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Copyright is no longer a means for creative structure but to reproduce content that’s only seen as mainstream, which incentives us to relinquish culture in the name of profit. These copyright holders then sell our senses through semiotic advertisements geared to force us to gorge on capitalistic pleasures of consumption

PESSACH 16, GUY Associate Professor, Hebrew University of Jerusalem; Affiliate Fellow, Information Society Project, Yale Law School. A prior draft of this essay was presented at the McGill University Centre for Intellectual Property Policy (CIPP). I am indebted to Professor Pierre-Emmanuel Moyse the director of the CIPP for hosting me and for excellent insights on the topic of this paper, Fall, 2016 “Beyond IP--The Cost of Free: Informational Capitalism in a Post-IP Era”, Osgoode Hall, Accessed July 3, 2024, PW

Critical copyright scholarship also emphasizes the copyright's role in shaping the political economy of corporate media. 4 Control over the means of production and distribution is gained through a mixture of government-issued entitlements in creative resources (e.g., copyright) and distribution platforms (e.g., telecommunications licenses). 5 Within this framework, the traditional corporate media model is based on producer-consumer relationships and the copyrighting of culture--that is, the commodification of content through proprietary protection. 6 This economic model pivots around the extraction of revenue from the distribution of and provision of access to content. 7 At the same time, a market-oriented media system fails to provide the public with the whole array of media products that the society desires. 8 Media markets tend to produce a wasteful abundance of content that responds to mainstream tastes while neglecting civically, educationally, and culturally pluralistic content. 9 Additionally, [*228] the nature of corporate media as advertising-supported favours media products that have a wide appeal and are suitable for selling the advertised products over media that attends to the diversity of people's actual needs and interests. 10 The emergence of the Internet is perceived by critical copyright scholars as a unique opportunity to significantly improve society's informational and cultural ecology, if only the right regulatory and legal choices are made. 11 In broad strokes, the argument is that new information technologies make it easier for individuals, groups and communities to collaborate in producing and exchanging cultural content, knowledge, and other information goods without requiring the involvement of commercial, profit-motivated media entities. 12 New, cheaper methods of producing, storing, and distributing content provide fertile ground [*229] for the emergence--and constant demonstration of the existence--of enhanced schemes for sustaining culture and knowledge beyond IP. 13 From this perspective, the traditional distributor-centric, proprietary-based cultural and informational industries appear both unjustified and counterproductive in terms of the public interest in cultural diversity, decentralization of media spheres, and individuals' self-fulfillment. It seems only natural that a shift from producer-consumer cultural industries to civically engaged cultural spheres would be feasible, if one could only dissolve the strong attachment of cultural production to intellectual property protection as a governing institution. 14 Critical copyright scholarship does not stop at criticizing the traditional corporate media model, it also offers an alternative model of creative activities that rests upon concepts of free content, free access, and openness. 15 This scholarship shows that there is much to be looked for beyond intellectual property, particularly in light of persuasive evidence and arguments that authors' [*230] and creators' incentives are far more diverse than intellectual property's direct economic incentive. 16 The purpose of this article is to untie the seemingly Gordian knot between proprietary intellectual property protection and capitalist structures of corporate media. I argue that media environments based on free distribution of content are no less vulnerable to corporate market powers. 17 Free content and departure from traditional proprietary intellectual property regimes do not necessarily lead to true, effective freedom for individuals. Recent scholarship in the areas of communications studies and critical Internet studies examines the emergence of a new political economy in which networked information industries are built upon free flow of information and content. 18 This literature describes what many of us experience on a daily basis: a highly concentrated industry in which revenues are extracted mostly from selling advertisements and users' personal data. 19 The scholarship focuses on informational capitalism, which uses data, information and content as means of production and circulation to make profit and accumulate wealth. 20 [*231] The key features of this networked environment include a strong tendency towards selling "eyeballs" (audience attention) to advertisers; utilization of big data; and the use of information flows about consumer behaviour to target advertisements, search results, and other content. 23 Similar such features include stealth advertisement; sophisticated systems of predictive analytics; 24 commodification of consumers' data; 25 and free utilization of content. 26 These features represent a brave new world that is the opposite of what one anticipates when looking beyond intellectual property protection. In such "beyond IP" realms, industrialized corporate structures, media concentration, content biases, abridged creative diversity, and deflated authorial welfare may outweigh the drawbacks of traditional corporate media. 27 A second, related aspect of informational capitalism is its growing dependence on free content and information as elementary means of production. In a political economy that does not extract revenues through the direct commercialization and sale of content, but rather from the commercialization of personal information and users' attention, free content and free information are the main bait for obtaining and monetizing both audience attention and users' personal information. [*232] Spheres beyond intellectual property thus represent a social contradiction between their empowering functions and their vulnerability to exploitation and commodification. Free flow and distribution of content undoubtedly stimulate social conditions that empower individuals, promote innovation, and advance cultural democracy. Yet, at the same time, they provide no safeguards against patterns that imitate the logic and drivers of proprietary cultural industries. In fact, they simultaneously create new opportunities to make profits and accumulate property through the commodification and commercialization of users' attention and personal information. Although the emergence of networked informational capitalism is well addressed in the academic literature, there is hardly any reference to the linkage between networked informational capitalism and components, both legal and ideological, that are derived from and associated with free distribution of content in cultural and informational zones in which intellectual property's governance is less salient. I argue that informational capitalism is linked not only to elements of proprietary control, but also to elements of free flow and non-proprietary modes of content circulation. This argument questions the conventional wisdom of critical copyright scholarship, which tends to pair proprietary protection with informational capitalism and the commodification of culture.

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