The Pleasure of Ownership – A Self-reflection

-- By SharanjitSandhu - 08 Nov 2017

Introduction

Before coming to law school, I worked for a film studio in their intellectual property department. I primarily worked on IP enforcement matters related to the company’s television and film properties.

As someone who loves solving problems, this role attracted me because of the possibility of being a part of something much larger than myself. I liked the idea that our group was making tangible efforts to “protect” film makers and artists. By helping various business units properly set and maintain their intellectual property portfolios, our group was not only protecting the creativity of the artists that worked on these films, but also helping the company monetize these films in order to keep making great art. That was something I felt was rewarding.

I admit, it does sound a bit over exaggerated. But as a recent college grad who was extremely excited to understand the film industry and intellectual property, I thought this was exhilarating stuff. It might surprise you, but it never really occurred to me that helping to take down a t-shirt with a picture of our studio’s copyrighted character on it from an online marketplace or shutting down an unauthorized film screening at a charity picnic was anything but necessary. It seemed to be a part of the entertainment landscape and essential to managing an IP portfolio because it was industry standard.

But after reflecting on these industry norms now, I do find myself wondering if all of this is really necessary. I hope to explore my newfound perspective and make the argument that enforcing intellectual property rights is not necessary to make money off of it.

The Landscape

Intellectual property laws allow us to claim things. The presumption being, if we do not claim something as our property, then someone else will claim it as theirs. This idea of property stands for exclusion.

But why claim anything in the first place? Well, you could argue that there is a huge financial incentive. If I do not claim something as mine, then someone will not only claim it as theirs, but make money off it and I do not want that to happen. So, we copyright our works in order to prevent other people from not only taking credit for "our ideas", but from also making money off of them.

But are these ideas really our own? Probably not. We are constantly learning from our environment and we were probably inspired by something else or someone else which led to our “idea”. However, we want copyright protection in order be able to monetize our works and not assist anyone else in monetizing off of it.

The Problem

So, we have intellectual property laws that allow us to claim things as our own in order to somehow monetize them. So, what?

The fundamental problem arises when we think we should live in a world where ideas should be shared in order to promote learning. If we want to allow every person to be able to learn whatever they want and to do it at whatever extent they desire, then the power to exclude someone from learning something is bad.

Therefore, intellectual property laws inhibit the freedom and ability to learn. Instead, you can only learn something or experience it for a price or some sort of access.

However, if your priority for creating certain kinds of content is not to share or educate, but to make money, then we may want the power to exclude other people from taking credit for our creative content.

But do these two ideas need to be mutually exclusive? Does making money need to mean we cannot share ideas or content and allow others to learn from them? Not necessarily.

Possible Solution

Larry Lessing’s TED Talk, “Re-examining the remix,” explores possible solutions to this problem. He explains that there are places for the market and places where the market should not exist. One such place where the market should not exist and where folks should be “free” is the creative space.

Moreover, Lessing identifies two creative cultures – (1) a commercial culture and (2) a sharing culture. He suggests that possible solutions to allowing both cultures to exist simultaneously is to (1) protect and broaden fair use, (2) allow freedom without permission to create, and (3) respect the creator of a work through the Creative Commons.

Conclusion

Fine, it sounds simple. Push for broader fair use in our copyright laws and promote the Creative Commons. But will this actually happen?

It is possible, but unfortunately, without a revamping of our intellectual property laws in the US, it will be extremely difficult. Also, the entertainment industry norm is to heavily enforce intellectual property portfolios. If Hollywood is pushing against the “openness” of fair use through lobbying and hefty political donations, it is likely that this problem will continue.

What would be interesting to see is if the entertainment industry shifted its perspective to embrace fans and promote fair use of certain works – allowing folks to interact with content and be creative themselves.

I do not think this shift is impossible or that one should give up hope. I was once part of the problem and I am able to see the positive outcomes of a new system. I think it is possible for others too.

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