3.4 TWO SCHOOLS OF IP THOUGHT: MAXIMALISM AND MINIMALISM
Contemporary debates on IP largely settle into a binary with a small but vocal group advocating a raft of alternatives that we will discuss in the course of this unit. This binary grouping further helps in the contextualization of these alternatives to strict copyright regimes. IP maximalists and minimalists have drastically different ideas of the contours and consequences that IP law must hold. At a more fundamental level, they also disagree on the very idea of property. IP maximalists conceptualize intellectual property as a building block of the economy. That do not see how intellectual goods and services can be ‘marketized’ so to speak without vesting a property right in it, either to the creator or the company that engages in its dissemination. Further, maximalists see IP as intrinsic to the human existence in this era. When intellectual goods are the scarce, valued goods of the contemporary treating them as property seems to be the only logical consequence. IP minimalists on the other hand perceive IP to be a legal fiction that is extrinsic to our existence, a tool of the information age that seeks to manage the flow of goods, not play a deterministic role. They also believe that the term intellectual property means naught because it attempts to club a host of diverse subjects into an unlikely group. Patents, copyright and trademark, they argue, are each governed by a unique set of norms. Forcing a common thread to run through all three to create a discipline is something that many are against. There are also dangerous ramifications to this, especially when justifications for copyright are made using the example of pharmaceuticals patents, when there exists nothing in common between the two. Finally, there’s an entire line of thought that believes that knowledge should not be relegated to the caprices of the private sphere but must remain the vital public resource, a part of the commons that it is. The concept is that nothing can be constructed in a vacuum; so whether you have authored a book, penned lyrics, shot a YouTube video or a multi-billion dollar movie, you have been inspired by, drawn and learnt from, and engaged with a large corpus of other people’s work. Therefore, you owe it to the community at large to ensure that your work is also made available to the authors, artists and creators of the future. The mainstream school of thought continues to be that of maximalism. It is one where copyright is seen as the norm, while the commons as the exception. So far, we have discussed what the shortcomings of such a system are and how it affects the multiple stakeholders at play here – the creators, the consumers, the respective fields (music, academics etc.) and the economy/community at large. We understand that continuing down this path will lead to the Balkanization of knowledge with the greatest access being made available only to the most privileged sections of society with entire academic communities, and sometimes regions, being left out of the conversation. The sad irony of this predicament we find ourselves in is that today we live in an age when information exchange is more democratic and possible than ever before with advances in technology and the widespread proliferation of the internet. This move to the digital space also provides answers to the IP conundrum. The alternatives that we discuss - Creative Commons and Science Commons licenses – are products of the digital world that transcend the limitations of copyright laws drafted by individuals who as Swartz would say don’t “understand what the internet is”13. We will also introduce you to other alternatives that are gradually gaining traction such as the Creater-Endorsed Mark that was used as the preferred licensing tool in the film ‘Sita Sings the Blues’.14 By the end of this unit, t you would have gained a holistic understanding of the conceptual basis of the creative common system and practical knowledge of how to procure a license.