will differ significantly from tangible property rights in the “real world.”

One of the more obvious reasons we talk about “property” in inform-ation is the lack of a better word. Market players tend to use this terminol-ogy because they are familiar with it. It seems the most obvious term to describe a valuable commercial good with which people seek to transact in a market. Thus, even though information goods are not of the same nature as tangible goods, the property terminology will likely stick. In fact, some intellectual property statutes expressly use the term “property” to describe rights granted thereby. Other statutes dealing with private rights in information impliedly connote property by using associated terminology such as “misappropriation,” “ownership,” and “transferability.”

“Property” terminology need not be avoided, provided that we are clear about what is meant when the term is used in the context of information. There may, in fact, be some distinct advantages in utilizing the term. One obvious advantage is the familiarity of the concept in describing a transferable good with market value. Another advantage might come from the lessons that can be learned from traditional property law regarding appropriate balances of competing interests in property.

For the purposes of this discussion, and to emphasize some of the benefits of the property terminology in the context of information without necessarily connoting rights that are equivalent to traditional property rights, I have chosen to distinguish the two concepts by capitalizing the “P” in the term “Property” when referring to traditional real Property law and theory, while retaining a lower case “p” for “information property.” Thus, throughout the remainder of this Article, where I refer to traditional theories of Property I will describe them as “traditional Property theory” and “real Property.” Where I am referring to our colloquial use of the term in the context of rights in valuable information, I will utilize the term “information property.”

Although this may seem somewhat strained, there is method to the madness. The main reason for this use of terminology is to emphasize that, when referring to “information property,” I am drawing to some extent on notions of traditional Property law and theory, but that I am not suggesting that information should be Property in the traditional “capital P” sense. I am instead arguing that where we rely on parallels and analogies from Property theory to describe aspects of information ownership, as we consistently do, we should be aware of both the similarities and the differences between the two concepts: hence, the use of the similar, but distinct, labels, “Property” and “property.”

Information property rights, as the term is used here, can take many forms. At its most basic, the term relates to information that has commer-cial value, in which private market players want to transact. Much of standard intellectual property law relates to what might be termed “information property rights.” Copyright and patent law, at least in the global information age, create property rights in aspects of valuable information products like computer software and Internet business methods. Trade secret law also protects valuable commercial “know how,” and trade secrets are generally described as “property” rights despite their somewhat questionable proprietary status.

There is also a significant amount of valuable information that is not necessarily protected by any specific intellectual property right. Non-original data- bases are an obvious example, at least in the United States. Databases are not protected by copyright law in the United States unless they meet a somewhat vague originality standard for copyright protection in relation to the selection or arrangement of their contents. Nevertheless this type of information is often propertized, again in the small “p” sense of the word, through the use of restrictive contractual licenses and technological protection measures.

Increasingly, propertization of information, even in the small “p” sense of the word, leads to obvious concerns about appropriately balancing competing interests in valuable information. Many scholars have commented on the need for various sectors of the community (notably educators, scientists, and other researchers) to access and use certain pro-pertized information. Scholars have also commented on cultural equities and moral rights inherent in certain information, ideas, and narratives. Commentators have criticized the domination by the western world and western legal systems of property rights in aspects of other cultures, such as aboriginal art and music, and words identifying culturally significant names and geographical places. The global community has also become increasingly concerned about the rights of authors, generally, with respect to their works, particularly their rights to be acknowledged as the author of a work (the right of attribution), and to not have a work subject to derogatory treatment (the right of integrity).

Courts and legislatures have played a significant role in over-pro-pertizing information to the detriment of the competing interests identified above. Examples of legislative involvement in this trend include: (a) the creation of powerful and exclusive property rights in databases throughout the European Union (E.U.) under the E.U. Database Directive; (b) the enactment of the Digital Millennium Copyright Act (DMCA) in the United States which strengthens claims to digital copyright by preventing trafficking in, and use of, devices which might circumvent digital rights management technology; and, (c) the recent extension to the copyright protection term in the United States. Additionally, both courts and legislatures have supported attempts at privatizing copyright law through restrictive contractual provisions.

These concerns are not particularly new. Indeed, they are only some of the more recent examples of a phenomenon that began in the latter part of the twentieth century when scholars started to debate the extent to which various computer software-related products were being over-propertized by the legal system. These earlier examples related to things like the validity of patents for computer software and Internet business method patents, and the extent to which computer software might be protected under copyright law as a literary work.

These issues are not limited to the United States. In the European Union, similar concerns about the over-propertization of information products and the ineffectiveness of fair use doctrines to provide adequate levels of access and use of information to those who need it have arisen in recent years, particularly in the wake of the E.U. Database Directive and the E.U. Copyright Directive.

Commentators are worried that large amounts of relatively mundane information could be locked away from society and may only be accessible through payment of prohibitive fees. These fears are exacerbated by the fact that the fair use provisions in the E.U. Database Directive are somewhat unclear, and that E.U. Member States have significant discretion about the extent to which they adopt fair use provisions in domestic legislation that implements the Directive. Another worrying development in the history of the E.U. Database Directive has been the removal of the compulsory licensing provision for sole source information providers that had been included in an earlier draft of the Directive. Such a provision would have given some comfort to those concerned about the creation of unfair monopolies in valuable information products.

The arguments against the over-propertization of information in the digital age are compelling. They are based on very real concerns about the creation of unfair monopolies in information, and the concurrent lack of support for competing interests in information. Clearly, a significant part of this concern relates to whether we see valuable information as “property” or “Property.” The former term largely connotes a useful transactional tool that can assist in the development of new markets for the benefit of society as a whole, while the latter refers to the conceptualization of an asset as a rivalrous private good that can be commodified to the exclusion of most others. One of the underlying theoretical justifications for this commodification of Property is to prevent a “tragedy of the commons” in relation to rivalrous goods.

Our thoughts about Property necessarily influence our thoughts about information property; that is, we would hardly have adopted the term “property” in the information context if it was not in some way informed by our ideas about traditional Property theory. However, we need to be much more careful than we have been in the past about delineating which aspects of Property we want to draw into our conception of information property. I argue that in some ways we have borrowed too much from traditional notions of Property when conceptualizing information property, while in other ways we have borrowed too little.

In the “too much” category is the idea that Property rights may well entitle the owner to a market monopoly (as is often the case with rivalrous goods such as realty). Ownership of such goods can lead to the ability to charge high prices for access and use. This may well be the case with many rivalrous goods, like land, but it should not work this way with respect to non-rivalrous goods like information. This is because Property rights in relation to physically scarce resources discourages waste in favor of trade, while the same reasoning will not necessarily apply to a public good like information.

In the “too little” category I would argue that we have failed to notice, when borrowing from traditional Property theory in the information property context, that traditional Property rights entail significant concurrent obligations or responsibilities imposed on the proprietary owner as an incident of their Property ownership. Historically, Property rights have never been absolute. They have always involved limitations, often in the form of legal duties owed to others. There is certainly no reason for a trend of absolute control to start now in relation to information property rights.

Assuming the continued use of the “information property” label in the modern world, is it possible that we might learn something about legal duties that could be imposed on information property holders from examining some of the legal duties imposed on traditional Property holders? Again, this is not to equate information property with traditional Property, but rather to evaluate whether there are ways in which the traditional Property concept can help inform us in developing a better balance of interests in information property. Thus, we cannot simply identify duties attaching to traditional Property ownership and apply them mutatis mutandis to information property. However, we can apply the general concept of accompanying the grant of a property right in information with the grant of some commensurate legal duties that will temper the otherwise potentially unfettered exercise of the relevant rights.

We have already seen some examples of obligations attaching to ownership of intellectual property. Patent law, for example, requires the public disclosure of an invention in return for the grant of patent protection. Additionally, the patentee is required to release the invention into the public domain after the patent term has expired so that society as a whole may benefit.

However, many would argue that the type and amount of obligations currently imposed on intellectual property holders are insufficient to achieve an appropriate balance of interests in information. In particular, the obligations currently imposed on intellectual property holders, generally, relate to the protection and enhancement of the public domain of information and ideas as a whole rather than to protecting specific competing private interests in valuable information. Thus, the obligations currently imposed on intellectual property owners are very important in the sense of an overall public-interest balance of information, but may do little to protect specific individuals with competing interests in relevant intellectual property, particularly those with limited means to assert or enforce their interests.

The idea of balancing competing interests in information is not new, but the framework presented in this Article for doing so provides a new way of conceptualizing relevant issues that might ultimately benefit society in two ways. First, it will create more powerful legal rights in those who seek to assert competing interests against an information property holder based on legal duties owed by the property holder to those competing interest holders. Second, it will provide a unified framework for balancing competing interests in information under a simple, basic doctrine, regardless of the specific nature of the information product in question. Such a framework can apply broadly across the matrix of laws relating to information property law both within the United States, and ultimately, globally. An important aspect of this framework is the way in which it addresses the question of who should bear the legal and financial burdens of balancing information property rights against other competing interests in relevant information.

I argue that those burdens should be predominantly borne by the right holders themselves as legal duties attached to the privilege of property ownership. I further argue that the state has a responsibility to monitor and control the performance of such duties, particularly where the state itself has supported the creation and commercial exploitation of the relevant property rights.

In making these suggestions, I am sympathetic to the notion that we must be careful about imposing additional obligations on property owners in respect to competing interests in information. The reason for the existence of laws supporting the creation of many information property rights is to provide incentives to innovate. The grant of an information property right is typically a reward for innovation.

However, in the absence of definitive empirical evidence, it would appear from anecdotal commentary that the balance of competing rights in information currently tips too heavily in favor of information property holders, often to the detriment of those with competing interests in relevant information. I am assuming this to be the case. In any event, the framework I am suggesting for balancing competing interests in information should provide the flexibility to adapt to changing situations in terms of promoting innovation versus preventing monopolistic practices to the detriment of others with competing interests in relevant information.

As noted above, my suggested framework does not specifically address the public domain question, although this is an important issue that is currently being examined in the context of the initial grant and scope of information property rights. I see the public domain question as distinct from, but related to, the issue of balancing competing individual interests in proprietary information as the following discussion demonstrates.

Part II explains why current approaches to balancing information property rights against competing interests in information have failed to strike an effective balance to date. Part III describes a methodology for balancing private rights against legal duties inherent in information ownership, drawing on theories of traditional Property ownership as a preferable framework for balancing competing interests in information. Part IV examines the appropriate role for governments in monitoring and enforcing any new legal duties imposed on information property owners. Part V sets out some conclusions on these issues and summarizes the new framework proposed for information property rights and responsibilities.