FEAS Yearbook FEAS Yearbook 2002 | Page 15

FEDERATION OF EURO-ASIAN STOCK EXCHANGES > YEARBOOK 2002/2003 > PAGE 13 WORLD FEDERATION OF EXCHANGES INTRODUCTION Information, an essential commodity for financial markets, has a very elusive nature. It has many of the characteristics of public goods, as consumption by some does not usually prevent consumption by others. Yet many forms of information are also traded in specialized markets in ways comparable to private goods. Unexpectedly, we may turn to light for a better understanding of the properties of information and the challenges they present for exchanges. During the pioneer times of scientific exploration, a virulent debate emerged on the nature of light. Some claimed light was an immaterial wave that could travel through empty space and matter alike and remain radiate. Others considered that light could be broken down into physically defined and countable units called photons. In fact, modern physics considers that both sides were right and holds that light can equally be considered as a particle or as a wave. Defining it as one or the other only depends on when and how you need to use its properties. Information has a duality which is quite similar to that of light: it can travel and disseminate freely like a wave through all sorts of media, or it can be made proprietary, bundled and commercialized in a defined legal or contractual framework, just like photon obeying the laws of physics. This dual vision was clearly perceptible in insights shared with Prométhée by several exchange executives, as for instance at the Stock Exchange of Thailand (SET). In their words, for exchanges like SET, “in the short run, the most important thing is to increase our investor base by disseminating both trading and listed company information on a mostly free and real- time basis, instead of generating maximum revenue out of it”. Yet in the long run and once it has reached a size it considers as critical, SET may uphold the view that it has a right to “sell part or all of the information” that it gave for free earlier in its growth process. As this and other exchanges’ experiences suggest, market data and market-related information can be apprehended both as a free public good and as a proprietary and tradable good. It all depends on when and how one needs to consider each aspect. During some stages of commercial development, an exchange is most likely to consider free dissemination of data as crucial to attracting investors and liquidity. Exchanges in more mature markets might find it more interesting to dispense only core and mandatory data for free while commercializing real-time and additional data through vendors. In either case, working within their regulatory framework, exchanges decide on the fate of the information they generate: will it be given for free or will it be sold? They have to integrate intellectual property management choices into their overall strategy for growth. Although there are some differences in approach depending on the countries, intellectual property can roughly be divided into five main areas: (1) patent, which is designed to protect inventions; (2) copyright, which protects original author’s works – including literature, sound recordings, films, broadcast and cable programs, typographical arrangements or published editions; (3) industrial design rights, which protects the original design of industrial processing devices; (4) registered trade marks, protecting “any sign capable of being represented graphically and capable of distinguishing the goods and services of one undertaking from those of others” 1 , and (5) confidential information rights, which protect commercial or trade secrets. Each area has corresponding territorially-based legal regimes. But what about information such as market data? Does this specific material fit into any or many of the five categories of protection? Can exchanges really understand their information dissemination business in the light of the present IP regimes? As we have seen in the analogy with light, there is clearly an ambiguous status for this kind of information. This paper tackles this ambiguity by sketching the main tendencies and issues which are springing up from particular cases in this and other industries around the world. Exchanges will benefit from keeping track of these issues linked to information either because they can impact their business directly (e.g. in the field of market data) or because they set a framework that they must take into account in thinking about their strategic positioning. Information property rights is a subject which can thus be addressed in a three-fold movement. First, information must be positioned as a critical issue for exchanges: even if it can appear to be a free resource – exchanges themselves often knowingly give it away for free in their own interest in the realization that there is true value– the downfall of the early Internet libertarian frenzy proves that in reality information is a highly valuable and appropriable commodity. Hence in part 1, we will explore this interplay between free-for-all “information commons” and the “innovation commons” from which technology is gradually leading information goods to enclosures. Secondly, this new reality is not yet fully acknowledged in the present national and international IP regimes, and exchanges have adapted through the usage of ad hoc, pragmatic solutions. Part 2 will therefore explore both the existing IP regimes and the pragmatic solutions exchanges have brought to address the absence of clear and harmonized regulation in the specific field of market data. Together, these three aspects of information – and notably this tension between “information commons” and “innovation commons” – can provide the necessary background analysis for exchanges to use to their best advantage the dual properties of information, a light in the market that both radiates as a wave and can be enclosed and traded as a valuable commodity. CONCLUSION The three-fold analysis put forward in this paper highlights the importance of transformation in IP regimes for informational goods. The role of information as an economic object continues to change rapidly, as we saw in part 1, with the impact of technological advances in the fields of communications and networks. As a consequence, as we showed in part 2, IP regimes can appear to be out of tune with the way information is actually being used, and notably by exchanges. Lex informatica – a pragmatic, software-based set of decentralized solutions – tends to fill the vacuum. The exchange community has reacted quickly, and many exchanges can be seen indeed as mastering an almost Darwinian art of adaptation. Meanwhile, however, as shown in part 3, other key actors are taking initiatives, either alone – like Schwab – or in concert – like the FISD– to trigger lawmakers into providing a fully fledged answer to fundamental issues regarding information management, that may well disrupt the pragmatic balances currently struck by exchanges. Exchanges will be increasingly confronted with the dialectics of information commons, in which visibility and liquidity can be established, and innovation commons, from which the tools of enclosure can be built. The latter is probably the strategic arena in which they must increasingly excel individually, once they achieve a preeminent position that allows them to turn some types of market data into valuable products. Yet, collectively exchanges must also make sure the force of “information as a commons” remains on their side. Defining this combination of a collective effort to preserve open information commons and of individual efforts to enclose new or specially valuable information assets is among the fundamental challenges of the early 21 st century for the world of exchanges. To read a complete copy of the text of this study please go to: http://www.world-exchanges.org. Lastly, there is a response to these recent trends in the field of information property from courts and regulators. These responses – captured in part 3 – are the building blocks for future IP regimes, which the exchange community must be aware of. 1 Intellectual Property Law, Jennifer Davis, Butterworths, 2001 Contact Information Mr. Thomas Krantz Secretary General [email protected] www.world-exchanges.org