Sunday, December 28, 2008


Intellectual Property

I've inserted this cartoon without permission of its author. It has copyright protection. If I were to publish it in an anthology of cartoons about the internet, it would be illegal. However, it is legal for me to use it under the "fair use doctrine" in order to illustrate a larger point. If one of the dogs looked like Elvis, I might be sued by the Presley estate (which was sold some years ago by Prisilla and AnnMarie). This is covered under laws pertaining to "privacy and publicity" rather than copyright. The situation concerning "intellectual property" is a mess and hardly conforms to the Founders' notions in the Constitution. In Thomas Jefferson's view, ideas themselves are not patentable. They must be reduced to practice. Jefferson did not see individuals as having an unalienable creator-given right to the fruits of their minds. That could only be granted by the State. Similarly, other property like land is not owned by an individual according to Jefferson. The sovereign or state grants property rights. Note the constitution:

"To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

This is unusual for the Constitution in that the Congress is told what it must do and the REASON behind that obligation. We don't give a person exclusivity, because it's the RIGHT thing to do. We give it, because it is the PRACTICAL thing to do. It's good for progress. Currently, we are way beyond that principle in that we grant exclusivity to estates of creative people and thereby inhibit creative use of a product for additional generations. We often inhibit progress. Philosophically, it all hinges on what we think of, as a right to our ideas. Note that Jefferson and Franklin never patented their important inventions despite the fact that they would be granted exclusivity under today's standards. Many of today's patents would fail the test by being an obvious extension of a previous work. Unfortunately, in academia having a patent has become a badge of honor like publishing lots of papers. Since the cost of the patent is most often born by the institution, the "progress of science and the useful arts" is not necessarily a consideration. The morass is made worse by the fact that licenses and permissions are often difficult to obtain, because one cannot find the current owner of a copyright. With respect -Joel

1 comment:

Ira Glickstein said...

Neat cartoon (which dog am I?). I know there is lots of controversy about "intellectual property" (IP).

I agree with you Joel that "We don't give a person exclusivity, because it's the RIGHT thing to do. We give it, because it is the PRACTICAL thing to do. It's good for progress." Therefore, any right to IP is limited to what is good for a given society over the long run.

Copyrights, patents and trademarks are good for only a limited number of years. Lawyerly attempts to stretch the period of coverage of copyrights and patents beyond ten to twenty years are IMHO not good for society nor are attempts to patent pure ideas that have not been reduced to practice.

Within those limits, however, I support the basic idea of IP. Here is my reasoning: If a workman is needed to do a task - say dig a ditch - and someone agrees to a price and he digs it and they pay, nearly all of us would agree the workman is entitled to keep the money earned. It would be wrong for anyone, including the government, to take the money away from him beyond modest income and Social Security taxes.

If the a worker saves her money and buys a building and tools and sets up a business, she is entitled to keep and use whatever income it yields, again less modest taxes.

The above two examples involve what is called "rivalrous" property. That means, for example, once the ditch is dug or the building is built or the money is paid, it can only be used by one person at a time.

That is not the case with materials that are copyrighted or patented or trademarked. Once a novel or song is written, or an invention is made, or a business name is popularized, anyone can duplicate and use it at very little or no cost. Such duplication does not appear to deprive the originator of anything. He or she can still sing that song or read that novel, use the invention, or keep the popular name of the business. They are thus non-rivalrous and therefore some claim they are not property.

I think that is a (nearly) empty argument. In the case of trademark, if you compete with me using the same trade name I have made popular, buyers may think you are me and my reputation may be adversely affected by your actions. In the case of copyrighted material and inventions, I may lose an opportunity to sell the book or song or patented invention and that will certainly reduce my income.

Just as it was wrong to deprive the workman of the money earned, or the business owner of the profits from her store or factory, it is wrong to deprive the creator of intellectual materials of the useful fruits of their honest labor.

Society benefits from IP laws because, in the words of the Constitution it promotes "the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

Absent IP protection, individuals and institutions such as universities and industries would not invest as much time and money into useful arts and science and technology and society would be the poorer for it. Lack of IP protection would lead to an increase in the practice of keeping trade secrets where the originator hides the unique processes or ingredients to prevent competitors from copying them. An advantage of IP protection is that is encourages the creators to reveal the innards of their inventions and sets a limited time after which these creations become public property, available to all.

To the extent limited IP protection benefits the societies that adopt it and hurts the societies that do not, it appears to me to have a claim to be a "natural law" or what we common folks call RIGHT. Thus IP is not only PRACTICAL but RIGHT as well.

Ira Glickstein