A Governance Framework for Intellectual Property Rights
Chapter 4: Information commons
Part I underscored the exclusivity costs associated with the IPR system such as efficiency costs, administration costs, externality costs and distributional costs. There will be instances where benefits of propertisation may outweigh costs, and instances where this will not be the case, although it may be difficult to make this determination with absolute certainty. Here, a social net product analysis supported by empirical evidence becomes a vital project of information environmentalism. The inherent risk, particularly evident within IPR maximalist discourse, is that incentivisation arguments and purported benefits associated with the internalising of positive externalities trump the exclusivity costs of IPRs. To a large extent, the exclusivity costs inherent within the IPR system are acknowledged by the system itself as evidenced by the leaky nature of IPRs that flow from doctrines such as fair use and the requirement to disclose information about an invention as a quid pro quo for a patent right. The IPR system contains leaks and exceptions because it implicitly recognises the information environment relies upon access to and use of information so that more information can be created. To this extent, the IPR system is, like most property systems, a mixed system of private property and commons, although it is not often perceived in this manner. A central rationale as to why IPRs implicitly rely upon the information commons is because the latter contains its own in-built efficiency mechanisms.
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