Creative Content Needs Functioning Markets
So much is going on in the world of content and intellectual property that it is hard to keep up – the release of the 2010 Joint Strategic Plan on Intellectual Property Enforcement, the Viacom/YouTube and Flyonthewall cases, the Immigration & Customs Enforcement’s “In Our Sites” offensive against movie piracy, the negotiations over the Anti-Counterfeiting Trade Agreement (ACTA), the recent USPTO-NTIA Symposium on Copyright Policy, Creativity & Innovation in the Internet Economy; the Comcast/NBC merger.
A useful organizing theme, I submit, was in an email sent to me recently by a colleague, commenting on the judgment by the artist once again known as Prince that the Internet is over: “I think Prince is obviously wrong, too, but he has a good point about the market failure of the Internet – i.e. the lack of a functioning market for digital content.”
This is indeed the essence of the problem. As is so often the case with market arrangements, for a couple of centuries we have been able to rely on markets to produce and distribute creative products. These markets have never worked perfectly – markets never do – but they worked well enough to do the job. Sometimes technological development would require some tweaking of the legal rules, but never before have we had such total technological disruption of functioning markets, with a corresponding disruption of legal rules that were designed to fit the old technologies.
Whatever illusions the academic and cultural left may have about a world in which creativity is all open and free and produced out of sheer exuberance, these are indeed illusions. There is no substitute for the hard work of providing incentives and coordinating mechanisms that is performed by markets. So the primary task of everyone involved in the intellectual property system should be to cobble together new combinations of technological measures, new legal rules, and enforcement mechanisms to rebuild the markets for creativity.
Some of the participants are indeed trying to put together new systems. But, as always in human affairs, there can also be profit in a crackup, and some others are determined to prevent the attainment of solutions because until new rules and practices come into being they can profit from the fact that a lot of very valuable intellectual property is there for the grabbing.