To Waive and Waive Not: Property and Flexibility in the Digital Era: 23rd Annual Horace S. Manges Lecture, April 6, 2010

Merges, Robert P.

Even in an era when creative works can sometimes be made collectively, and where copying and modifying existing works is often easy, individual ownership of discrete creative works still makes sense. Individual creative effort is still the crucial ingredient for many high quality works, and the control conferred by ownership is often the most efficient, and even more frequently the most fair, social arrangement. Even so, a common argument against property rights in the digital era is that they come with a heavy transactional burden. The need to clear permission to use digital works is said to impede the potential of high velocity distribution models and participatory creative efforts. Too many property rights, too many clearance and licensing deals, too much friction in the great digital creativity machine—all stand in the way of progress. There are, broadly speaking, three solutions to the problem. First, society can cut back on the number of property rights, or rework the structure of rights with an eye toward transactional efficiencies. Second, right holders or society in general can invest in rights clearance mechanisms that make it easier for users and consumers of rights-protected works to transact more efficiently. Third, legal rules can be tailored to make it easier for right holders to commit to a binding non-enforcement of their rights. The purpose of this brief Article is to explore in some depth this third option. I begin by describing how waiver contributes to the supple texture of property rights, making it easy for individuals to exercise choices after rights have been granted. This is, in my view, a cornerstone feature of property rights, and one of their chief advantages over other entitlements and incentive regimes. Next, I show how waiver fits with other basic features of property rights. I argue that waiver can be thought of as an aspect of the structure of rights, as well as a (particularly simple) rights clearance mechanism. Finally, I describe some simple ideas that could clarify knotty issues surrounding legal requirements for waiver of intellectual property rights. The most important are: 1) binding, easily verified waiver mechanisms that are "good against the world"; and 2) scope of waiver rules that make it simple for right holders to selectively waive rights, for example, permitting some uses and not others. I conclude with a call for more attention to the waiver strategy as a way of retaining our traditional commitment to property while easing the transactional burden that property rights entail.


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Columbia Journal of Law & the Arts

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July 2, 2012