Thursday, October 4, 2012

Personal information as Intellectual Property

The idea about propertization of personal information could also include the view of personal information as individual’s intellectual property. Granting individuals property rights over their personal information might increase the level of privacy protection in cyberspace.[1] 

Samuelson in her article “Privacy as Intellectual Property?” claimed, that “granting individuals property rights in personal information is unlikely to achieve information privacy goals in part because a key mechanism of property law, namely the general policy favoring free alienability of such rights, would more likely defeat than achieve information privacy goals.[2] Nevertheless, Samuelson was convinced that using property rights to grant individuals protection over their personal information would establish a different intellectual property regime for such protection, there would especially be a difference in purposes and in mechanisms applied.[3] The intellectual property law rationale stands in economic reasons that wish to encourage private investments into creation and also distribution of intellectual products, such as artistic, technological and literary creations.[4] The law therefore tries to protect creators from free–rides who might appropriate their creations with its replication and creating a competition on a market.[5] On the other hand, personal information does not need property rights, which will “bring them into being, nor to achieve widespread distribution of them,” since they mostly already exist.[6] However expanding intellectual property law over the protection of personal information might cause incoherence in intellectual property law, especially because the creation and also dissemination of personal information does not generally promote knowledge or innovation.[7] 

Nevertheless there might be an option to adjust and apply a moral right regime on the protection of personal information.[8] Usually, recognized moral property rights are rights of attribution and integrity as well as rights of divulgation and withdrawal.[9] Moral rights are focused on the author’s reputation, hence it could be hard to measure whether any harm has occurred and the same could also apply for goodwill.[10] 

A moral right approach could be used in the area of personal information, since individuals, like authors, have the interest of integrity when it comes to their personal information.[11] This approach has a possibility to grant individuals grounds to claim for injunction relief and get injunction remedies in cases when a licensee uses an individual’s personal information in any other way than as it was negotiated.[12]

[1] Samuelson, P. (2000, May). Privacy As Intellectual Property? Stanford Law Review Vol. 52, No. 5, Symposium: Cyberspace and Privacy: A NewLegal Paradigm?, pp. 1125-1173, p.1125.
[2] Ibid.
[3] Id. p. 1129.
[4] Id. p. 1139.
[5] Id. p. 1140.
[6] Ibid.
[7] Ibid.
[8] Id. p. 1146.
[9] Id. p. 1147.
[10] Id. p. 1148.
[11] Ibid.
[12] Samuelson, 2000, p. 1149.