Recent developments
The contributions discussed thus far all, in any case, refer to a scenario that could be described as obsolete from the technological, scientific and economic standpoints. Recent innovations have in fact already extensively called into question a regulatory system that is anchored to an out-of-date technological substrate, ignoring the effective rapid evolution and mutations of the technology landscape.
The lively contemporary debate, covered extensively in the media, reveals widely diverging views as to the function and effectiveness of intellectual property rights in the various current and future socioeconomic contexts. At the root of this disagreement are two specific, and in a sense opposing, phenomena. On the one hand, technological change has de facto weakened the right, by providing new tools for the duplication and dissemination of information, thereby endangering the consolidated interests of intellectual property stakeholders. This is what happened, for example, in the celebrated Napsteri4 case, where it was not just the violation of copyright that was put on trial, but the new peer-to-peer file-sharing systems themselves.i5 So the advent of new behaviours made possible by novel technologies, coupled with reliance on traditional legal paradigms that no longer fully fit the altered context, poses a thorny dilemma that can be solved only by looking beyond vested interests. Without a doubt, blindly coming down on the side of intellectual property is not an optimal solution, because there is just as strong a need to preserve the innovative dynamic which, even if it compromises preexisting interests as a side-effect, does not for this reason lose importance (Lessig, 2001).36
This idea finds solid support in the very same literature on innovation, pioneered by Schumpeter (1943), which in its time upheld the importance of intellectual property.
Some recent authors have in fact gone back to this work as a starting point to rediscover Arrow’s solution (1962) of an upstream remuneration system that does not disturb the competitive nature of the downstream market (Boldrin and Levine, 2002). On the other hand, the scientific and technological dynamic itself creates new opportunities for profit under the existing regulatory framework, thereby stimulating behaviours that have little to do with innovative investment, but are aimed instead at securing new sources of income, if necessary by diverting resources away from other creative and productive activities (David, 2000). This state of affairs has been judged to exist, for example, in the case of the patenting of genetic material, where the current system is often manipulated for purely rent-seeking aims, with the not-inconsiderable side-effect of damaging scientific activity which is of necessity incremental, and relies upon appropriation of preceding knowledge (Barton, 2000; Bobrow and Thomas, 2001).37 This threat is propagating across the entire sphere of open science and technology, which are increasingly encroached upon by the indiscriminate extension of proprietary systems and the resultant progressive erosion of the public domain, that is so necessary and essential for creative activities (David, 2000).Generally speaking, today we are witnessing an unprecedented extension of traditional rights into new spheres, in a manner not always clearly justifiable by the logic of incentive. Some cases worth citing, among those currently being debated, are the patentability of business concepts (Merges, 1999) and software.
This relentless expansion of the current legal apparatus is generating a highly fragmented and complex system of rights, whose management incurs high transaction costs, with the effect of discouraging those types of creative activities that cannot afford these new costs. In other words, the markets of ideas - though rescued from the risk of failure due to free-riding - are now in danger of another type of failure arising from the proliferation of rights and the attendant heavy operating costs.
This eventuality has been described in the literature as the ‘tragedy of the anticommons’ (Heller, 1998).Finally, a number of quite recent contributions, driven also by the unprecedented creative dynamics of the Open Source software movement, which has even generated its own body of literature (see Lerner and Tirole, 2001; vol. 32, issue 7 of Research Policy, 2003), consider the possibility of formulating incentive paradigms for creative activities that are either alternative or complementary to intellectual property, and able to contain the costs of an overly burdensome legal system. In particular, these authors strive to better understand the processes involved in creativity and knowledge production by referring to specific studies from the other human sciences, invoking the ‘gift’ paradigm used in anthropology to at least partially explain the creative dynamic (Gordon, 2002, 2003; Zeitlyn, 2003), or the shared character of social processes that constitute the environment in which knowledge is produced (Benkler, 2003; Ramello, 2005).