DISTRIBUTION’S DIVERSITY AND FAIRER USES

Prof. Jessica SilbeyNortheastern University School of LawBoston, Massachusetts, U.S.A.

intended to circulate

public first

distributive justice

What if the economic rationale for IP explains only a small part of incentives and mechanisms of creative professionals and

industries?

What if the creative work is made and disseminated for various reasons and via

diverse mechanisms?

“Through qualitative empirical study, we learn that productive dissemination of creative work happens with looser forms of IP exclusivity or none at all.”

Jessica Silbey, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015)

“This suggests a form of waste … and the existence of alternative arrangements that might optimize our digital industries.”

Jessica Silbey, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015)

•misalignment between IP and making/distributing creative work

• persistent, intentional under-protection, leaving anti-copying protection “leaky”

Jessica Silbey, The Eureka Myth: Creators, Innovators and Everyday Intellectual Property (Stanford University Press, 2015)

progress rationales

making moneybuilding relationships

autonomy/self-determinationdeveloping competencies

forms of distribution

many and more

many and more

“if you can bring me a business that has tons of eyeballs, tons of users, with some kind of network effect … Go for it. Let the thing get bigger and bigger and bigger and bigger and somewhere along the way, we’ll figure out how to make money.”

forms of distribution

many and moremanaged performance

managed performance

“They have a really solid mailing list, and they have a really solid relationship with a lot of radio and … people everywhere…. The label thing just sets you apart, enough that people are going, ‘OK, … they like her enough to put her on the label.’ And it just allows you a little bit more attention … because ... everyone can do [their] own CD … people are getting barraged with CDs.”

forms of distribution

many and moremanaged performance

sharing

sharing

“[W]hen you make broadcast programs ... there is a cycle to it. You work so hard and then it airs, and then it’s just kind of, like, done. And you know, now with the Web and with DVRs and stuff, there is more life to it …. You meet history professors [who have unauthorized copies of the film], and they say, ‘Oh, I love using your film in my class.’ And it makes you feel better. I mean, it makes you feel like, ‘OK. Well, then people are still watching it.’ You know, it -- there is a life after the [televised] program.”

sharing“[Ripping CDs] It’s just free marketing. I mean, because … the people that actually buy CDs is still there, you know? But I feel like if you’re not going to buy it, but you’re going to give it to your friend, great. If you’re going to give it to five friends, that’s fine. Because I’d rather you have it if you’re not going to buy it. I mean, I’m not saying I want everyone to do that, obviously, because like I said, I’m still depending on the sales. But I mean, I discover a lot of good stuff by someone just bring me a CD, you know?”

forms of distribution

many and moremanaged performance

sharinggifting

hold-out

Goals Forms of Distribution

Many and More

Managed Performance

Sharing Gifting Hold Out

Revenue    

Establishing Relations

     

Self-Determination

     

Developing Competence

Goals Forms of Distribution

  Many and More

Managed Performance

Sharing Gifting Hold Out

Revenue    

Establishing Relations

     

Self-Determination

     

Developing Competence

Goals Forms of Distribution

  Many and More

Managed Performance

Sharing Gifting Hold Out

Revenue med device

trade pub (novels)

music 

Establishing Relations

  music  film

Self-Determination

 trade pub

(novels) 

Developing Competence

film med device

misfit between

IP rules & professional values

implications

Align private choices with IP regulation?

Specify and prioritize goals. Industry specificity?

Discern corporate & individual interests. Align or justify prioritization?

Just, productive, sustainable labor relationships.

implications

ownership defaults & assignment practicesattribution rules

revenue sharing expectationsdamages regimes

scope of derivative work rightdiversified micro-licensing platforms“fairer uses” by practice & industry

THE EUREKA MYTH: CREATORS, INNOVATORS AND EVERYDAY INTELLECTUAL PROPERTY

Prof. Jessica SilbeyNortheastern University School of LawBoston, Massachusetts, U.S.A.