Starting this week and ending in October, I am visiting researcher at the Social Science Research Center Berlin (WZB). The reason for my stay is a research project on the societal and economic role of the digital public domain, which I am working on together with Jeanette Hofmann. In this context, I started re-reading some of the classic works on the issue, such as David Lange’s “Recognizing the Public Domain” (PDF) from the year 1981.

Photo of Pac Man JohnGiez

Intellectual Property as “a game of conceptual Pac Man”?

While reading through this paper and his assessment of then recent changes in copyright law, several of his conclusions are strikingly similar to the ones made by contemporary copyright critics:

“I will argue that the growth of intellectual property in recent years has been uncontrolled to the point of recklessness.” (p. 147)
“The [copyright] law seemed suddenly to metastasize” (p. 153)
“The field of intellectual property can begin to resemble a game of conceptual Pac Man in which everything in sight is being gobbled up” (p. 156)

Since Lange’s assessments in 1981, however, there have been some of the most fundamental revisions in copyright’s history such as the TRIPS treaty or the subequent WIPO Copyright Treaties and their respective implementation into national law – all further increasing strength and scope of intellectual property rights (for a detailed account of the regulatory changes between 1980 and 2000, see Drahos and Braithwaite 2002).

This leads to the question, whether we are observing a shifting baseline effect in our assessment of intellectual property rights in general and copyright in particular. The concept of shifting baseline is used to describe cases where gradual changes over time lead to substantially different outcomes, which are however not recognized as such by the actors.

According to Wikipedia, the concept was first developed by David Pauly in the context of environmental psychology. In his 1995 article “Anecdotes and the shifting baseline syndrome of fisheries” (PDF), Pauly argues that fisheries scientists sometimes fail to identify the correct “baseline” population size (e.g. how abundant a fish species population was before human exploitation) and thus work with a shifted baseline. Sáenz-Arroyo et al. (2005: 1957; taken from Ortmann 2010) generalized the concept and define it as follows:

“Shifting environmental baselines are inter-generational changes in perception of the state of the environment. As one generation replaces another, people’s perceptions of what is natural change even to the extent that they no longer believe historical anecdotes of past abundance or size of species.”

Returning to Lange’s assessment of copyright, I would argue that we can observe a shifting baseline in the discussion of intellectual property regulation, too. A large proportion of researchers, practitioners and regulators cannot even envision how the much less restrictive intellectual property regimes of the past have worked. In the field of copyright in particular, the perception of what is a “natural” level of protection has changed.