Information May Want to Be Free, but Information Products Do Not: Protecting and Facilitating Transactions in Information Products

Information products - products that are used to organize, provide context, and distribute information - have gone largely unprotected by intellectual property regimes. As a result, producers of information products, such as databases and software, have resorted to alternative mechanisms to protect their investments. These mechanisms have resulted in both over-protection and under-protection of the information products. Further, the uncertainty in the boundaries of coverage, coupled with the resort to self-help mechanisms, may well inhibit, rather than facilitate, information flow.

What is needed is a sui generis protection scheme for information products that clearly defines the boundaries and protection requirements for these works and that provides an appropriate level of protection, based in part on a liability-type regime, to both promote creation of information products and encourage transactions in these works. By protecting the investments of information product creators, while still allowing or even facilitating the free flow of information, it is possible to take a nuanced approach that capitalizes on the best of both intellectual property and alternative regimes. Information may want to be free, but information products do not.