Intellectual Property, Business Models and the Digital Domain: A Survey

Prof. Prashant Kulkarni1

With the internet and the accompanying digital revolution challenging the conventional industrial information structure, relationship between various dominant actors stands redefined. Intellectual Property Rights, as originally conceived and subsequently enforced, seems incompatible with the digital business models. Therefore we do see legal battles over what seems on face of it trivial issues. A situation is being resulted where societies priding themselves on free expression and creativity, actually are ending up stifling it. The current paper traces the growth of the digital revolutions, changes in the industry and product structures and surveys the alternative models that safeguard innovator interests and encourages creativity.

The effective functioning of the economic activities necessitates the presence of rules and enforcements. The market, with its obvious inabilities to create these rules and enforcements depends upon the government legislation for enactment and enforcement of these rights. Property rights and contractual rights deemed minimum prerequisites to be provided by the state, delineate the sphere of private domain wherein both private institutions and individuals interact with one another. Further, the state is saddled with the responsibility of providing political rights and social rights to its citizens. Internet and the accompanying digital revolution present a challenge to contemporary notions of business, politics and society. Dominant market positions were often achieved through innovations in the product markets. The shift from the production patterns of the industrial economy towards the customized production of the information society has created a dent in the ability of the private corporations to set the agenda for the civil society and the governments. Over 70% of the wealth accumulated in the rich economies is in the form of intangible, knowledge based assets (Gelder 2006). Improvements in quality and productivity accompanied by decreasing costs reiterate the human dependence on the knowledge economy. Access to information remains the preserve of neither the state nor the corporation. The complex relation that has evolved between business strategies,
1

Asst. Professor, Economics and International Business, Indus Business Academy, Bangalore. The author can be contacted at prashantkulkarni@rediffmail.com

government regulations, and non government organizations in the information era has profound implications. In popular perception, US have recrafted the rules of the global trade reinforcing the earlier arguments of US shaping up the international order using its privileged position of first mover advantage. Description and tales of Western ignorance vividly described in the colonial literature2, invisibility and neglect of life and death in Africa gets reinforced when we seek to understand the Western response to AIDS crisis in Africa3. Since it began two and half decades ago, the pandemic has claimed more than 22 million lives, of which more than 70% in sub-Saharan Africa alone. In comparison, the death rate because of AIDS in the Western world is showing a decrease because of the availability of life prolonging drugs. The anti retroviral therapies are pretty expensive and beyond the reach of citizens in Africa who survive on one or two dollars a day. Drug prices remain high on account of the patent laws that prevail in the Western world. The pharmaceutical companies have sought to take patents on all aspects of the compound, including the compound itself, dosage methods and processes of making it. The whole idea of patent protection is to encourage innovation but the protection lasts well beyond the term of any single patent and keeps cheaper generic manufacturers out of the market for as long as possible. Moreover it is often observed that patent monopoly and thus high drug prices in developing world results in selling smaller numbers of expensive medicines to a wealthy class, rather than trying to distribute large numbers of cheap medicines at a few cents a day to the many poor4. TRIPS are one of the most important documents signed on intellectual property over the last century or so. In setting minimum standards in copyright, trademarks, geographical indications, industrial designs and layout-designs of integrated circuits, TRIPS explicitly recognized knowledge as a private good rather than a public good. Further, it rolled out a process of globalizing and standardizing the set of intellectual property principles it contains. TRIPS aims at influencing states in providing effective protection to digital technology and biotechnology and thus the process for transfer of control of these resources to the private corporations that have enormous resources at their disposal. With the US being the largest

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See among others, the writings of George Orwell Strong arguments can be found in Drahos and Braithwaite (2002), Information Feudalism: Who Owns the Knowledge Economy, Earthscan Publishing 4 The decision of the Mandela regime to allow parallel imports became a trade dispute between US administration and South Africa. European governments and the US both publicly and privately lobbied for removal of this restriction. The provisions of TRIPS were quoted to allow patents to function without what the companies described as discrimination. However the litigation that pharmaceutical companies wanted to pursue was withdrawn and matter settled due to public pressure.

net exporter of intellectual property in the world, TRIPS effectively leads to increased concentration of power with the leading American corporations5. Violations often result in severe consequences6.

IP Literature and Traditional Business Models

Discourses in Intellectual Property, grounded either in sociological or legal foundations rests on certain assumptions, all open to questioning. The first assumption is premised on the argument that socially and juridicially the system is sound. Given the system is sound; it will work well in the future too and thus independent of the specifics of time and place. Finally, IP Literature assumes the existence or possibility of other alternatives7. Arguments favoring a balance between right holders limited-term monopoly and public benefit of unhindered access to scientific records and cultural traditions ignore a key fact that the rights do not reside with the creators but are owned by publishers and media corporations. Secondly copyright products increasingly are going digital. Digitization makes possible for a vendor to restrict the access of his products. A user can reproduce the goods immediately, infinitely and at zero marginal costs. Todays battlefield in the IP domain being fought courtrooms and media and the society is resolving these conflicting tendencies of producer and user rights. A cursory glance at digital expansion will place these battles in a clear light. The penetration of internet was swifter than what even its most enthusiastic supporters expected it to be. Private actors though play dominant role, the governments continue to rule the internet. While the cross border regulations have weakened and cross border flows have been liberalized, the governments continue to assert their authority over cyberspace to defend the pre-internet era interests and functions. Internet governance has led to a consensus driven global rule-making. Individual governments have asserted authority, often incompatible with the global realities and domestically rooted solutions have been advanced globally. Moreover, the asserting of the authority through the extraterritorial
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Nakamura (2003) shows that private US firms invest at least one trillion US dollars a year in intangible assets and that the market value of the USs capital stock of intangible assets is at least 5 trillion US dollars. 6 Tower publications dominated the text book market in South Korea. They reproduced tens of thousands of American text books with little or no royalty payments and license fees to the original American publishers. With the US text books expensive and beyond the reach of many students, the story is familiar across Asia. In this instance however the US authorities converted into a trade dispute and pressurized the South Korean government to close down Tower publications. Its founder was jailed sending shockwaves in Seoul and effectively closed down the reproduction market for text books and other publications. Further arguments and implications found in in Joe Karaganis (Ed) (2007), Structure of Participation in Digital Culture, Social Science Research Council 7 A detailed analysis on the merits and demerits of these arguments are found in The Copy/ South Dossier (Alan North eds.) Copy/South Research Group, 2006

application of domestic rules adds an element of complexity.

Even both the US and European

authorities are divided on the mode of approach towards responding to the digital challenges8. Online commerce and communication are perceived to be relatively frictionless. However the interlocking systems of regulating information follow enforced by the national governments contradicts this perception (Cohen 2002). Yet, the digital network technologies lead to considerable reduction in costs associated with the traditional offline transactions. Profit, being the essence of any information entrepreneur, evolves from the presence of frication in online commerce. The regime of intellectual property rights is widely believed to create this friction by allowing proprietary control over access to information. Further the belief that it will leverage that control to enforce a broad range of restrictions on information usenot only by copyists and other free riders, but also by citizens, consumers, critics, and legitimate competitors can reshape the ways in which online interaction is structured reinforces the earlier argument. The production and exchange of information, knowledge and culture have depended on the principles of industrial information economy9 for the last two hundred years. However, the growth and spread of information technology has resulted in structural shift in the way information is produced, organized and exchanged. These shifts permeating through the society have the potential to transform the control of information and knowledge from the complex organizations to the citizens, consumers and autonomous individuals of cultural, social and political groups (Benkler 2006). These changes have been accompanied by the new opportunities in the production and marketing of information, knowledge, and culture. There is a shift in the dominance of the market and proprietary production towards non market and non proprietary production, both by individuals alone and by cooperative efforts in a wide range of loosely or tightly woven collaborations. These newly emerging practices are reported from diverse areas as software development and investigative reporting, avantgarde video and multiplayer online games. Instances can be cited from Wikipedia to Gigapedia to Napster to Linux to P2P networks among other examples. They signal the first steps in an information order presenting a greater freedom to individuals in decision making in the information economy.

While the European authorities more favor a stricter approach towards internet, US favor the market based approach. Knowledge based industries in US were successful in lobbying the US administration to create a new regime for Intellectual Property Rights (IPRs) namely the TRIPS. The regime was supposed to consolidate the position of the US industries like pharmaceutical, biotechnology, software, entertainment among others. However the going for these businesses is not smooth in the digitized world. 9 The term introduced by Yochlai Benkler (2006). Refer Benkler, Y. The Wealth of Networks, Yale University Press

Threatened by the emergence of individual and cooperative non market production of information and culture, the order established by the industrial information economy is beginning a series of battles to protect its turf. The redistribution of property rights into the hands of few private corporations and media conglomerates place them in the central command of the marketing resulting in asymmetry in the market competition. It further compromises on the liberty of scientific and social which is in the hands of individual scientists. The direction and outcome these produce over the next few years are likely have a significant effect on how we come to know what is going on in the world we occupy, besides the degree and extent of that control in the hands of autonomous individuals and participants in cultures and communities (Benkler 2006). The ease with which the digital content can be downloaded, created, modified and distributed has destabilized the traditional business models. New business models revolving around new distribution networks have emerged. Chris Anderson (2005) introduces the term Long Tail10 for this model which has been adopted successfully by Amazon. In the traditional brick and mortar model, in a situation of high degree of choice, a large population of customers and negligible stocking and distribution costs results in a selection and buying pattern that reflects a power law distribution curve, or Pareto distribution, instead of the expected normal distribution curve. A natural inference is the creation of certain degree of inequality by favoring the upper 20% of the items ("hits" or "head") against the other 80% ("non-hits" or "long tail"). The logic is however inverted in the click and mortar model. Anderson rests his case on the premise that products that are in low demand or have low sales volume collectively make up a market share that rivals or exceeds the relatively few current bestsellers and blockbusters. This is possible in a scenario where the store or distribution channel is large enough. No matter the decrease in stocking and distribution costs, the physical space acts as a hindrance in storing large stock of items at a given place. Conversely the digitization of content results in near infinite storage of material with almost zero marginal costs. He finds support in research by Brynjolfsson and others which show a significant portion of Amazon.com's sales coming from obscure books which are generally not available in brickand-mortar stores11. Alternatives in the Digital Domain

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Chris Anderson, (2005), The Long Tail: Why the Future of Business is Selling Less of More, Hyperion Publishing A similar case is of Netflix whose analysis of movie rentals show that the total volume of low popularity items exceeds the volume of high popularity items.

Before examining the alternatives, an understanding of the characteristics of digital goods will facilitate the grasp of economics of digital goods. Danny Quah (2002) demonstrates five characteristics of the digital goods. Digital goods are nonrival, infinitely expansible, discrete, aspatial, and recombinant. Non rivalry indicates an use by one agent will not degrades it value and utility to another agent12. To Quah, a good is infinitely expansible when it can be produced in large numbers at zero marginal costs. Digital music and images, being produced in large numbers at zero costs and free redistribution over the internet, easily send the music companies into a state of apprehensive excitement13. Digital goods being discrete imply an indivisibility of the goods. Since the digital goods are not available as fractions, the significance rests in the instantiation of the goods. However the production of the first copy requires considerable investment. Further digital goods, being aspatial, are nowhere and everywhere at the same time. Recombinant in essence means the production of new digital goods by merging antecedents and further having features absent in the original, parent digital goods. Modern IPR law was not designed keeping the digital goods in mind. Copyright laws have applied not to the underlying ideas but the expression of the idea. In a competitive market, the price of digital goods would equal its marginal costs and thus zero. Tensions and tradeoffs result when a conflict emerges between individual reward and social distributional efficiency. In resolving these tensions, give the nature and properties of the goods, the author presents two alternative models from literature. InnoCentive is an "open innovation" company which opens research and development problems to the general public for solutions. It gives cash awards for the best solutions to solvers who meet the challenge criteria. The phenomenon known popularly as crowdsourcing serves as an example for marrying open source principles with scientific R&D projects. As opposed to the outsourcing which involves delegating the work to a company, crowdsourcing involves assigning the work to an undefined, generally large group of people, in the form of an open call. Similar examples exist across the domain. Each of these similar examples represents a business model that the firms have leveraged to flourish.

Intellectual Property is related to Business Models

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Quah argues the excludability is ancillary to the fact that good is rival or non rival. To him, it arises from law or from technology or from both but will not itself be intrinsic to digital goods. For further analysis read Danny Quah (2002), Digital Goods and New Economy, LSE Economics Department, http://econ.lse.ac.uk/staff/dquah/ 13 For historical analysis of non rivalry and infinitely expansible goods, see the writings of Thomas Jefferson.

Chesbrough (2003, 2006, and 2007) locates the business model as an intersection and interaction of value creation and value capture14. Chesbrough finds that firms utilize only 5-25% of their patented technologies. He attributes this to the inefficiencies of the innovation market. With the costs of development of technologies being high and potential value of those goods being difficult to determine, it is unsurprising to find these technologies dormant. This is a consequence of a firms inability to charter unmarked terrains requiring an unfamiliar configuration of assets, resources and positioning. Firms tend to stick on with known patterns and ideas that fit with these patterns often get promoted. Therefore a question arises about the intellectual property generated and unutilized. A natural outcome would be to favor the abandonment of innovation by the firm. This gains credence if one observes the cost benefit analysis of product development, design and marketing. To Chesbrough, rising costs of development coupled with shorter product life cycles, investments in innovations are increasingly difficult to be justified15. In a world dominated by these scenarios, IPRs appear paradoxical. A way out as suggested by Chesbrough is the adoption of open business models16. Chesbrough believes that management of Intellectual Property (IP) depends on the innovation paradigm the firm chooses to operate. In a Closed Innovation paradigm, the firm creates its ideas, monetizes them and excludes them from usage by others. Open business Models, on the other hand, recognize the value of ideas being generated outside the boundaries of the firm. If there is no dearth of ideas outside, the firm must leverage those ideas and thus become a buyers and seller of Intellectual property. This leverage is possible if the firms business model is adapted to capitalizing on these paradigms. Using examples ranging from Procter and Gamble, Air Products, IBM among others he demonstrates how firms have leverage their business models in capturing value from other businesses17. He is critical of IP enthusiasts who argue that US companies sit on a gold mine of Intellectual Assets and those assets have an economic value left underutilized. It is not per se the IP has latent economic value but the realization of that value is subject to the business model firm adopts and operates. Technology does not any
14

Value creation refers to a series of activities yielding a new product or a service with value addition at each stage. A firm may enjoy competitive advantage by establishing an unique asset or resource or position within that set of activities and is called as value capture. 15 When Intel decided to build a semi-conductor fabrication layout in Israel, it cost $3 billion. Just twenty years before, its cost would be just around 1% of the current costs. The life cycle of product and thus the shelf life have dramatically fallen. The hard disk drives whose shelf life was 3-6 years now has fallen to a few months. 16 For detailed analysis, Henry Chesbrough, Why companies should adopt open business models, MIT Sloan Management , 2007) 17 Ibid. On the other hand, a classic example of failure to leverage the IP value is Xerox PARC. Forerunner of several products today, PARC failed to leverage the Intellectual assets generated in terms of increased profits for Xerox. See a detailed explanation in Henry Chesbrough, Open Innovation: The New Imperative for Creating and Profiting from Technology, HBS Press, 2003

independent value but is commercialized only the business model used to employ them. Businessdependent value of IP is crucial for its effective utilization and thus the traditional IP literature is myopic when it fails to incorporate this dependence paradigm. Firms must either create a business model to capture the value or let someone elses business model govern the value realizable by innovation.

Piracy is Good and Encourages Creativity

As YouTube, Vimeo among others continue in soar in popularity, amateur creators are increasingly at the receiving end of the lawyers representing leading media firms and conglomerates. The crime of these creators is merely exhibiting their creativity which to Jack Valenti represented a brand of terrorism. Since this new creativity captures or uses the creativity of the old, copyright owners fight back using the copyright legislations to prevent the unauthorized production of expression. Exceptions like Viacom might exist but enough owners have insisted on permission to have touched and hence taint diverse range of creative activities. Lawrence Lessig18 believes that in the war between copyright owners (media and entertainment firms) and peer to peer file sharing activities, amateur creativity has become a collateral damage. To Lessig, the remix creators bring back the culture and tide of amateurism that was once feared to perish in the onslaught of the record players in the early 1900s. He believes the return of this remix culture has the potential to encourage economic growth in the US, and inspire a new model and means of learning for a generation that has no time to read a book but spends scores of hours each week watching, listening and creating new media. He rues the fact the copyright wars in targeting the pirates, criminalize creativity, drives piracy underground and in the long run become corrosive to the economy and the society. Quoting the example of Brazil, he argues that the state by inspiring free culture and free software presents an alternative model to proprietary system currently dominant. The International Intellectual Property Alliance (IIPA) representing the US copyright interests has long argued that the piracy in Brazil costs US industries $1 billion per year. Faced with US pressure to target the pirates, Brazil developed an alternative model19. The first was the adoption of free software. This meant respecting Microsofts rights as also encouraging alternative software models that remain unhindered from copyright laws. Further, a project called Points of Culture (Pontos de Cultura) was started to facilitate establishing free software studios, built with free software, in a thousand towns and villages throughout Brazil. The objective is to enable people in creating culture making use the tools supporting free cultural transmission. The
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Lawrence Lessig, In Defense of Piracy, Wall Street Journal October 11, 2008. Lessig discusses it in detail in Lawrence Lessig, The People Own Ideas, Technology Review, June 2005.

outcome would be an archive of Brazilian music, stored in digital form, and governed by a license inspired by free softwares GPL. The Canto Livre project will free music made in Brazil, for Brazilians (and the world) to remix and re-create. Like free-software project of Stallman and others, it seeks to achieve the freedom on the back of copyright. To achieve this freedom, Lessig suggests five changes to copyright laws retain and foster creativity and amateurism20. The first prescription is to deregulate amateur remix. Digital technologies enable and empower society to create and recreate culture and thus a cultural vitality is maintained. While it is possible that few might profit from others creativity, models can exist to compensate the original creators. Secondly he advocates the deregulation of the copy. He feels the law is obsessed with copy and should instead focus on the uses of the copy like public distribution of the work. Uses rather than copy itself are connected to the economic incentives of the copyright. Further he calls for simplification of the copyright laws invoking the First Amendment. Besides, he argues that copyright, in the present form being inefficient and further trivialized by the advent of technology, there needs to be a inculcated a sense of efficiency and clarity in the ownership of the copyrights. Finally he calls for decriminalizing the copyright act and instead focuses on alternative models that ensure the payment and revenue streams are generated for the creators.

A New Business Model

I conclude the survey by analyzing a business model in the entertainment industry that is successful and also radically altered the dimensions and structure of the music industry. Business modeling process is an outcome of a complex set of interdependencies and interrelations, seeking to balance the often divergent interests of the artists, manufacturers, consumers and technologists in the industry. Apples iTunes represent an attempt to build a viable and sustainable model of online music. Music industry revolves around three processes viz. creation of music, marketing of music and finally distribution of music. In the traditional structure, labels dominated the scene commanding 80-90% of the profits by leveraging their strengths in marketing and distribution. Napster and many other peer to peer softwares altered this structure upsetting the profitability of these labels. Long legal battles ensured the collapse of Napster but could not kill the movement it had started.

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A detailed analysis is found in Lawrence Lessig, Remix, Penguin Press, 2008

To become a key player in digital integration Steve Jobs of Apple saw an opportunity in online music and launched iTunes Music Store. The store lets customers search a catalog of over 700,000 tracks, including music from all five major labels. With one click, users could now purchase the songs and download them into their iTunes music library for $0.99 cents per song and $9.99 per album. Further there were no subscription fees. Moreover, songs were downloaded in digital quality and were allowed to be burned onto CDs for personal use. While it could be played on up to three computers, there were no restrictions as to its usage on portable players such as Apples iPod. Access to the store was embedded in Apples iTunes software which includes a music player, CD ripping and burning tools, an interface to the iPod, free Internet radio stations, and a limited streaming audio feature called Rendezvous21. The success of iTunes ( it reportedly sold one million songs in the first week of its launch) has led to numerous other players in the industry including EMusic, MSN Music and Rhapsody. In a world of DRM, Apple has a found a way of playing by the rules, yet letting the consumers enjoy the autonomy of choice and use and freedom from the legal hassles that have engulfed ordinary music lover.

Conclusions
We are in the midst of change. Digital technologies serve as engines of cultural innovation. Their influence stems from the virtualization of group networks and social identities like Facebook and extends to the digital convergence of textual and audio-visual media. The growth and adoption of electronic commerce gets inter-wined with the development and strengthening of intellectual property legislations. The global nature of internet is evident in the fact that while service providers are located in industrialized world, the benefits are derived across developed and emerging countries alike. Limitations arise for direct command and control mechanisms to flourish. Delegating the regulatory functions depend on the presence of effective stick and carrot policies. Fears that private sector may not enforce the rules and regulations strictly deter the governments from delegating the authority to these bodies. The lack of clarity in the relationship of government and corporation may lead to issues like accountability. This becomes more pronounced when the control systems cut across borders. Technology is per se neutral and all the pillars viz society, government and corporations will make use of it in pursuit of maximization of their goals. Though the search for paths of sustainable development in the global economy seems difficult, a clearer sense of the various ways in which value chains of global
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A detailed discussion of the complex interrelationships in the online music industry and its interplay with the copyright laws can be found in William Fisher III, iTunes: How Copyright, Contract and Technology Shape the Business of Digital Media- A Case Study, Berkman Center for Internet and Society, 2004.

system are administered and evolved will enable the achievement of the desired outcomes. Borrowing from game theory, it is the optimal solution that seems to evade the players as of now. How best they arrive at reconciling and adapting their interests will determine the future of the digital era.

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Freedom, Yale University Press. 19. Henry Farrell, (2006), Regulating Information Flows: States, Private Actors and E-Commerce, Annual Review of Political Science 2006. 9:35374, First published online as a Review in Advance on Feb. 17, 2006 20. Adams, A., (2006), Introduction: Valid Protection or Abusive Control?, International Review of Law, Computers and Technology, Vol. 20, No. 3, pp. 233-237 21. Lessig, L. (2006), Code, Basic Books 22. Nicolla Lucchi, (2006), Digital Media and Intellectual Property: Management of Rights and Consumer Protection in a Comparative Analysis, Springer Publishing 23. Chesbrough, H. (2007), Why Companies Should Have Open Business Models, MIT Sloan Management Review, Winter 24. Joe Karaganis (Ed) (2007), Structure of Participation in Digital Culture, Social Science Research Council 25. David Kravets, (2008) Recording Industry Decries AM-FM Broadcasting as a form of Piracy, http://blog.wired.com/27bstroke6/2008/06/recording-indus.html, Accessed on June 24, 2008 26. Prashant Kulkarni et al (2008), Globalization, Information Economy, Private Corporations and Public Policy: Addressing the Challenges in the Emerging Economies, Presentation at VI AIB International Conference, IIM-Indore, August 11-13 27. Lessig, L. (2008), In Defense of Piracy, Wall Street Journal, October 11, 2008 28. Lessig, L. (2008), Remix, Penguin Publishing 29. www.wipo.int