Goodbye Property? – Preface

With this selection of different positions to the copyright the IFSE provides a rather uncommon publication. The demanded shortness makes detailed argumentative support for the given positions impossible from the start.

We thank all authors for the courage to accept our restrictions and to refrain from writing longer contributions. As the present volume shows, the resulting shortness makes it especially clear, in what different manners the subject “Intellectual property” can be tackled. The lack of justifications or their extreme shortness can also be read as an indication to how the human brain often works: decisions are made before reasons are reflected upon and the rational justifications are formed out of them. This shows that the quarrel about the copyright is often one about the underlying central values – and these values can been seen most clearly in the present short contributions.

Catherine Doldirina argues for facilitating the sharing of information. When it comes to designing the institution of “property” modern theories of public wealth and common property have to be taken into consideration and the principle of sharing can provide a teleological guideline for the design of a coherent system of property rights that is fit for meeting the challenges of the digital age. Reinher Karl emphasizes the rights of disposal that are attached to property, and calls the “goodbye to property” a goodbye to applicable law. However, Karl also thinks that restrictions for property rights are conceivable, but interventions in the rights of disposal can be justified rather with public wealth reasons, than restrictions in exploitation rights can. Martin Kretschmer and Anirban Mazumdar stress the complexity of different proprietary regulations and show that the reference to a unifying concept of proprietary is not likely to be very helpful. Kretschmer stresses that the special regulations which concern property should be justified by the scope of activities they promote or limit, and not by reference to a fictive uniform concept of property. Mazumdar enriches the debate with the illuminating example of the lawsuit between the news agencies „Internationally news service“ and “Associated Press” in which was established that news have the status of “quasi property” in order to keep incentives in the news industry intact. Christian Sprang explains the basic incentive effects that follow from legal protection for intellectual property and makes clear that an independent creative industry is crucially dependent on the protection of intellectual property. When content is distributed without permission it is irrelevant for the creative whether one calls this theft or acquisition by false pretenses. For Sprang, a goodbye to protecting intellectual property is imaginable only if “similarly powerful alternatives for creative people, user and society can be found, which are not apparent yet”. Finally, Karsten Wenzlaff argues for a creeping dissolution of the relevance of property, because the sharing of information in the digital world is more important for our identity than the possession of acquired goods: The barriers of the availability in the digital life are completely different from the ones in the physical world. Here personal rights, copyrights, data security regulations and social norms determine what we can do with digital goods. Wenzlaff concludes that the value of property for forging identity does not depend on the intrinsic qualities of goods, but on the qualities ascribed to it.

Now, are we justified in talking about a “goodbye to property?” The only certain thing seems to be that the technical developments and our everyday practice put many aspects of the so-called “intellectual property” into question. With the ongoing shift of services and contents into the web the creeping dissolution of traditional property rights and their firm borders will likely increase further. The classical categories of inclusion and exclusion are invalid in the digital world where goods can be multiplicated indefinitely and lossless. The creation of artificial borders, as they were set up, for example, by DRM systems, has turned out to be a heavy mistake in the music-industry, because they always mean restrictions for the customer. However, a goodbye to property is incompatible with the principles of a free and also a social market economy. Hence, the question concerning property is, in the end, one of the basic functional principles of our society. With the concept of a cultural flatrate a goodbye to property in the digital world is propagated for some time now: The usage and copying of all digital media would then be compensated by the payment of a flatrate amount. Opponents speak of communism, advocates see the availability of digital goods without barriers as a big step towards more freedom in the digital world. At the moment, there is only one thing for sure: the juridical abolition of exploitation rights and rights of disposal is not at short-term prospect. Whether the present transfer of the traditional concept of property into the digital world is feasible in the long run, is not for sure when one takes the ongoing dissolution processes into consideration.