The Concept of Property in the Digital Era

37 Pages Posted: 8 Jan 2009

See all articles by Robert P. Merges

Robert P. Merges

University of California, Berkeley - School of Law

Date Written: January 5, 2009


In this Essay I argue that the basic case for property is still a very strong one. Individual control over individual assets still makes sense. I defend property rights in digital creations in the face of two general scholarly critiques: The first is what I call digital determinism - the idea that the central driving force behind IP policy should be the technological imperatives of digital creation and distribution. I argue that the inherent logic of digital technology should not drive IP policy. Second, I discuss the idea that the distinctive feature of digital technology, and therefore the thing that policy should most seek to encourage, is collective creativity. I argue that individual creators are still crucial, and that IP law does not interfere with widely dispersed collective works such as Wikis. Finally, I push for recognition that IP policy should not be blinded by the promise of massive amounts of amateur content; solicitude for what I call "creative professionals" - people who make a living creating high-quality content - has been and must continue to be an important part of IP law.

Suggested Citation

Merges, Robert P., The Concept of Property in the Digital Era (January 5, 2009). Available at SSRN: or

Robert P. Merges (Contact Author)

University of California, Berkeley - School of Law ( email )

215 Boalt Hall
Berkeley, CA 94720-7200
United States
510-643-6199 (Phone)
510-643-6171 (Fax)

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