The Purpose of Regulatory Legislation: To Maximize Total Social Wealth

The purpose of any regulatory Law is to ensure that the markets or activities it regulates maximize society value under the current (and preferably future) conditions of society, not to guarantee special benefits to a reduced group of society members or to perpetuate regulations that no longer respond to current society conditions.

Society Has Changed

Our current reality is quite different from the no-longer existing conditions that gave birth to the existing legal framework that defines today's Intellectual Property Law and justified the need for it. It is not just that teenagers and average citizens can duplicate and distribute content easily and are doing so. There is a deeper change going on here: The ability and capabilities available to society as a whole. Given the changes brought by the Information Society to the distribution and exchange of content we need to go back and redefine the very role of intellectual property in maximizing total wealth for our society.

The Current State of the Law

The Law as it is right now is the result of intensive and expensive lobby from multinational corporations and decisions made in closed rooms and courts, not the result of an open debate and participative process where people can express their stand on "morality" or legal impositions. In the past, patents were awarded for 5 to 15 years to inventors. And under such a regime we were able to invent a way to deliver electricity, invent the telephone, airplanes, the printed press, vaccines and all those remarkable human milestones that changed our world. How is it that today, in a world that changes so fast and new things become old quickly and were we have so much inequalities we can defend 75 year patents and even protection of 60 years after the death of the inventor?

The Nature of Current Legislation

Existing legislation was built to protect a distribution scheme defined and built during long gone conditions where society could not easily, freely and inexpensively replicate and distribute content. Enforcing it does not "maximize total wealth" but to the very contrary it's an act of legitimizing unfair wealth distribution and not taking advantages of the resources available to society as a whole to maximize this elusive notion of total wealth. In the past, there was an intrinsic value to society of a limited and organized number of institutions and corporations to be in charge of the distribution of content, culture and intellectual property. It was then justifiable for these entities to charge for their services and perhaps even to control activities outside their realm in order to maximize total wealth. These entities did large investments on distribution channels and on the format of the content produced that went beyond the mere production process. But in a new world where instant distribution is available to anyone with access to a network, they bring no additional value to the "total wealth" maximization equation. The protection of their role in the content and knowledge production and dissemination process should now be limited to the production process, a process in which they can still bring great value to society. But society is better served by open and "distributed" distribution of content, knowledge and culture, rather than it being controlled and taxed by a limited number of entities. If we, as a society are not able to transform our structures to take advantage of the huge potential information technologies provide us just because age-old structures, powers and interests are able to twist and manipulate a legal system, then we are in for a long struggle for human development and digital human rights for all.

Negative Impact of Current Legislation

The media markets are adjusting as is obvious by consumers activities and capabilities. But the current market and legal structures do not provide the best value to society. The current legal framework makes the market highly inefficient, generating artificial and unfair advantages and inequalities. Changes need to take place, for the current models and regulations favor a few -- not just the few that generate content, but a very tiny group among them. In addition, the current legal framework imposes great limitations not only on creativity and cultural activities, but on preserving our culture. Creativity is being constrained, not stimulated and content is not being properly preserved or archived because of the limitations the current restrictive Intellectual Property framework imposes.

The Role of Legislation and Regulation

From a social and humanitarian point of view, there is no justification to restricting access to any form of knowledge created by the human race, for all content is based on knowledge from others. The goal of society should be to provide the broadest access possible to content and knowledge for all its citizens. However, compensation of content generation, stimulation of creation and innovation, as well as distribution and archiving of content and knowledge, they all involve more than regulation and good will.

The Goal and Focus of Legislation

The current intellectual property regulatory framework works against the free, open and unbiased growth, preservation, generation and evolution of culture. The goal of intellectual property legislation and regulation should be to maximize the level of unrestricted personal and community access to content and knowledge, while ensuring proper compensation for content creation and stimulation for innovation. And given the fact that we are in a paradigm-shift and transition period, legislation should focus in eliminating the artificial distortions created by the existing policies and replace them with a regulatory framework more adequate to society's current reality and the welfare and best interest of all of its members. There should be no special treatment of protection of intermediaries in the content production and distribution process, and their existence or presence should be determined exclusively by market forces and not by special regulatory conditions. A framework flexible enough should be provided that prevents plagiarism and uncompensated commercial exploitation of intellectual and content creations and supports intellectual property and recognition of content ownership without limiting the access of individuals and communities to content and knowledge