Defending Innovation: Intellectual Property in the 21st Century
Fundamental Questions
One of Wendy Jane Gordon's interests is the way technology has complicated the law's approach to creativity. “Copyright has always prohibited much 'copying' of expression,” she says, “but it has never purported to restrain people from glancing through texts or reading their favorite books over and over, whether for entertainment or learning or as part of their making new works.”
But now that the Internet has placed a machine between our eyes and the texts we read, the potential impact of the statute has changed, even though the statutory language has not. “Some courts see browsing the Internet as involving 'copying,'” explains Gordon, a law professor and Paul J. Liacos Scholar in Law. “Back in the 1990s, prescient commentators like Jessica Litman and Richard Stallman feared copyright owners would assert an exclusive right over our reading, and the law may indeed be heading in that unfortunate direction.”
She notes that many of the inadvertent legal changes wrought by technology add new twists to an old problem—the question of how broadly rights should be crafted, given that every grant of rights to one person will simultaneously limit the liberties of other people. “Fundamental issues will recur over and over again,” she says. “We must continually address the limits of and justification for the whole system.”
Gordon also thinks that the field has been and continues to be so exciting because of the commingling of utilitarian and economic perspectives with moral arguments, such as the natural-law thinking of John Locke. A person's right to his or her creation, according to Locke's theory of property, is conditional on that person not depriving others of “enough, and as good,” thus framing the law's compulsion in moral terms. Copyright, then, is not just about protecting ownership of individual “authors' rights,” but ultimately also about encouraging free thought and the interchange of ideas. Gordon locates the real-world stakes of intellectual property in economics, moral philosophy, and the free speech debate.
Her work has placed her, in the words of one online commentator, “at ground zero in the IP wars.” Gordon examines the many ways in which copyright affects the connections between the individual and the community. “Often markets can serve the interests of both copyright owners and users,” she says. “In such instances, a market in the copyrighted work can simultaneously further the well-being of both the author and the audience, fostering both incentives and dissemination.” But sometimes a market doesn't exist or is flawed, or an alternative institutional arrangement (informal reciprocity, for example) is better suited to inducing the creation and circulation of the works at issue. “After all,” says Gordon, “artists don't usually thrive in bureaucracies.”
It may also be the case that non-monetizable interests like free speech are at stake, making a commercial market an inappropriate way to decide what uses of copyrighted work should or should not be permitted. In such cases, Gordon says, “The claims of the copyright owner can conflict with the claims of the public and of downstream authors. Often the claims of the copyright owner need to be reformulated to give greater scope to the public interest. And we cannot rely on industry practice to tell us what the public interest requires.”
In a 2007 article in The Yale Law Journal Pocket Part she argued, “Any licensing done out of fear of liability—whether reasonable or excessively risk-averse—is a poor guide to what a community believes.” Gordon holds that the divide between behavior and belief creates a ripe area for analysis and debate. “It's a divide,” she adds, “that results in large part from the failure of copyright legislation to truly reflect the public interest and the public's needs.”
In the last 25 years, changes in technology have made it more difficult to navigate the already-complicated waters of licensing and copyright. “Technology provides new questions, not answers,” Gordon says. It is fascinating, she admits, but it is only “the icing on the cake” made of underlying intellectual property issues.
For more information, see www.bu.edu/law/faculty/profiles/bios/full-time/gordon_w.html.
