The Privatization of Information through Intellectual Property

Abstract

Information is at the heart of the knowledge economy and is increasingly sought after. Information also lies at the heart of intellectual property, even if it has been traditionally left beyond its scope. In addition to recent evolution, some basic principles have gradually fallen from view, and the subject has experienced a deep mutation. Copyright was originally designed to protect authors and to provide incentives for them to create for the benefit of society. Nowadays, however, it is increasingly presented as a mechanism for protecting an investment. Furthermore, access to creative work in the digital environment has been restricted by technical measures, which are at the same time protected by anti-circumvention law. This change has had some influence over the free use of information, which has been called into question in many regards. This contribution seeks to trace back this evolution, acknowledging the trend toward the privatization of information through copyright (understood here in an extended sense, including neighboring and sui generis rights). Secondly, it proposes three types of remedy: (1) returning to basic principles in applying rules pertaining to this issue; (2) re-establishing these principles through rules outside of copyright law, such as competition law, media law, and fundamental rights; and (3) re-evaluating and reshaping existing rules in the light of their new paradigms.

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