Digitalization vs. Assumptions of the Theory of Incentives. Towards a Change of the Paradigm From Exclusive Rights to Non-exclusive Rights as Part of the Regulation of Intangible Goods

The shaping of the content of rights on intangible goods depends, inter alia, on the assumptions made about the models of organization of production processes and distribution of such goods as works or inventions. The currently adopted method of regulating such goods is based on exclusive rights. The aim of the article is to indicate what assumptions justify the adoption of such a model and their critical analysis. The starting point will be the neoclassical theory of public goods and the theory of incentives based on it, which justifies the creation of exclusive rights for the regulation of intangible goods. The indication will include that the conclusions derived from the theory of incentives do not take into account all the recommendations flowing from the theory of public goods. The theory of public goods does not justify, contrary to the claims made within the theory of incentives, that the creation of exclusive rights is a cost-free action, and desirable in every respect. The main point of the analysis is devoted to the assumption of the theory of incentives, which concerns the dominant model of creation and distribution of works and inventions. Contrary to the tacit assumption of this theory, people undertake creative and inventive activities within various models, guided by different motives. This state of affairs undermines the need to base the system of regulation of intangible goods, such as works or inventions, on the model of exclusive rights. What is more, taking into account other interests of entities creating under various models indicates that exclusive rights are not only not necessary, but can be harmful