Property, Persona, and Preservation
Deven R. Desai
Thomas Jefferson School of Law
March 3, 2008
Temple Law Review, Vol. 81, No. 1, p. 67, 2008
TJSL Legal Studies Research Paper No. 1101648
The intellectual property system has fostered many debates including recent ones regarding how the system affects access to knowledge. Yet, before one can access, one must preserve. Two interconnected problems posed by the growth of online creation illustrate the problem. First, unlike analog creations, important digital creations such as emails and word processed documents are mediated and controlled by second parties. Thus although these creations are core intellectual property, they are not treated as such. Service providers and software makers terminate or deny access to people's digital property all the time. In addition, when one dies, some service providers refuse to grant heirs access to this property. The uneven and unclear management of these creations means that society will lose access to perhaps the greatest chronicling of human experience ever. Accordingly, this paper investigates and sets forth the theoretical foundations to explain why and how society should preserve this property. In so doing the Paper finds that a second problem, which can be understood as one of control, arises.
This Paper is the first in a series of works aimed at investigating the nature and extent of control one may have and/or exert over a work. As such this Paper begins the project by examining the normative theories behind creators', heirs' and society's interests in the works. All three groups have interests in preservation, but the basis for the claims differs. In addition, an examination of the theoretical basis for these claims shows that the nature of the attention economy in conjunction with labor-based and persona-based property theories support the position that in life a creator has strong claims for control over her intangible creations. Yet, the paper finds that historical and literary theory combined with recent economic theory as advanced by Professors Brett Frischmann and Mark Lemley regarding spillovers and positive externalities generated by access to ideas and information reveal two points. First, these views support the need for better preservation of digital, intellectual property insofar as they are infrastructure and have the potential for spillover effects. Second, although the creator may be best placed to manage and exert control of the works at issue, once the creator dies literary, historical, and economic theory show that the claims for control diminish if not vanish. The explication and implications of this second point are explored elsewhere. This Paper lays the groundwork for seeing that creators may need and have powerful claims for access and control over their works but that these same claims are necessarily limited by an understanding of the nature of creation and creative systems. The dividing line falls between life and death. The life and death distinction that this Paper offers seeks to balance creators' interests in control over a work and society's interests in fostering later expressions and creations of new works. This Paper examines the life side of the line.
Number of Pages in PDF File: 57
Keywords: copyright, attention economics, email, digital property, inheritance, spillovers, access to knowledge, preservation
JEL Classification: K11, K12, O30, O31Accepted Paper Series
Date posted: March 4, 2008 ; Last revised: August 13, 2009
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