Stardate 20020207.1351

(On Screen): Kevin Whited expresses a libertarian attitude towards intellectual property rights. He is concerned about the fact that Glenn Reynolds (here) seems to talk about IP law in utilitarian terms, as regards to how it benefits society.

IP law has always been utilitarian. If it were dealing with some sort of universal human rights, then control over intellectual property would be eternal. But as long as it has existed, it has always been limited in scope. In particular, both patents and copyrights eventually run out, and the IP they protect lapses into the public domain.

We have IP law not because of any idea of fundamental justice or natural rights, but because IP law enhances the economic activity of the nation. The Founders included it in our government in Article I, as one of the powers granted to Congress:

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;

The goal is to advance science, engineering and the "useful arts". It's not explicitly to reward creators. Creators are rewarded as a means to the end of promoting progress. Protection of intellectual property is not treated as a fundamental right.

There's a good reason why the protections are broad but not infinite. If there is no IP protection at all, then there is little incentive to take the risk or make the investment to create new things. On the other hand, if the protection is infinite and eternal, then this chokes the system with litigation (which is what Glenn is complaining about), and prevents society from fully benefiting from the creativity of its members. The idea is to find a happy medium which optimizes progress.

To that end, creators are given rights over their creations for "limited times". During the interval of protection, they get rewarded for what they've done. After the protection runs out, what they've done becomes freely available for everyone to use and to build on. Both protection and expiration are essential parts of the mix.

In terms of compulsory license schemes, that is so far as I can tell legal since it would fall within the point of the process: to reward the creator (and provide an incentive to creation) while at the same time advancing progress of science and engineering (and "useful arts"). If an important advance is created and then locked up, it's not to the benefit of society.

The real problem is a tradeoff on duration of protection. If protection is longer, then the creator has a longer period in which to be rewarded, which gives greater incentive to create. On the other hand, if the period is shorter, then the work can become the basis for further development by others sooner.

I think that patent protection is pretty much on the mark in terms of duration. A patent expires 20 years after it was initially filed, and this gives adequate time for the creator to get a reward for the work, while releasing the technology into the public domain within time for it to be usefully incorporated into later works.

On the other hand, copyrights are far too long now.

I know that Kevin's feeling about this is that principle is more important than utilitarianism. I personally don't agree, but that's because in many ways I am a utilitarian at heart. (I tend to judge the value of something mostly on the basis of how well it works, irrespective of how well it matches some ideology or other. Maybe that's because I'm an engineer.)