As a member of the co-hosting faculty, I am privileged to respond to the essays and discussion at the “Intellectual Property—Theoretical Underpinnings or Pure Pragmatism?” symposium held in London, Ontario, February 10, 2003.

1. See Schiller, Dan, “The Information Commodity: A Preliminary View” in Davis, Jim, Hirschl, Thomas A. & Stack, Michael, eds., Cutting Edge: Technology, Information, Capitalism, and Social Revolution (New York: Verso, 1997)Google Scholar (arguing that technical information theory provided a foundational assumption for subsequent intellectual traditions treating information as a commodity). See also Shapiro, Carl & Varian, Hal. R., Information Rules: A Strategic Guide to the Network Economy (Boston, MA: Harvard Business School Press, 1999).Google Scholar

2. The centrality of information technology in the production process in the emerging “information age” was emphasized by Daniel Bell’s seminal works on post-industrial society. See Bell, Daniel, The Coming of Post-Industrial Society: A Venture in Social Forecasting (New York: Basic Books, 1973)Google Scholar; and “The Social Framework of the Information Society” in The Microelectronics Revolution: The Complete Guide to the New Technology and its Impact on Society in Forester, Tom, ed., (Cambridge, MA: MIT Press, 1981) at 504–05 Google Scholar.

3. Castells, Manuel, The Informational City: Information Technology, Economic Restructuring and the Urban-regional Process (Oxford: Blackwell, 1989) at 15–16 Google Scholar. (pointing to the close relationship between a society’s symbolic capacity and its developmental process in what he terms the informational mode of development, Castells argues: “The more a society facilitates the exchange of information flows, and the decentralized generation and distribution of information, the greater will be its collective symbolic capacity. It is this capacity which underlies the enhancement and diffusion of information technologies, and thus the development of productive forces.” Ibid.

4. In the pre-digital world, ownership of underlying intellectual property in the rights holder is distinguished from the ownership of its physical container (i.e., the book, audio tape or vinyl recording) in the consumer. But in the digital environment, information objects may be disseminated without regard to the physical container.

5. See Boyle, James, “A Politics of Intellectual Property: Environmentalism for the Net?” (1997) 47 Duke L. J. 87 Google Scholar; Cohen, Julie E., “A Right to Read Anonymously: A Closer Look at ‘Copyright Management’ in Cyberspace” (1996) 28 Conn. L. Rev. 981 Google Scholar; Hamilton, Marci, “Copyright Duration Extension and the Dark Heart of Copyright” (1996) 14 Cardozo Arts & Ent. L.J. 655 Google Scholar; Jaszi, Peter, “Goodbye to All That—A Reluctant (and Perhaps Premature) Adieu to a Constitutionally-Grounded Discourse of Public Interest in Copyright Law” (1996) 29 Vand. J. Transnat’l L. 595 Google Scholar; Litman, Jessica, “The Public Domain” (1990) 39 Emory L. J. 965; Neil Netanel, Weinstock, “Copyright and a Democratic Civil Society” (1996) 106 Yale L. J. 283 Google Scholar; Samuelson, Pamela, “The U.S. Digital Agenda at WIPO” (1997) 37 Va. J. Int’l L. 369 Google Scholar.

6. See United States Department of Commerce, Intellectual Property and the National Information Infrastructure: The Report of the Working Group on Intellectual Property Rights (1995)Google Scholar, hereinafter The White Paper, available online at http://www.uspto.gov/web/offices/com/doc/ipnii (last accessed May 30, 2003).

7. Fitzgerald in this issue, p. 189. I also agree with the general thrust of Prof. Moore’s careful and sustained critique of utilitarianism made throughout his works, but for different reasons and yielding very different policy results.

8. For extensive reviews of the historical development of modern copyright law, see Lyman Patterson, Ray, Copyright in Historical Perspective (Nashville, TN: Vanderbilt University Press, 1968)Google Scholar; Whale, R.F., Copyright: Evolution, Theory and Practice (London: Longman,1971 Google Scholar); and Rose, Mark, Authors & Owners: The Invention of Copyright (Cambridge, MA: Harvard University Press, 1993 Google Scholar). For a summary of copyright history in Canada see Handa, Sunny, Copyright Law in Canada (Markham, ON: Butterworths, 2002) at 27–57 Google Scholar. On the relationship between the development of copyright and advances in technology, see Litman, Jessica, “Copyright Legislation and Technological Change” (1989) 68 Oregon L. Rev. 275 Google Scholar.

9. The Sonny Bono Copyright Term Extension Act (Public Law 105-298) provides a 20-year extension to the previous life-plus-50-year copyright term. The Act extends the copyright term retroactively as well as to newly created works. An action challenging the constitutionality of the measure was unsuccessful. In Eldredv. Ashcroft, 537 U.S. 186 (2003), the US Supreme Court upheld the retroactive extension by a vote of 7-2. For an extended discussion, see Prof. Austin’s paper in this issue.

10. Under both US and Canadian copyright law, the factual contents of a database do not warrant copyright protection because facts do not qualify as an original work. Sui generis database legislation would create new statutory rights in non-copyrightable databases and prohibit unauthorized acts of extraction and re-utilization of database contents. While it has already been enacted in the European Union, (see Directive 69/9/EC of the European Parliament and of the Council of 11 March 1996 on the Legal Protection of Databases), efforts to pass similar legislation in the US have failed to date. It is anticipated that new legislation will be introduced again in the US and ultimately in Canada. For a statement of the information industry’s position, see Tyson, Laura D’Andrea & Sherry, Edward F., “Statutory Protection for Databases: Economic & Public Policy Issues” www.house.gov/judiciary/41118.htm (last accessed May 30, 2003)Google Scholar. For a response, see Samuelson, Pamela, Letter to Representative Coble regarding database legislation, October 23, 1997. http://www.arl.org/info/frn/copy/psamlet.html (last accessed May 30, 2003)Google Scholar.

11. Public Law 105-304. The anti-circumvention measure (Section 1201) provides that “no person shall circumvent a technological measure that effectively controls access to a work protected by this title.” The act also contains broad limitations on the manufacture and distribution of devices capable of circumventing technological measures that control access to protected works or that protect the rights of a copyright owner. These provisions have been widely criticized as overly broad and likely to proscribe many acts that are legitimate and lawful such as encryption research and reverse engineering. Since its enactment civil and criminal enforcement actions have been brought that underline the opponents concerns regarding the chilling effect the measure would have on legitimate educational and research related uses of information. Similar measures are now under consideration in Canada as part of the ongoing consultation process on amendments to the Copyright Act (see A Framework for Copyright Reform at http://strategis.ic.gc.ca/epic/inter-net/incrp-prda.nsfnwGeneratedInterE/re01101e.html (last accessed May 30, 2003).

12. See, for example, the No Electronic Theft Act, Public Law 105-147 eliminating the requirement of direct financial gain for criminal liability. This requirement was already absent in Canadian law (see section 42 of the Canadian Copyright Act (R.S.C. 1985, c. C-42) containing broad criminal liability that is not dependant on a showing direct financial gain.) Before the passage of “No Electronic Theft Act of 1998,” (Public Law 105-147, codified at 17 U.S.C. 506) the US Copyright Act contained criminal penalties for willful copyright infringement only in cases involving commercial advantage or private financial gain. But in a 1994 case involving the distribution of copyrighted software over a student operated bulletin board, a court dismissed a criminal prosecution because the defendant never benefited financially from the transactions, U.S. v. LaMacchia, 871 F. Supp. 535 (D. Mass. 1994). This ruling triggered a strong reaction that was the impetus for the new legislation. Eliminating the requirement of direct financial gain, the Act extends the reach of criminal sanctions to include the reproduction or distribution of copyrighted works based upon the total retail value of the work. The act extends the statute of limitations from three to five years. (17 U.S.C. 507(a)) and ex Pressly calls for “victim impact statements” during sentencing. In their enthusiasm to close the perceived “LaMacchia loophole,” Congress has indeed cast a broad dragnet. While the Act is susceptible to a number of challenges, especially if prosecutors attempt to apply it broadly to persons in the non-profit sector, the measure will likely succeed in creating a chilling effect against the full exercise of one’s rights to copy and distribute works limited by copyright. This chilling effect highlights the nexus between copyright law and censorship. It also seems designed to shift certain costs of enforcement from the private parties who financially benefit from copyright protection to the public at large.

13. The Uniform Computer Information Transactions Act (UCITA), approved by the National Conference of Commissioners on Uniform State Laws (NCCUSL) in July 1999 will govern contracts for the development, sale, licensing, maintenance, and support of computer software, as well as most contracts for information goods in digital form. The act has been widely criticized by consumer, library and educational groups as being one sided in favor of software producers and because a vendor may draft a contract under UCITA that gives the user less rights then they would have under federal copyright law. To date, UCITA has been enacted only in Maryland and Virginia. But regardless of whether or not UCITA is enacted in a particular jurisdiction, it may be given an extra-territorial effect through a choice of law provision in a license.

14. See notes 1 and 2 and its accompanying text in Prof. Austin’s article in this issue. See also Hamilton, Marci A., “The TRIPS Agreement: Imperialistic, Outdated, and Overprotective” (1996) 29 Vand. J. Transnat’l L. 613, at 614Google Scholar (arguing that, “Far from being limited to trade relations, correcting the international balance of trade, or lowering customs trade barriers, TRIPS attempts to remake international copyright law in the image of Western copyright law. If TRIPS is successful across the breathtaking sweep of signatory countries, it will be one of the most effective vehicles of Western imperialism in history.”) See also Wilkinson, Margaret Ann, “The Challenges of Coping with Intellectual Property Regime Implementation: Observations on Canada and Vietnam” (2002) 16 Intell. Prop. J. 45 at 48 Google Scholar (arguing that international obligations such as NAFTA instigate changes in domestic legislation “driven by the need to implement Canada’s international trade commitments made at the trade negotiation tables rather than purely by domestic policy considerations.”

15. See The White Paper, supra note 6 at 23: “ … weakening copyright owners’ rights in the NII is not in the public interest; nor would a dramatic increase in their rights be justified. With no more than minor clarification and limited amendment, the Copyright Act will provide the necessary balance of protection of rights—and limitations on those rights—to promote the progress of science and the useful arts. Existing copyright law needs only the fine tuning that technological advances necessitate, in order to maintain the balance of the law in the face of onrushing technology.”

16. Waldron, Jeremy, “From Authors to Copiers” (1993) 68 Chi.-Kent L. Rev. 841 at 842 Google Scholar. See also Gordon, Wendy, “A Property Right in Self-Ex Pression: Equality and Individualism in the Natural Law of Intellectual Property” (1993) 102 Yale L. J. 1533 at 1550 Google Scholar, (describing property rights as including three entitlements, “First a property owner has a liberty to consume the property and use it harmlessly. Second an owner has a power to transfer the property. Third, an owner has a claim right to exclude anyone whose entrance or interfering use she wishes to oppose.”)

17. Waldron, ibid. at 844.

18. Locke, John, Second Treatise of Government [1694] (Indianapolis, IN: Bobbs-Merrill, 1952 Google Scholar) ch. 5, sect. 27.

19. “As much as any one can make use of to any advantage of life before it spoils, so much he may by his Labour fix a property in: whatever is beyond this, is more than his share, and belongs to others.” Ibid. ch. 5, sect. 31.

20. Moore, Adam D., Intellectual Property & Information Control: Philosophic Foundations and Contemporary Issues (New Brunswick , NJ: Transaction Publishers, 2001 Google Scholar). And see sect. III in Prof. Moore’s paper in this issue.

21. Ibid at 147-79. See also text accompanying notes 103-05 in Moore’s paper in this issue.

22. Hettinger, Edwin C., “Justifying Intellectual Property” (1989) 18 Phil. & Publ. Affairs 31 at 39–40 Google Scholar.

23. Ibid. at 40.

24. Ibid. at 38.

25. Ibid. at 41

26. Ibid.

27. Adam Moore’s position (that “[t]he appropriate baseline for determining bettering and worsening with reference to acquisition is the acquisitive case compared to the moment before the acquisition.”), this issue at p. 211, does not adequately account for the public interest in the commons. While all are free to make use of the commons (in the sense of R1), claiming exclusive (R2) or transferable (R3) rights necessarily does make someone else worse off. This problem is particularly applicable to the issue of sui generis database legislation, where the proponents seek to appropriate a full set of rights in raw facts or data based on “sweat of the brow.”

28. Shiffrin, Seana Valentine. “Lockean Arguments for Private Intellectual Property” in Munzer, Stephen, ed., New Essays in the Legal and Political Theory of Property (New York: Cambridge University Press, 2001).Google Scholar

29. Ibid. at 141.

30. Ibid. at 142.

31. Ibid. at 143.

32. Ibid.

33. Ibid.

34. Ibid at 149.

35. Ibid at 167.

36. Notions of personhood and autonomy derived from George Hegel are also invoked as justifications for intellectual property rights. See Hughes, Justin, “The Philosophy of Intellectual Property” (1988) 77 Geo. L.J. 287 Google Scholar (arguing that taken together with Locke, Hegel provides affirmative justifications for intellectual property rights). But see Radin, Margaret Jane, “Property and Personhood” (1982) 34 Stan. L. Rev. 957 Google Scholar (arguing that personal rights should take precedence over fungible rights). Considerations of space do not permit a full analysis of Hegelian thought and its justification for intellectual property rights. However, the use of Hegel to justify fully exclusive and transferable economic rights seems problematic, and his concerns with self-actualization are more appropriately used to justify non-transferable moral rights of authors.

37. For an overview of utilitarian analysis as a justification for property rights in general, see Becker, Lawrence C., Property Rights: Philosophic Foundations (London: Routledge & Kegan Paul, 1977) at 57–74 Google Scholar; Macpherson, C.B., Property: Mainstream and Critical Positions (Toronto, ON: University of Toronto Press, 1978), at 39–58 and 75-99Google Scholar.

38. For an extended discussion of the development of utilitarian theories of intellectual property that rely on various strands of economic analysis, see Menell, Peter S., “Intellectual Property: General Theories” in Encyclopedia of Law and Economics, ch. 1600 at 155 http://encyclo.findlaw.com/1600book.pdf (last accessed May 30, 2003)Google Scholar. Menell identifies two branches of positive analysis relating to intellectual property: “... scholars reflecting the Chicago tradition have argued that intellectual property doctrine can be explained as a means for promoting efficient resource allocation. ... A second tradition, building upon the insights of public choice theory, has examined the political process producing intellectual property legislation and the extent to which such legislation reflects the outcome of interest group politics.”

39. M. Landes, William & Posner, Richard A., “An Economic Analysis of Copyright Law” (1989) 18 J. Legal Stud. 325 Google Scholar

40. Ibid. at 326.

41. See also Besen, Stanley & Raskind, Leo, “An Introduction to the Law and Economics of Intellectual Property” (1991) 5 Google Scholar J. Econ. Perspectives 3 (reiterating this justification for intellectual property laws in economic terms and arguing that government needs to support innovation and encourage creative activity). Besen & Raskind define the objective of intellectual property rights as the creation of “incentives that maximize the difference between the value of the intellectual property that is created and used and the social cost of its creation, including the cost of administering the system.” Ibid at 5.

42. Failure of competition may be remedied through Antitrust or other Unfair Competition Laws. The common example given for externalities is pollution, which can also be controlled through regulation. Imperfect information may be mitigated through disclosure, fair reporting requirements as well as through the common law of fraud.

43. For texts in public finance theory that develop the concept of public goods, see Aronson, Richard J., Public Finance (New York: McGraw Hill, 1985)Google Scholar; Veseth, Michael, Public Finance (Reston, VA: Reston Publishing Co., 1984)Google Scholar; and Stiglitz, Joseph E., Economics of the Public Sector, 2nd ed. (New York: Norton, 1988).Google Scholar

44. See infra Section III, A.

45. In exception to this generalization would be informational resources that have a limited time value and loses value as it is disseminated (i.e., hot news, sensitive market information).

46. For a review of the emerging technological protection measures increasingly in use, see Canadian Heritage (2003). Technical Protection Measures: Part I—Trends in Technical Protection Measures and Circumvention Technologies. Available online at http://www.pch.gc.ca/progs/ac-ca/progs/pda-cpb/pubs/protection/indexe.cfm (last accessed May 30, 2003).

47. See Veseth, Public Finance, supra note 43 at 58.

48. Margaret Radin, Jane, Contested Commodities (Cambridge, MA: Harvard University Press, 1996) at 85 Google Scholar; see also Richardson, Henry S., “The Stupidity of the Cost-Benefit Standard” in Adler, Matthew D. & Posner, Eric A., eds., Cost Benefit Analysis: Legal, Economic, and Philosophical Perspectives (Chicago, IL: University of Chicago Press, 2001) 135 Google Scholar at 136 (arguing that argues that cost-benefit analysis underlying standard of choice “makes no room for intelligent deliberation about how to best use our resources,” and that it “defeats its own aims”).

49. Hettinger, supra note 22 at 48.

50. Ibid. Hettinger suggests that increased public support for intellectual labor in the form of government funding is such an alternative. He also argues that government funding can be divorced from government control over what is funded. Ibid at 49. See also Bettig, Ronald V., Copyrighting Culture: The Political Economy of’Intellectual Property (Boulder, CO: Westview Press, 1996) at 44 Google Scholar (questioning the validity of the philosophical justifications for granting private intellectual property rights, particularly the assumptions that “that these rights encourage the production and dissemination of artistic and intellectual creativity through pecuniary rewards to actual creators; and second that they stimulate the dissemination of this work to the benefit of society as a whole.”)

51. “The wealth of those societies in which the capitalist mode of production prevails, presents itself as “an immense accumulation of commodities,” its unit being a single commodity. Our investigation must therefore begin with the analysis of a commodity.” Capital, ch. 1, sect. 1).

52. Marx quotes Aristotle in footnote 1 to chapter 1 in Contribution to a Critique of Political Economy (New York: International Publishers, 1970) at 27: “Of everything which we possess there are two uses:… one is the proper, and the other the improper or secondary use of it. For example, a shoe is used for wear, and is used for exchange; both are uses of the shoe. He who gives a shoe in exchange for money or food to him who wants one, does indeed use the shoe as a shoe, but this is not its proper or primary purpose, for a shoe is not made to be an object of barter. The same may be said of all possessions….” (Aristotle, De Republica, L.I, C.)

53. Ibid. at 28.

54. Marx, Karl, Value, Price and Profit [1856] (New York: International Publishers, 1974).Google Scholar

55. Ibid. at. 29. To demonstrate how the qualitatively distinct aspect of use-value is related to the equivalence required for exchange-value, Marx utilizes the metaphor of the geometric form of a triangle: “In comparing the areas of triangles of all possible forms and magnitudes, or comparing triangles with rectangles, or any other rectilinear figure, how do we proceed” We reduce the area of any triangle whatever to an ex Pression quite different from its visible form. Having found from the nature of the triangle that its area is equal to half the product of its base by its height, we can then compare the different values of all sorts of triangles, and of all rectilinear figures whatever, because all of them may be resolved into a certain number of triangles.” Ibid. at 30.

56. Marx says: “We arrive, therefore, at this conclusion. A commodity has a value, because it is a crystallization of social labour. The greatness of its value, or its relative value, depends upon the greater or less amount of that social substance contained in it; that is to say, on the relative mass of labour necessary for its production. The relative values of commodities are, therefore, determined by the respective quantities or amounts of labour, worked up, realized, fixed in them. The correlative quantities of commodities which can be produced in the same time of labour are equal. Or the value of one commodity is to the value of another commodity as the quantity of labour fixed in the one is to the quantity of labour fixed in the other.” Ibid. at 31.

57. Hurt, Robert M. & Schuchman, Robert M., “The Economic Rationale of Copyright (in The Economics of Publishing)” (1966) 56 Google Scholar Am. Econ. Rev. 421 at 426.

58. While the origin of the quote is unclear, it is usually attributed to Brand, Stewart, The Media Lab: Inventing the Future at MIT (New York: Viking, 1987).Google Scholar For a discussion of the lineage and use of the aphorism, see Clarke, Roger, “Information Wants to be Free” (2001)Google Scholar, available online at http://www.anu.edu.au/people/Roger.Clarke/II/IWtbF.html (last accessed May 30, 2003).

59. The labor theory of value was derived from the eighteenth century political economists Adam Smith and David Ricardo and used by Karl Marx to explain how commodities take on value. Marx’s version of the labor theory of value may be stated as: goods will exchange accordingly to their socially necessary cost of production measured in socially necessary abstract labor time.

60. For a summary of the importance of this special feature of labour power, see Harvey, David, The Limits to Capital (London: Verso, 1999) at 24 Google Scholar: “[Marx] began... with the simple conception of the commodity as an embodiment of use value and exchange value. Out of the proliferation of exchange he derived the necessity for money as an ex Pression of value and showed a necessary relation between the capitalist form of circulation and the determination of exchange ratios according to socially necessary labour time. He has now shown us that the contradiction this generates between the equivalence presupposed by exchange and the inequality implied by profit can be resolved only by identifying a commodity that has the special characteristic of being able to produce greater value than it itself has. Labour power is such a commodity.”

61. Bell, Daniel, “The Social Framework of the Information Society” in Forester, T., ed., The Microelectronics Revolution: The Complete Guide to the New Technology and its Impact on Society (Cambridge, MA: MIT Press, 1980) 500 at 506.Google Scholar

62. “... productions of the human brain appear as independent beings endowed with life, and entering into relation both with one another and the human race. So it is in the world of commodities with the products of men’s hands. This I call the Fetishism which attaches itself to the products of labour, so soon as they are produced as commodities, and which is therefore inseparable from the production of commodities.” Capital, ch.1, sect. 4.

63. Section 13(3) of the Canadian Copyright Act results in the same sort of desegregation in the case of works made in the course of employment. Another important difference between a work for hire and an assignment is that in the case of an assignment, the original author retains certain reversionary rights that may take effect 35 years from the grant (17 USC section 203). To appreciate the significance of this provision, one need only consider popular music from the 1960’s and 70’s as examples of older works that retain significant commercial value.

64. See Boyle, James, Shamans, Software, And Spleens: Law and the Construction of the Information Society (Cambridge, MA: Harvard University Press, 1996).Google Scholar

65. See Ginsparg, Paul, “First Steps Towards Electronic Research Communications” (1994) 8 Computers in Physics 390 Google Scholar; “Winners and Losers in the Global Research Village” (1997) 30 The Serials Librarian 83. (describing an automated archive for electronic communication in physics and other disciplines). The system has been in operation since 1991. Initially the database was limited to the sub-field of high-energy physics and was intended to reach a community of less than 200 specialists working on a specific problem. But within a few months, there were over a thousand users. While the high-energy physics community had a pre-existing hardcopy preprint tradition, Ginsparg argues that such a pre-existing tradition is not a necessary condition for acceptance of an electronic preprint archive. Databases for additional areas of physics and some other fields were added and by 1996 there were over 35,000 users. Ginsparg argues that many of the lessons learned from this system should carry over to scholarly communications in other disciplinary fields of where authors are not writing for direct financial remuneration. See also Association of Research Libraries, “To Publish and Perish” (1998)Google Scholar The Pew Report, available online at http://www.arl.org/scomm/pew/pewrept.html, (last accessed May 30, 2003) stating that “most faculty members understand that the economic value of research results lies not so much in the fact of publication as in the stature and hence market position that a consistent history of publication brings to an individual.”

66. For an overview and evaluation of the free source movement, see, Eric S. Raymond, “The Cathedral and the Bazaar,” FirstMonday 3 (March 1998). Available online at http://www.first-monday.dk/issues/issue3_3/raymond/index.html (last accessed May 30, 2003). See also Brian Fitzgerald, this issue at section III, 3.

67. Marx’s theory of alienation is set forth in a passage entitled “Estranged Labour” in the Economic and Philosophical Manuscripts written in Paris in 1844. He begins the fragment with a general critique of the analysis of the classical political economists: “Political economy begins from the fact of private property; it does not explain it. It conceives the material process of private property, as this occurs in reality, in general and abstract formulas which then serve as its laws. It does not comprehend these laws; that is, it does not show how they arise out of the nature of private property. Political economy provides no explanation of the basis for the distinction of labour from capital, or capital from land.” “Economic and Philosophical Manuscripts,” trans. Bottomore, T.B., ed., Karl Marx: Early Writings (New York: McHil Graw, 1964) at 120.Google Scholar

68. Ibid. at 131.

69. Kennedy, Duncan, “The Role of Law in Economic Thought: Essays on the Fetishism of Commodities” (1985) 34 Amer. U. L. Rev. 939 at 994 Google Scholar.

70. Hettinger, supra note 22 at 52.

71. Ibid.