Beyond Labels

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Readings on Intellectual Property

Proposition: Some parts of intellectual property law not only do not support the purpose outlined in the US Constitution “to promote the progress of science and the useful arts,” but in some cases actually slow progress.

Note: I don’t think this proposition is true in all fields and in all cases, but I don’t think that its opposite: that protection of intellectual property leads to more progress and more innovation is true, either.

Here’s some reference material.

From the constitution:

The Congress shall have power … 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;

For more, see this Wikipedia article.


Wikipedia article on Societal value of patents. It’s tagged as possibly biased. It links to this  article: “The tragedy of the anticommons, the flip side of the better known “Tragedy of the commons.” The original Harvard Business Review on “Tragedy of the Anticommons” is here.

Here’s an article that addresses the question and says that the market is the arbiter. And one in Forbes. A couple of views in the Wall Street Journal.

This Quora topic “Is the protection of intellectual property beneficial for society or is it a selfish behaviour?” summarizes some of the academic research on the question.

Apropos of health care this past week someone pointed out that “Monopoly retards innovation, constrains supply, raises prices.”

That’s the core of an argument against intellectual property protection. IP protection, both in the form of copyright and patent, grants a limited term monopoly to the IP owner. This argument is fleshed out in a 2008 book published by Cambridge University Press with the provocative title “Against Intellectual Monopoly.” The book was written by two academics Michele Boldrin and David Levine, and consistent with their principles the entire book can be found online here. What I’ve read of it (not a lot) is pretty well reasoned and supported.

This sounds like a kind of a lefty position, but there seems to be a thread of libertarian thought that supports these arguments, though with some reservations. This is a review of the book on the blog of The Mises Institute, hardly a bastion of progressivism.

Chapter 9 here, specifically addresses the pharmaceutical industry, which we discussed at our last meeting.

It seems to me that there is a fundamental difference between intellectual property protection under copyright and under patent. In the case of copyright, an innovator has created something that did not exist before the creation. Patents, on the other hand, are a matter of discovery, not creation. One discovers that combining this and that in a particular way produces a result. Anyone who discovered the same combination would have gotten the same result.

But all slopes are slippery. Even though artistic creations are unique, none are created in a vacuum. A popular treatment is: Everything is a remix. Lawrence Lessig of Harvard gives a TED talk here on how IP Laws are stifling creativity.

1 Comment

  • In Michael Heller’s article on “The Tragedy of the Anti-commons” he says that “the rise of the robber barons in medieval Germany was the result of the tragedy of the anti-commons. Nobles of Europe commonly attempted to collect tolls on stretches of the Rhine passing by or through their fiefs, building towers alongside the river and stretching iron chains to prevent boats from carrying cargo up and down the river without paying a fee.” (Also the salt tax concessions in France which lead to the revolution)
    The American founders must have been concerned about the anti-competitive consequences of the robber barons when they wrote Article 4 of The Northwest Ordinance of 1887 the year before the Constitution: “The navigable waters leading into the Mississippi and St. Lawrence, and the carrying places between the same, shall be common highways and forever free, as well to the inhabitants of the said territory as to the citizens of the United States, and those of any other States that may be admitted into the confederacy, without any tax, impost, or duty”
    The founders were well aware of the tragedy of the anti -commons. The Constitutional reference to Congress granting exclusive rights was “limited” and to be granted to individual authors and inventors and not expected to be an impediment to commerce, although the unintended consequence might be otherwise.

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