The Concept of Property in the Digital Era

Abstract

In this Essay I argue that the basic case for property is still a very strong one. Individual control over individual assets still makes sense. I defend property rights in digital creations in the face of two general scholarly critiques: The first is what I call digital determinism - the idea that the central driving force behind IP policy should be the technological imperatives of digital creation and distribution. I argue that the inherent logic of digital technology should not drive IP policy. Second, I discuss the idea that the distinctive feature of digital technology, and therefore the thing that policy should most seek to encourage, is collective creativity. I argue that individual creators are still crucial, and that IP law does not interfere with widely dispersed collective works such as Wikis. Finally, I push for recognition that IP policy should not be blinded by the promise of massive amounts of amateur content; solicitude for what I call "creative professionals" - people who make a living creating high-quality content - has been and must continue to be an important part of IP law.