Introduction
The development of societies has always been fueled by intellectual production activities. As societies evolve, maintaining a balance between safeguarding the rights of creators and granting society access to intellectual products for progress and well-being becomes crucial.
At the same time, enabling society to utilize its members’ intellectual products necessitated the presence of intermediaries who demanded protection of their right to receive compensation for their roles. For centuries, the role of intermediaries has complicated the process of achieving a balance between intellectual property rights and society’s right to benefit from them. This issue is now framed within the right to access information concept.
Intellectual property protection laws are supposed to be a tool for achieving the balance mentioned above. However, due to historical, economic, and political reasons, they have always favored intermediaries’ interests. The advent of digital technologies and their interference in the processes of production and access to intellectual products have severely challenged this balance.
This paper argues that digital technologies have exposed an inherent contradiction in the intellectual property protection laws approach: the difficulty of reconciling intellectual property rights with the right to access information. As a result, these laws, in their traditional form, which remains largely unchanged today, have become an obstacle to realizing the right to access information. This necessitates finding an alternative approach to protect fair and equitable intellectual property rights without impeding society’s optimal enjoyment of the right to access information.
The paper establishes its basic argument by discussing key definitions in its first section. The definitions include the concept of an intellectual product, the distinction between moral and material rights, and the different forms of intellectual property.
In its second section, the paper discusses the critical impact brought about by the advent of digital technology, with the creation of digital products, mainly software, and the challenge it posed to the traditional production cycle pattern. The paper also discusses the alternative innovations these technologies offer to protect intellectual property rights while maximizing the accessibility potential to digital products.
Finally, the paper reviews different approaches to balancing intellectual property protection with public access to intellectual works. It examines three models: extending the traditional legal framework; adopting semi-traditional approaches that retain the existing structure while improving access to information; and drawing from open-source software development models, which promote open access to information to maximize its benefits for individuals and society.
What are Intellectual Property Rights?
This section briefly introduces some basic concepts about intellectual property and how it differs from other forms of property. These concepts are important because they highlight the unique nature of intellectual products as tools for transferring information.
This section focuses on the contradictions between intellectual products’ nature and role in facilitating access to information and the classical perception of them as commodities, which has shaped the legal and regulatory frameworks surrounding them.
It also addresses the unique nature of intellectual products before the digital era. This distinct nature necessitated the emergence of practices and laws to protect the rights associated with intellectual products. However, these laws consistently adhered to an approach based on the same framework used to protect the property rights of ordinary commodities. This approach resulted in an imbalance within intellectual property protection laws.
The Concept of Intellectual Product
An intellectual product can be defined as the creation of the mind. Examples of this include inventions, literary and artistic works, designs, symbols, and images used as trademarks. It can also be defined as a collection of intangible assets legally protected from external use or application.
These two definitions may serve as a starting point for understanding the distinction between what we consider an intellectual product and other types of products. The activity that results in the creation of an intellectual product is a mental, intangible activity, even if it is accompanied by physical activity in some way. For example, a novelist needs to exert muscular effort and use tools to write or record a novel. However, the activity involved in creating an intellectual product remains separate from any physical effort accompanying it.
An intellectual product cannot be transferred from one person to another in its intangible, mental form. Accordingly, it cannot achieve any impact on its existence unless through a material medium, whether this medium is a tangible physical thing or a process that reproduces this product in one way or another.
In particular, earning revenues due to leveraging an intellectual product requires it to be embodied or transformed from an intangible idea into a tangible, material form that can be circulated so it can be sold and bought. The most obvious example of this is written literary works, which can only achieve revenues by printing them in hard copy (paper form) or by publishing and selling digital copies.
In all cases, what can be sold is not the intellectual product itself but the opportunity to access it in one way or another. In many cases, the process of providing access to an intellectual product is extremely complex and expensive. In other cases, this process requires adding creative effort, which in itself represents an intellectual product.
For example, a poem can be made accessible by printing and publishing it, but it can also be made accessible by composing a melody and performing it as a song. In this case, the melody and the performance are additional intellectual products.
Between Moral and Material Rights
An intellectual product represents a personal or collective achievement that reflects the uniqueness of its creator or creators. Typically, an intellectual product deserves moral recognition, which represents social capital. This moral aspect of the intellectual product relies on associating the creator’s name with it. Therefore, attributing the intellectual product to its creator holds significant value, which the creator seeks to protect.
On the other hand, the creator of any intellectual product has the right to seek a financial return that compensates for the time and effort invested in creating it. An intellectual product needs to undergo processes that transform it into a form the end user can access. For example, cinematic work begins as an initial idea, goes through stages such as scriptwriting before being produced, and ends with its screening in cinemas or streaming online.
There is an intermediate process with material costs provided by investors who expect a substantial return on their investment. Unlike traditional industrial processes, in which the manufactured product itself guarantees a return on its sale, the return on leveraging an intellectual product can only be guaranteed by monopolizing the right to leverage it.
Therefore, there are three types of rights related to the intellectual product:
- The moral rights of the creator.
- The material rights of the creator.
- The material rights of intermediaries who facilitate the end user’s access to the intellectual product.
These rights require external guarantees as they are vulnerable to various forms of infringement. Moral rights are susceptible to plagiarism, attributing the intellectual product to someone other than its creator. The material rights of the original creator are susceptible to infringement by exploiting their intellectual product without providing them with financial compensation. Similarly, the material rights of intermediaries are vulnerable to infringement through copying and distributing the material forms of the intellectual product by another party.
Forms of Intellectual Properties
The various forms of intellectual products differ significantly from one another. Moreover, recognizing these forms has evolved alongside the evolution of human societies. While the creators of written texts gained the right to exclusive attribution early on, visual art took longer time for artists to gain recognition and have their works attributed to them.
Also, inventions and applied designs required specific social changes before their creators could have the right to be acknowledged and attributed with full credit exclusive to them. Two primary forms of intellectual property are most common. The first is copyright, which typically applies to written works, and the second is patents, which pertain to technological applications, designs, process blueprints, and similar creations.
Intellectual Property Protection Laws
The earliest instances of state intervention to protect intellectual property date back to the Renaissance. This period witnessed the invention of the printing press and the initial development of technology in various industrial fields beyond the traditional frameworks that had prevailed in earlier eras.
Intellectual property protection laws have evolved over time due to the efforts of various parties involved in the processes necessary to transition an intellectual product from its inception to what can be considered the end-user or consumer. Creators have sought to ensure that intellectual property protection laws adequately safeguard their moral rights, a consideration overlooked in the early practices of intellectual property protection.
On the other hand, state and civil society organizations have sometimes represented the public interest by advocating for broader access to intellectual products. This stems from the positive impact on society resulting from individuals’ ability to access intellectual works.
This has resulted in the emergence of the statute of limitations, after a specified period, during which any party can access the intellectual product or provide access to others without facing legal accountability or being obliged to pay for this access.
Intellectual property protection laws can be viewed as the legal tool imposing an acceptable balance between parties interested in providing access to intellectual products. These parties are:
- Creators: The originators of the intellectual product in its initial, intangible form.
- Intermediaries: Entities responsible for facilitating access to the intellectual product, such as publishers, producers, and distributors.
- The Public: The ultimate consumers of intellectual products, representing the broader public interest and the right to access information, both as individuals and as a society.
Intellectual property protection laws have remained subject to tension among these parties for centuries and continue to be so to this day. It cannot be said that these laws have achieved a fair balance; instead, they have served the interests of the most powerful or influential parties.
Therefore, it is not an exaggeration to state that the party that has always benefited the most from intellectual property protection laws has been, and continues to be, representatives of the publishing and artistic production industries.
Far from these parties, the original creators of intellectual works have received acceptable protection for their moral rights. However, their fair share of material returns has often been left to market forces, which are, in most cases, not in their favor. Ultimately, the rights of the end-user or consumer and the public interest, represented by the right to access information, have not received meaningful protection.
The Impact of Digital Space on Accessing Information and Intellectual Property Rights
The Digital Product and the Disruption of the Traditional Production Cycle
Computers have provided immense inherent capabilities for processing data and information. However, these capabilities could not have been fully leveraged without the software that performs the actual processing tasks. Software thus became a tool of significant functional value, which inevitably led to efforts to transform this functional value into a source of profit generation.
Establishing a profitable software industry required resorting to intellectual property laws to ensure exclusive rights over the publication and use of software. Patent laws were employed for this purpose because software is used for various purposes that do not fit the direct consumption model.
Specifically, the patent model was chosen because it allows the end user’s rights to be governed by a license that restricts these rights. For instance, this license typically prohibits the user from republishing the software or attempting to modify it.
From the beginning, the digital nature of software has revealed significant contradictions with the possibility of applying intellectual property laws to it. Ultimately, these laws were designed to be applied to products that reach their end users in a material, tangible form that usually can not be copied or modified.
In contrast, digital products, especially software, can be easily copied and modified using the same tools used to operate them, namely computers. Therefore, the gap between imposing intellectual property protection laws on digital products and implementing these laws has always been wide.
On the other hand, digital products have revealed a more significant contradiction. In the case of ordinary goods, there is a clear connection between the production process and achieving revenues from selling the final product. For example, a chair factory produces a certain number of chairs each year. There is a precise cost of producing this number of chairs from which the cost of each chair can be determined. By adding a profit margin to the cost, the wholesale price of these chairs can be determined, as well as the retail price for the end user.
This is not the case with software or any other digital product. While there are undoubtedly costs associated with developing software, the final product is not limited to a finite number of units that are depleted upon sale. Instead, the final product is digital, meaning it can be replicated endlessly.
In essence, the production of a digital product entails a fixed cost but yields an unlimited number of units that are not exhausted through distribution. Moreover, unlike traditional commodities, digital products are not consumable. While physical goods are subject to wear and tear or depletion through use, digital products remain unchanged and can be utilized with consistent efficiency indefinitely.
This difference between a digital product and a traditional commodity is very important. It breaks the traditional model of production on which the concept of trading in the market is based and how the price of any good is determined according to the principle of supply and demand. This principle is explicitly based on the fact that any commodity can only be available in a limited quantity at any given time.
The demand for any commodity represents competition to obtain a share of this limited quantity. The intensity of this competition determines the (fair) price of the commodity. Commodities available in small quantities with high demand will have higher prices, and vice versa.
So, how can this be applied to digital products? More specifically, how can a (fair) price for a digital product be determined if we treat it as a traditional commodity? The truth, of course, is that this is impossible. Theoretically, the production process of any digital product can provide the required quantity at any time without incurring significant additional costs.
The cost of providing software to 100 users is hardly different from providing it to 1,000 or even 1 million users, especially if users download the software online. This means that pricing a digital product is left to its producer’s discretion. While the price may be determined based on the cost, the number of copies expected to be sold, infrastructure costs, ongoing development, and maintenance, it does not truly adhere to the principle of supply and demand. Making a profit in digital product marketing depends entirely on monopolizing the rights to sell them and restricting users’ rights to copy them.
Restricting the Rights of a Digital Product User
Technology companies use patent and trademark protection laws to ensure they can make the highest possible profits from producing software and other digital products. This means that the end user of these products only acquires the right to use the product without fully owning it.
This clearly contradicts the idea that digital products are subject to the marketing mechanisms of traditional commodities. However, this is not the only contradiction, nor the most important one. Restricting digital product users’ rights has numerous implications. The first right software licenses restrict is access to the software’s source code. Technology companies treat the source code as the original design of the software and thus subject it to trade secret protection. However, this is not true at all.
The source code is, in fact, one of the forms in which software exists, not a blueprint for reproducing it. More specifically, the source code is the software in a form that can be read and understood by humans. In contrast, the final form of the software consists of instructions in a language understood only by machines.
Therefore, the source code is essential for understanding how the software performs its functions and identifying errors that might cause functional issues or various types of harm. Such harm includes the loss or corruption of data processed by the software or security vulnerabilities that expose user’s personal data to the risk of unauthorized access.
The risks posed by defective software or any other digital product that may contain an executable code on a user’s computer differ significantly from those posed by defects in traditional commodities. Software and digital products are far more susceptible to errors and issues than any other product.
Identifying defects and issues in software and digital products is far more difficult, and finding the defect without the source code is impossible. Because the user’s right to access the source code is restricted, and releasing it outside the producing company is strictly prohibited, addressing defects and issues remains limited to that company’s resources and is subject to its internal policies and processes.
Furthermore, acquiring closed-source software essentially requires users to place blind faith in the producing company and its intentions. In other words, the company producing closed-source software asks its users to believe that it is keen on and trustworthy of their interests, data security, and device safety—without providing the ability to independently verify these claims or have them audited by a third party.
Additionally, restricting the user’s right to access the source code of the software they purchased violates their right to access information. One fundamental definition of this right is the ability of individuals and groups to access information that concerns their interests and security.
This right is precisely what obliges the producer of any product to provide buyers with all relevant information about its safe use and potential defects. In the case of software and digital products, this information is only fully available in the source code.
The Concept of Piracy and the Attempts of Combating It
The use of the term “piracy” to refer to the violation of exclusive rights to access intellectual products predates the advent of digital technologies. The concept became particularly widespread with the emergence of the Internet and the rise of websites and networks that provide access to software and various intellectual products outside the restrictions of exclusive publishing and distribution rights.
It can be said that the history of intellectual property protection laws trying to keep up with technological advancements before digital technology was never entirely successful. However, these laws managed to maintain a balance in favor of the profits of publishers and producers. This has not been the case with the developments in digital technology. This is due to the unique features of digital technology. It is also attributed to another factor brought about by digital technology and the Internet: the emergence of technology companies as a new party in the equation.
What distinguishes big tech companies is their reliance on a business model fundamentally different from the traditional model of producing and trading goods. Specifically, tech companies’ business models do not rely on producing and selling a product. Instead, they focus on attracting an audience of users to their services and then selling access to these users.
The most prominent example of attempts to extend and develop traditional intellectual property protection laws to cover the Internet was the attempt to pass two bills in the U.S. Congress in 2012. The two laws were the “Stop Online Piracy Act” (SOPA) and the “Protect Intellectual Property Act” (PIPA).
The two bills stipulated strict measures against websites where users shared content protected by intellectual property laws. These measures included blocking and shutting down such websites, as well as imposing fines on the companies managing them. The legal texts also included prison sentences for specific criminalized actions.
The two proposed laws faced fierce opposition, not only from internet users who organized protests against them but also from many big tech companies and websites. The largest manifestation of opposition to the bills was the “blackout” (shutdown) of many websites, which was accompanied by large protests on January 18, 2012. This ultimately led to freezing the bills, preventing them from becoming laws.
The Development of Digital Product Licensing
Digital technology has developed a new type of intellectual product: software. Software is considered a form of innovation or practical invention, protected under patent laws and governed by trademark laws regarding redistribution. Based on this, the license the end user receives upon purchase governs their rights to the software.
These licenses prohibited the end user from utilizing the software beyond the limits of direct use. Specifically, they forbade users from copying or installing the software on more devices than the number specified in the license. Additionally, traditional licenses did not grant users access to the software’s source code, thereby preventing them from modifying it in any way.
These restrictions cannot be justified by the fair right of the producer to obtain an adequate return for their product. They also violate the user’s rights, particularly the right to access essential information necessary for safeguarding their interests and security.
Movements such as Open-Source Software and Free Software emerged as a counterforce to these restrictions, the harm they cause to ordinary users, and the development of the software industry as a whole. The Free and Open Source Software movements have created the need for new forms of software licenses that preserve the moral rights of the original developer of the software while providing further rights to the end user. Foremost among these rights are the rights to access the software’s source code, modify it, and redistribute it after making modifications.
The first and most famous model of free software licenses is the General Public License (GPL), the first version of which was written by programmer and activist Richard Stallman in 1989. In addition to evolving this license with the release of new versions, many other free software licenses have been introduced for various intellectual products.
These licenses vary in terms of the rights they grant to both the owner and the end user of the original intellectual product. Creative Commons licenses are considered the most comprehensive model for distributing intellectual products in the public domain.
Achieving Balance in a Digital World
The Impact of the Traditional Legal Approach on the Right to Access Information
The relationship between traditional intellectual property protection laws and the right to access information has always been contradictory. This contradiction remained largely latent before the advent of digital technologies and the revolution they brought in terms of copying, storing, modifying, and transferring data and information.
In essence, the practical barriers to the free exchange of information have historically overshadowed any potential impact of intellectual property laws on the right to access information. Ultimately, the unavoidable financial costs were the primary obstacle to open access to intellectual products. This reality has shaped the prevailing perceptions of intellectual products as commodities similar to any other one, where accessing them requires the provider to earn profits that would incentivize their production.
The advent of digital technology has decisively changed this landscape. Digital technology provides ways to access intellectual products at a much lower cost than before. But more importantly, these developments revealed the fundamentally different nature of intellectual products compared to traditional commodities. Technology has shifted the balance of power in intellectual property, giving more prominence to both the original creator and the end user. This shift has come at the expense of the intermediaries who traditionally controlled access to intellectual products.
This shift in the production and consumption dynamics of intellectual property highlights the bias within current intellectual property laws, which often favor the interests of intermediaries over those of creators and the public.
The unique nature of the digital product adds a third dimension to the picture. As discussed earlier in this paper, digital products disrupt the traditional mechanism of supply and demand, on which the fair pricing of traditional goods is supposed to be based. With the increasing availability of intellectual property in digital formats, the characteristics of digital products, such as software, extend to digital representations of all forms of intellectual property.
These digital representations are non-consumable and infinitely replicable. Applying traditional intellectual property laws to these digital formats inadvertently protects unjust monopolies. It restricts individuals’ and society’s rights to access information, albeit in a different manner than in the case of software.
This deprives individuals and society of the informational openness made possible by digital technology. It also hinders individuals’ free access to information that enables them to learn, acquire skills, foster self-development, and improve their lives.
Furthermore, it denies society the potential for progress by restricting a more significant portion of its members from accessing the necessary information to create knowledge and benefit their community. Ultimately, this prioritizes rights holders’ profit motives over the fundamental right to access information, enabling them to generate substantial revenue without a clear link to actual costs or limitations on their pricing discretion.
Unconventional Approaches of Governments and Private Sectors
Some governments today recognize the importance of providing broader access to information for their citizens. They aim to achieve this through various projects and initiatives.
Some of these initiatives include contracting with specific publishing entities, such as major scientific journals, to provide citizens of these countries with free access to certain online materials. One example of these initiatives is providing access to the content of scientific journals through the Knowledge Bank project offered by the Egyptian government.
Some governments that provide funding for intellectual products may offer free access to them. A model of this approach was announced by the administration of U.S. President Joe Biden in 2022, which stated that all research papers funded by the U.S. government would be freely available upon publication by any entity by the end of 2025.
Numerous private sector entities in publishing and artistic production also offer open access—either fully and permanently or partially and temporarily—to some of their content through their websites. This access can be limited to specific types of content or restricted by access levels for free accounts. Similarly, many technology companies have embraced open-source software development for specific products to leverage this model’s benefits and opportunities.
While these approaches may appear unconventional because they provide access beyond purely commercial exchange, they ultimately remain within the traditional framework that prioritizes the profits of rights holders.
These approaches provide an alternative to illegally obtaining access to intellectual products. They often provide companies with adequate financial compensation, helping them maintain their profits. At the same time, these approaches are often presented as evidence that a balance can be achieved between traditional profit models and broader access to information, deflecting calls for more radical alternatives to ensure genuine open access to digital and intellectual content.
Collaborative Solutions Approaches
The continuous development of digital technology over time provides more ways to change the traditional paths of intellectual property production, access, and utilization. Facilitating and simplifying production processes for many forms of intellectual products allows the original creator to present their product in a format from which others can benefit.
Simultaneously, diverse licensing options allow creators to retain attribution rights while making their work accessible without undue restrictions. Online platforms further enable widespread dissemination and access to intellectual products. These factors, among others, pave the way for developing alternative models for producing and utilizing intellectual property. In many cases, it is particularly possible to eliminate the role of intermediaries between the original creator and the end user.
The open-source software movement has produced a highly successful model of collaborative production. Many of the most widely used and important software today rely on collaborative mechanisms for their ongoing development and updates. The most prominent example is the core of the Linux operating system, around which various system versions are built. These versions also consist of many open-source software applications developed through an open, collaborative process. This model can be extended to the digital production processes of intellectual products other than software and applies to many cases of research collaboration.
Collaborative solutions also offer alternative funding mechanisms for intellectual products that bypass traditional intermediaries. Creators can receive financial support directly, either through crowdfunding, pre-orders, or patronage models, compensating them for their time and effort. Alternatively, they can benefit from in-kind support, such as assistance with preparing their work for final distribution.
By embracing these alternative models, creators can secure sustainable incomes while making their work more widely accessible and affordable than reliance on traditional intermediaries would allow.
Conclusion
This paper bases its argument on the implications of applying traditional intellectual property laws to both general intellectual products and digital creations. It has sought to demonstrate the inherent contradictions arising from applying these laws to software and digital products, arguing that such application infringes upon the fundamental right to access information.
The paper extended this understanding to include general digital forms of intellectual products. Ultimately, it highlighted the possibility of generalizing the approaches created by the free and open-source software movements to digital forms of intellectual products.
The paper’s argument has been built cumulatively across its three sections. Firstly, it provided a foundational background for discussing key concepts. Secondly, it presented the transformative impact of digital technologies on the production and accessibility of intellectual products. Finally, it compared three approaches—traditional, semi-traditional, and collaborative—emphasizing the need to favor the latter as the most conducive to achieving an equitable balance between protecting intellectual property rights and upholding the right to access information.