“The shackles of openness”: rethinking the paradox of copyright instrumentalization through a capability approach

Abstract The emergence of open-source software presents a profound challenge to the traditional incentive theory of intellectual property, giving rise to the “paradox of copyright instrumentalization”: rights holders retain their copyright yet leverage its exclusive position to compel downstream compliance with conditions of openness, rendering copyright simultaneously an instrument of proprietary control and compulsory openness. To elucidate this paradox, Amartya Sen’s capability approach is adopted as the analytical framework. Examined through this lens, copyright law’s posture of neutrality toward open-source licenses conceals substantive inequalities in the capabilities of different actors to exercise their formally identical rights. Major technology corporations leverage open-source strategies to establish ecosystem control, while disadvantaged subjects suffer a threefold capability deprivation spanning business model capability, technological autonomy capability, and rule-making capability, such that copyright’s neutrality may entrench existing patterns of inequality. Grounded in this analysis, a capability-oriented governance framework is proposed, anchored in three principles, namely capability equality, minimum capability threshold, and capability deprivation scrutiny, alongside four institutional recommendations: the democratic transformation of open-source project governance, the establishment of a capability-scrutiny mechanism targeted at high-impact open-source licensing provisions, the integration of capability considerations into antitrust law and platform governance, and the construction of judicial capability compensation mechanisms. Through this dual construction of substantive and procedural institutions, a just reconstruction of copyright governance in the open-source era may be achieved.