Benkler (1999)

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1. Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare 2. Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)? 3. Harmony of interest assumption between authors and publishers (creators and producers/investors) 4. Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption) 5. Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)

A. Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right) B. Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction) C. Mass digitisation/orphan works (non-use; extended collective licensing) D. Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability) E. Fair remuneration (levies; copyright contracts) F. Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Source Details

Benkler (1999)
Title: Free as the air to common use: First amendment constraints on enclosure of the public domain
Author(s): Benkler, Y.
Year: 1999
Citation: Benkler, Y. (1999). Free as the air to common use: First amendment constraints on enclosure of the public domain. NyuL Rev., 74, 354.
Link(s): Definitive , Open Access
Key Related Studies:
Discipline:
Linked by:
About the Data
Data Description: Alongside a literature review, the work assess the validity of the proposed ideas by reviewing the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act.
Data Type: Primary and Secondary data
Secondary Data Sources:
Data Collection Methods:
Data Analysis Methods:
Industry(ies):
Country(ies):
Cross Country Study?: No
Comparative Study?: No
Literature review?: Yes
Government or policy study?: No
Time Period(s) of Collection:
  • Non stated
Funder(s):

Abstract

Our society increasingly perceives information as an owned commodity. Professor Benkler demonstrates that laws born of this conception are removing uses of information from the public domain and placing them in an enclosed domain where they are subject to an owner's exclusive control. Professor Benkler argues that the enclosure movement poses a risk to the diversity of information sources in our information environment and abridges the freedom of speech. He then examines three laws at the center of this movement: the Digital Millennium Copyright Act, the proposed Article 2B of the Uniform Commercial Code, and the Collections of Information Antipiracy Act. Each member of this trio, Professor Benkler concludes, presents troubling challenges to First Amendment principles.

Main Results of the Study

  • Expecting information to be owned, and to be controlled by its owner, blinds us to the cost that this property system imposes on our freedom to speak.
  • The First Amendment requires a robust public domain.
  • As regulations of information production and exchange, copyright and related laws are regulations of speech.
  • The position that information released into the body of human knowledge is free as the air to common use is not an empty aphorism or a transient policy preference. It is a commitment expressed in the First Amendment speech and press clauses.

Policy Implications as Stated By Author

  • Copyright and similar laws tend to concentrate information production, therefore property rights in information are doubly suspect from a First Amendment perspective. First, they require the state to prevent people from speaking in order to increase information production in society. Second, the mechanism of property rights tends to favor a certain kind of increased production-production by a relatively small number of large commercial organizations.
  • Information should be free as the air to common use absent very good reasons to the contrary.
  • Judges and legislators faced with decisions that will lead to further enclosure of the public domain must recognize the constitutional dimensions of their decisions. They must proceed with the caution warranted whenever a government official is asked to restrict the freedom of many people to use information and to communicate it to each other.


Coverage of Study

Coverage of Fundamental Issues
Issue Included within Study
Relationship between protection (subject matter/term/scope) and supply/economic development/growth/welfare
Green-tick.png
Relationship between creative process and protection - what motivates creators (e.g. attribution; control; remuneration; time allocation)?
Harmony of interest assumption between authors and publishers (creators and producers/investors)
Effects of protection on industry structure (e.g. oligopolies; competition; economics of superstars; business models; technology adoption)
Understanding consumption/use (e.g. determinants of unlawful behaviour; user-generated content; social media)
Coverage of Evidence Based Policies
Issue Included within Study
Nature and Scope of exclusive rights (hyperlinking/browsing; reproduction right)
Green-tick.png
Exceptions (distinguish innovation and public policy purposes; open-ended/closed list; commercial/non-commercial distinction)
Green-tick.png
Mass digitisation/orphan works (non-use; extended collective licensing)
Licensing and Business models (collecting societies; meta data; exchanges/hubs; windowing; crossborder availability)
Fair remuneration (levies; copyright contracts)
Enforcement (quantifying infringement; criminal sanctions; intermediary liability; graduated response; litigation and court data; commercial/non-commercial distinction; education and awareness)

Datasets

Sample size: 3
Level of aggregation: Legislative review
Period of material under study: Non stated