Sharing access to intellectual property through private orderingChicago-Kent Lw Review (2007)
AbstractProperty and exclusivity are at the core of the intellectual rights. Traditionnally, copyright or patent rights are seen as tools to exclude others. Oddly enough, copyright and patent holders have started to engage in non-exclusionary practices through open access, open source or open licensing schemes. By using exclusivity not to exclude others but to include them, to share and socialize intellectual property, by giving rights to use, reproduce, modify and distribute works or inventions, those mechanisms reverse the traditional narrative of intellectual property and introduce commons features within the exercise of the right itself. Interestingly, such licensing schemes are based on private ordering (in comparison to delimitation of public domain or copyright/patent limitations provided by law). This paper examines the normative effect and process of open access initiatives and particularly its so-called copyleft effect, that aims at contaminating any derivative work or invention with the same freedoms (and obligations to grant this freedom). It assesses the nature of mechanisms of lawmaking operated by open-access initiatives, as well as its normative sustainability as a project to enlarge the public domain within intellectual property, and to do so on a global scale. Without denying the benefit and welcomed novelty of open access schemes, this paper underlines an unsolvable contradiction of copyleft licensing as a norm caught between a private ordering device and a public interest ideology and objective. This ambiguity is particularly relevant when analysing the legal trick of the copyleft clause that propagates the ambition of the sharing ideology through a chain of successive contracts imposing the sharing principle at each stage. This copyleft feature makes the contract running with the digital asset and transforms a contractual provision to what resembles to a property right. It has also some inherent weaknesses as the extent and success of such a procedural contamination requires that the chain of contracts distributing copies of the work, invention and improvements, or derivative works not be broken at some stage. The paper reviews the three factors on which it depends: (1) the scope of the virality based on the definition of the derivative products to be contaminated, (2) the legal validity of the copyleft effect, and (3) the effective compatibility between the licenses.
Citation InformationSeverine Dusollier. "Sharing access to intellectual property through private ordering" Chicago-Kent Lw Review Vol. 82 (2007)
Available at: http://works.bepress.com/severine_dusollier/14/