Notes upon reflecting on WIPO's decision not to hold a planetary open source projects forum, I'm struck by its connection to a seemingly unrelated event, the rise of a West Bank insurgent p2p operation.
What unites these cases is a common pattern: the action of a national government to protect its country by defensive IP policy. WIPO was successfully lobbied by (among other entities) American proprietary software companies, who argued that WIPO should not even consider open source as it conflicted so drastically with intellectual property - read: those companies' interests. Earthstation5, meanwhile, is given carte blanche by the Palestinian government:
the Palestinian Authority... has propagated copyright rules that protect Palestinian copyrights but don't have strong protections for foreign works...
In both situations national states, one the most powerful in the world, the other one of the weakest, share an interest in defending national IP, at the potential expense of others'.
I would like to hypothesize that we're seeing the emergence of something a bit like classical mercantilism, modified for the digital world. That policy saw national governments fighting for local enterprises in the world market, maximizing exports to bring in money, while minimizing imports of goods. Rather than the state getting out of the way to let the invisible hand do its work, or the state serving transnational operators, the national government identifies with the nation, and acts energetically on its economic leaders' behalf.
This has come up before. IP law has lived for centuries in national legal regimes, while only recently have international agreements been knitted up. Hollywood's been making the case for defending itself as an American asset for years. More recently, post-9-11 America has seen a tighter identification of national security with national economic goods - what's good for GM or MS is good for Homeland Security, or stop IP infringement to stop piracy. Such policies easily hit the world market because of the ease of transfer via digital networks, and because some users employ those networks to trade copies of some of that IP. This is the opposite of the gift economy models that partially describe the open source world, of course.
Here are two questions, then.
First, if neodigitalmercantilists seek to maximize their power to export, are imports still a threat, given the nonrivalrous nature of digital goods?
Second, if this form is indeed emerging, how will transnational, mobile capital respond and develop? Will we see the emergence of truly international IP, or just competing national regimes vying for market share?