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[Sabrina Safrin (guest-blogging), March 8, 2007 at 9:24am] Trackbacks
Globetrotting Propertization.

Today's global economy makes the chain reaction creation of property rights more pronounced because changes in property rights in one country, particularly when internationalized, can trigger unanticipated changes in the property regimes of another. The propertization of naturally-occurring genetic material that occurred in response to the patenting of bioengineered organisms and isolated and purified genetic sequences represents one example of globetrotting propertization. The growing international demand for the creation of new intellectual property rights to cover traditional knowledge represents another.

Most knowledge that we use is both traditional and free. It consists of human innovation and insight developed over millennia and passed down from generation to generation. We take the free availability of most information as a given. Yet, today many nations demand the development of new intellectual property regimes to cover "traditional knowledge." A flurry of international activity in multiple fora has materialized on this issue. Several nations have already enacted measures to protect traditional knowledge.

What has occurred to cause nations to demand the extension of intellectual property rights to tradition?

Anthropologist Michael Brown observes that "[i]n the late 1980's, ownership of knowledge and artistic creations traceable to the world's indigenous societies emerged, seemingly out of nowhere, as a major social issue."

Did something happen in the late 1980's that could have engendered such demands? Yes, the internationalization of intellectual property.

In the late 1980s, the United States began to impose trade sanctions against countries that accorded little or no protection to U.S. intellectual property goods. Moreover, in 1986 and 1987, the United States and the European Union linked intellectual property and trade in the negotiating mandate for the Uruguay Round of the GATT. The 1994 adoption of the TRIPs Agreement, which emerged from the Uruguay Round, required countries to put in place, as a condition of participating in the world trading system, copyright, patent, trademark and trade secret laws.

Beginning in the late 1980s, developing countries were thus forced to extend a host of intellectual property protection to a vast range of knowledge that had hitherto remained free in their countries. They responded to these first generation intellectual property rights by demanding in numerous international fora the development of second generation intellectual property rights which would propertize traditional knowledge generated in their countries that had previously remained open.

For example, developing countries strongly object to the TRIPs requirement that they extend patent protection to pharmaceutical goods. In turn, their demands for the extension of intellectual property protection to traditional knowledge often concern the protection of folk remedies. Similarly, developing countries have responded to the developed country insistence on intellectual property rights over plants by demanding the international recognition of "Farmers Rights" to address the historical and continued contribution of farmers to the development of crops.

In response to requirements that developing countries extend copyright protection to artistic works, these countries now demand that some kind of intellectual property right attach to traditional songs and dances that originated in their countries. They decry the copying of these traditional works or their incorporation into new works as "piracy."

The internationalization of intellectual property began a chain reaction of propertization that not only encompassed new technologies and creative works but also unexpectedly innovations and expressions existent for centuries.

Should the movement to extend intellectual property rights to traditional knowledge take root, I expect that in chain reaction fashion it will engender demands to protect not only knowledge from developing countries and from indigenous communities but also traditional Western knowledge. Each year when I teach about international developments to establish new intellectual property regimes to cover traditional knowledge, some students invariably assert that traditional Western knowledge should receive the same protection. One student recently elaborated on all the intellectual property rights that ought to attach to the hamburger.

(I note as an aside that there exists a tendency in the United States not to take overseas and international propertization developments that seriously. Who cares if Panama or Brazil restricts access to raw genetic material or puts in place an intellectual property system to cover traditional knowledge? These developments can, however, impact the U.S. intellectual property system. For example, an increasing number of both developed and developing countries believe that the TRIPs agreement should be amended to require that patent applications disclose the source country of any biological material used in the innovation. If the amendment is adopted, this disclosure requirement could apply to U.S. patent applications as well.)

Rattan (mail):
I helped with an article on tradtional knowledge and the impact of its protection couple of years back. My conclusion was that such knowledge is too fragmented between modern jurisdictions to make its protection a hinderence. Even Western Traditional knowledge would have claiments from Greece, Rome, Middle East and most of the area now occupied by Macedonia, Bulgaria, Turkey, North Africa- even Afghanistan, India and China. The issue will be which Greek or Roman immigrants should be disfranchised or do the rights attach to the land only.

Same problem attaches to other 'tradional knowledge' stores. That is why rights in actual products or services- typically developed after significant experimentation and labor, and already possible in the patent/trademark/copyright regime are the only ones that will be valuable. Rest are mere bragging rights.

There is confusion in some developing countries about what exclusive rights are supposed to do. The push to protect traditional knowledge is largely from (i) national pride, (ii) assumed superiority of their respective traditional knowledge in view of lack of knowledge about traditional knowledge of developed countries- which is comparable, (iii) fear of being exploited as a group- a rather irrational notion as there is little developed countries can do that the developed countries do not inflict on themselves in bigger doses.

Development is reflected by development of skills- the more diverse skills a society possesses, the more successful it will be. Instead, in many developing countries development is conflated with standard of living or monuments. Thus, a cosmopolitan approach and encouragement leading to development of new skills is key. This runs counter to items (i) and (ii), which are unlikely to help with the balance of payment or other needs of developing societies.

Further, the US approach of not taking such traditional right regimes seriously is quite sensible because traditional knowledge, even if protected by exclusive rights, can only command a price that is determined by the market. As an example, take China and India, both of which claim extensive traditional knowledge stores about medicines and various cures. Over the many decades both have failed to successfully bring pharmaceutical products to market despite many attempts and dedicated bureaucracies for making this happen. The level of capital and skills needed to make this happen were simply not there and the red tape- it strangles their own as efficiently as it strangles foreign owned enterprises.

By proclaiming exclusive rights on their traditional knowledge, it is going to be more of the same. There is little reason to worry about such regimes as it may be harder to kill them than to let them dies a natural death.

As to biological materials, the basic reality is that while it is easier at times to get a gene from a known pool, it is also possible to fish it out elsewhere or find 'improved' versions of it independently. Thus, all human genes are the traditional knowledge of Eastern Africa from where it seems all of us sprang forth. To the extent this origin is discounted, most other mutations or their equivalents are present in some form in other regions due to immigration and plain biological reality. Therefore, this is unlikely to be much of a restriction or one that has a rather affordable cost due to the many possible sellers of the knowledge.

At the end of the day, if exclusive rights in traditional knowledge make it easier to provide access to traditional knowledge and to preserve it, the price paid for it will justify such rights. Otherwise, granting such rights will at best be a minor nuisance due to worthless rights- as is the experience with majority of issued patents.
3.8.2007 11:09am
JunkYardLawDog (mail):
All this developing evolving and globalizing propertization rights are, imho, barriers to economic growth and vitality. As these things grow and evolve in greater complexity they work to strangle innovation and development of all economies worldwide.

I believe that the USA and world economies would be far better served by having fewer to NO intellectual property rights and guarantees. That copyrights if they were allowed to exist at all should be for an extremely limited period of say 3 to 5 years maximum. Patents if allowed to exist at all should be limited to 5 maximum. Software should not be patentable under any circumstances. Neither should pan fried catfish recipes.

Given the rate at which knowledge doubles and the current pace of innovations any idea, device, expression, or machine is completely out of date and obsolete in 5 years. For those rare cases where they are not obsolete in 5 years, the 5 year or less protection ranges means individual creators must continue to create and innovate and can't rely on government enforced protection to make their aging old products competitive.

In today's world of developed countries the need for innovation and creative uses of derivative works should override the need to offer inventors and creators the incentive for anything more than a very few years of protection before those inventors and creators must create and innovate anew against competitors who might extend, further develop, and enhance through derivative works the original inventors/creators expressions, ideas, and machines.

In sum, it is absolutely insane to try and regulate intellectual property rights using a system developed in the 19th century for a 19th century pace of knowledge growth and 19th century pace of economic development for a 21st century economy with 21st century pace of economic and technological development.

Intellecutal property lawyers could be put to far more productive use of their energies and time, if they were forced to practice in some other area of law as a result of doing away with or virtually doing away with all these 19th century based kludges for government granted monopolies on ideas and expressions.

Patents and copyrights are nothing but government granted monopolies on ideas and expressions. Monopolies are not good as a general matter; suck the life out of innovation and development; and should either not be allowed to exist at all or only allowed to exist for very *short* periods of time.

Says the "Dog"
3.8.2007 12:09pm
TSW:
I don't know much about IP in general, and this is the first I've read about attempts to create property rights in traditional knowledge. Nevertheless, the idea seems to contradict the basic of purpose of intellectual property, which is, as our Constitution expresses, "to promote the progrss of science and useful arts." IP exists to provide people economic incentives to come up with new ideas. However, by definition, people cannot invent new "traditional knowledge." Moreover, IP protection comes at a price: it creates governmental restrictions on the ability to make use of valuable knowledge. We accept these costs only on the theory that they are outweighed by the benefits of encouraging innovation. Therefore, it seems to me that creating property rights in traditional knowledge would not only fail to do any good, but would cause positive harm. Is there any serious argument in favor of it, or is it simply about coddling the self-esteem of cultures that can't compete in the modern world?
3.8.2007 12:58pm
hey (mail):
This is nothing more than Leftist wrecking, ever so popular amongst a particular demographic of the conspiracy's readership. And yes I said and mean Leftist, since they are the same people that aid and abet terrorists throughout academia and politics.

The point of IP is to encourage novelty. Traditional knowledge has no author, one of the reasons why traditional knowledge progresses so slowly. The US' patent and IP system accelerated the pace of innovation, which lead to its supremacy. For a VERY long time a patent required a specific Act of Parliament in the UK, and prior to that it was a grant of the Moanarch. This impediment to progress was mirrored by the process of incorporation and the demolishment of barriers in the US and the UK. Opponents of both of these systems are motivated by the goal of destroying western civilisation and returning us to agrarianism, rather than any actual concern for people as ends rather than means.

3rd World countries should cut red tape and improve their access to incorporation and IP for everyone, rather than reinforcing the role of the state. However they are focused on going back to a hunter gatherer existence by their election of leftist governments. Let them reap the "benefits" of their choices.
3.8.2007 1:32pm
JunkYardLawDog (mail):
Hey


The US' patent and IP system accelerated the pace of innovation, which lead to its supremacy. For a VERY long time a patent required a specific Act of Parliament in the UK, and prior to that it was a grant of the Moanarch. This impediment to progress was mirrored by the process of incorporation and the demolishment of barriers in the US and the UK.


A good point by Hey which serves to highlight my argument for limiting or doing away with almost entirely the current IP system of the USA.

The changes in IP law that were the barrier striping engines of innovation and development in the 19th century are now, as a result in huge changes in knowledge, technology, and speed of communication and travel, the new BARRIERS to innovation and development in the 21st century.

We need to do anew what Hey describes was done in the 19th century by the USA. We need to LOWER and do away with the barriers to innovation and development that are now the current state of USA and world IP laws. We need to reduce copyright periods to 0 to 5 years. We need to limit patents to a maximum of 5 years. We need to completely outlaw the granting of software patents. We should eliminate any possible extensions of time for a copyright or patent. The time lines should run from the date of creation/commercialization/public knowledge and NOT from the time of death of the creator.

If we make these changes and abandon the protectionist effects of this antiquated 19th century system of government granted monopolies on ideas and expressions we will unleash a huge economic boom that will raise all boats including the 3rd world boats managed by corrupt dictators and despots.

Says the "Dog"
3.8.2007 2:24pm
Toby:
If encouraging innovation was the point, and assuming it was important to get the Mickey Mouse added to western society, can *anyone* define how innovation is encouraged by extending IP on IP created generations ago?

People already created that IP under the old rules.
3.8.2007 3:02pm
Dick Schweitzer (mail):
The citation of TRIP raises the issue of how meaningless such "international" arrangements can become. One has only to look at the bureaucratic excesses of the current EU, which just rides roughshod over TRIP. "Comments" in the WSJ today (03/08/07)gives a prime example in the position being taken on Microsoft.

The EU folks seem to want to go further and require people to give up trade secrets as well.

There are other means of getting the most one can out of craetive endeavors, but they require some degree of destruction (if not violence). When seking change,keep in mind the law of unintended consequences.
3.8.2007 3:05pm
New World Dan (www):
JYLD does make a few good points. Software patents are particularly absurd. Describe an idea to pretty much any software engineer and odds are, they can find a way to make it work. In fact, take any sufficiently complex project to 100 engineers and you'll probably get 100 rather distinct implementations.

However, before reducing copyrights and patents to virtually nil, a little bit of hard research might be in order. I'm sure there is an ideal mean length for a patent, and it's probably less than 17 years. How long does it take to bring an invention to market and make a worthwhile profit it from it? I don't know. The product that I work on is just starting to sell nationwide and it's been in the works for about 7 years. And that brings up a suggestion I have for patent reform: patents should run from the date of invention, not the date of issuance.

As for copyright length, 99% of works will earn 99% of their revenues in the first few years. A copyright term of 26 years (what was available under the first US copyright statute) is insanely long in the current market.

Now, let's talk about why that won't happen. The US is a huge exporter of copyrighted works. From software to movies to music, the US is the worlds biggest producer. As if that weren't enough, somewhere along the line copyright went from being a practical incentive to being a moral right. And that's where copyright fundamentally went wrong. As near as I can tell from my (limited) research, that idea was first put forth by the French and Germans who thought it just horrible that any of their "classics" might ever be desecrated. Combine that with the influence of Disney and other media giants and you get what we have now: copyrights that never end.
3.8.2007 3:33pm
New World Dan (www):
Toby:

That's my biggest complaint about copyrights. It went from a system that was designed to get artists and publishers to invest in new works to a belief in moral rights. That is, once you create something, no one else can touch it until the end of time because that would be morally wrong. It's no longer a device to benefit society.
3.8.2007 3:38pm
MnZ (mail):

I don't know much about IP in general, and this is the first I've read about attempts to create property rights in traditional knowledge. ... Is there any serious argument in favor of it, or is it simply about coddling the self-esteem of cultures that can't compete in the modern world?


I am new to this idea as well. However, I argument might be similar the argument for the Bayh-Dole Act. That argument goes something like this:
"There is a well of knowledge that could be used to make useful inventions. However, no one does because they cannot profit from it."

I have significant doubts about applying that reasoning here.
3.8.2007 3:52pm
JunkYardLawDog (mail):
MNZ


"There is a well of knowledge that could be used to make useful inventions. However, no one does because they cannot profit from it."


Those things and many more would suddenly seem a lot more profitable if the government wasn't in the business of granting lifetime and beyond monopolies on other ideas and expressions. Its a matter of choosing between alternatives and the patent and copyright monopolies cause distortions in economic decisions just like any other monopoly does.

Says the "Dog"
3.8.2007 4:11pm
American Psikhushka (mail) (www):
JYLD-

Given the rate at which knowledge doubles and the current pace of innovations any idea, device, expression, or machine is completely out of date and obsolete in 5 years. For those rare cases where they are not obsolete in 5 years, the 5 year or less protection ranges means individual creators must continue to create and innovate and can't rely on government enforced protection to make their aging old products competitive.

If everything is truly obsolete within 5 years, then the patent is protecting something that is not valuable. So why do you care?

And who are you to dictate when someone should "innovate"? If someone comes up with a solution that is effective and stands the test of time they have created a lot of value, and they should be compensated for that value.

This is really strange. There seems to be this whole group of conservatives and libertarians that suddenly become raging Marxists and "Labor Theory of Value" proponents when the topic of intellectual property comes up. You realize that under the "Subjective Theory of Value" that the value created can come from things other than physical labor, and that people have a right to be rewarded for the value they create, right? I don't know what it is, but it sounds like jealousy, bitterness, etc. and a lot like Marxist "class war" claptrap.

In today's world of developed countries the need for innovation and creative uses of derivative works should override the need to offer inventors and creators the incentive for anything more than a very few years of protection before those inventors and creators must create and innovate anew against competitors who might extend, further develop, and enhance through derivative works the original inventors/creators expressions, ideas, and machines.

And why should others reap the rewards of the sunk costs - in labor, materials, and opportunity costs - of earlier innovators? And who are you to set prices on their property or force its sale and public confiscation?

In sum, it is absolutely insane to try and regulate intellectual property rights using a system developed in the 19th century for a 19th century pace of knowledge growth and 19th century pace of economic development for a 21st century economy with 21st century pace of economic and technological development.

Well according to you, innovation is so rapid that these quaint patents are meaningless.

Intellecutal property lawyers could be put to far more productive use of their energies and time, if they were forced to practice in some other area of law as a result of doing away with or virtually doing away with all these 19th century based kludges for government granted monopolies on ideas and expressions.

Here you go with more collectivist claptrap. Who are you to decide how others spend their time and whether they are "productive" or not? More closet Marxism. Are you going to exterminate people that don't go along with your socialist plans like George Bernard Shaw proposed?

Patents and copyrights are nothing but government granted monopolies on ideas and expressions. Monopolies are not good as a general matter; suck the life out of innovation and development; and should either not be allowed to exist at all or only allowed to exist for very *short* periods of time.

No, they are limited protection for significantly novel creations and inventions. They help ensure that the value creators are rewarded for their creation, which is quite important in a capitalist economy. Especially modern capitalist economies, which are very driven by technology and innovation.
3.8.2007 5:41pm
American Psikhushka (mail) (www):
New World Dan-

That's my biggest complaint about copyrights. It went from a system that was designed to get artists and publishers to invest in new works to a belief in moral rights. That is, once you create something, no one else can touch it until the end of time because that would be morally wrong. It's no longer a device to benefit society.

To an extent it was always a moral right. If you create value, you have a right to be rewarded for it. And since it protects an individual's property rights and encourages value creation, it still benefits society greatly.
3.8.2007 5:45pm
American Psikhushka (mail) (www):
New World Dan-

Software patents are particularly absurd. Describe an idea to pretty much any software engineer and odds are, they can find a way to make it work. In fact, take any sufficiently complex project to 100 engineers and you'll probably get 100 rather distinct implementations.

If there is so much flexibility and the possibility of parallel solutions to problems, then it shouldn't be a problem for other engineers to come up with an alternate and possibly superior solution rather than demanding that they be able to use another engineer's protected work, right?
3.8.2007 5:50pm
JunkYardLawDog (mail):
American Psikhushka, thinks the "Dog" is a marxist. I'm afraid I'll have to stop grinning and gain my composure before I can give your message an appropriate reply. Which I will do a little later today when I have a bit more time.

Thanks,

Says the "Dog"
3.8.2007 6:36pm
MnZ (mail):

I am new to this idea as well. However, I argument might be similar the argument for the Bayh-Dole Act. That argument goes something like this:
"There is a well of knowledge that could be used to make useful inventions. However, no one does because they cannot profit from it."


OK...I took a glance at the literature. Based on what I saw, the advocates of "traditional knowledge" IPR do not use that argument. Instead, the arguments seem to be rather poor and made by people who don't seem to understand the theory behind intellectual property in the first place.

Truly disheartening!
3.8.2007 8:23pm
American Psikhushka (mail) (www):
JYLD-

American Psikhushka, thinks the "Dog" is a marxist. I'm afraid I'll have to stop grinning and gain my composure before I can give your message an appropriate reply. Which I will do a little later today when I have a bit more time.

Let's see:

- Wants to limit profit (indirectly set prices) in a particular market - check.

- Wants to confiscate private property and redistribute it publicly - check.

- Wants to reward labor for labor's sake rather than allowing the market to reward value creation - check.

- Wants to reduce or eliminate business competition in certain areas by punishing successful enterprises - check.

I don't know, looks pretty Marxist to me. Don't know which Marx, though. Could just as easily be Groucho as Karl.
3.9.2007 4:16am
...Max... (mail):
I think AP totally (and perhaps, intentionally) misses one important aspect: reducing patent and copyright protections does not mean any forced TAKINGS by the state. It means a reduction of PROTECTION provided by the state. Which may well be reasonable: individuals and corporations cannot generally summon property rights out of thin air (wait, wasn't something like that the subject matter of the post...). Which property rights are recognized by the state (by its legal system) and are granted legal protection, at the margins, is merely a policy matter. Is it worth taxpayer's expense to pay for enforcing extended Disney copyrights or collection of RIAA's court awards? Should society finance more litigation rather than creative activity?

I've not heard anyone advocating forceful disclosure of trade secrets...
3.9.2007 9:24am
JunkYardLawDog (mail):
AP

Let's see:


- Wants to limit profit (indirectly set prices) in a particular market - check.

- Wants to confiscate private property and redistribute it publicly - check.

- Wants to reward labor for labor's sake rather than allowing the market to reward value creation - check.

- Wants to reduce or eliminate business competition in certain areas by punishing successful enterprises - check.

I don't know, looks pretty Marxist to me.



That list looks that way to me too. Problem is I never said anything even remotely like that which you list above. Just the opposite actually, in substance, were my comments.

The "Dog's" still grinning.

Says the "Dog"

PS, I still owe you a more complete response which I will hopefully have time to provide a little later today.
3.9.2007 10:04am
New World Dan (www):
American Psikhushka,

To an extent it was always a moral right. If you create value, you have a right to be rewarded for it. And since it protects an individual's property rights and encourages value creation, it still benefits society greatly.

I refer to moral rights more in the context that it is wrong to "desecrate" a work - even 50 70 years after the artists death. As to "value creation", there is also tremendous value in the public domain. An ideal copyright law, in my mind, is one which puts the greatest number of the highest quality works in the public domain in the least amount of time.


If there is so much flexibility and the possibility of parallel solutions to problems, then it shouldn't be a problem for other engineers to come up with an alternate and possibly superior solution rather than demanding that they be able to use another engineer's protected work, right?

A couple of problems here. The first is that the PTO has been granting overly broad patents that cover the idea in the abstract rather than the specific implementation details. Next is that they grant patents over things that should be trivial to one skilled in the art of programming. Lastly, a lot of infringement claims (that I've seen) arise from independent work by engineers who have never seen or heard of the patented work. If I had the time or motivation, I could provide scores of examples of bad patents in the software genera.
3.9.2007 10:16am
TSW:
MnZ

"There is a well of knowledge that could be used to make useful inventions. However, no one does because they cannot profit from it."


The inventors of subsequent technologies derived from traditional knoweledge, e.g. drugs made from chemicals contained in plants used for folk remedies, could still patent the subsequent inventions. Giving an indigenous culture property rights in the folk remedy would impede invention by preventing others from manufacturing the synthesized drug (at least without paying for the rights). So I agree with your statement that "they don't seem to understand the theory behind intellectual property in the first place." And yes, it is disheartening.

Toby


If encouraging innovation was the point, and assuming it was important to get the Mickey Mouse added to western society, can *anyone* define how innovation is encouraged by extending IP on IP created generations ago?


This is an excellent point. IMHO it seems that retroactive copyright extensions should be unconstitutional because they are not promoting the progress of the arts. I think there is caselaw against me on that point though. Maybe they could be justified as commerce regulations. At any rate, it is clearly a payoff to a political lobby unsupported by any real policy.
3.9.2007 11:11am
JunkYardLawDog (mail):
American Psikhushka

JYLD-


If everything is truly obsolete within 5 years, then the patent is protecting something that is not valuable. So why do you care?

And who are you to dictate when someone should "innovate"? If someone comes up with a solution that is effective and stands the test of time they have created a lot of value, and they should be compensated for that value.

This is really strange. There seems to be this whole group of conservatives and libertarians that suddenly become raging Marxists and "Labor Theory of Value" proponents when the topic of intellectual property comes up. You realize that under the "Subjective Theory of Value" that the value created can come from things other than physical labor, and that people have a right to be rewarded for the value they create, right? I don't know what it is, but it sounds like jealousy, bitterness, etc. and a lot like Marxist "class war" claptrap.

In today's world of developed countries the need for innovation and creative uses of derivative works should override the need to offer inventors and creators the incentive for anything more than a very few years of protection before those inventors and creators must create and innovate anew against competitors who might extend, further develop, and enhance through derivative works the original inventors/creators expressions, ideas, and machines.

And why should others reap the rewards of the sunk costs - in labor, materials, and opportunity costs - of earlier innovators? And who are you to set prices on their property or force its sale and public confiscation?

In sum, it is absolutely insane to try and regulate intellectual property rights using a system developed in the 19th century for a 19th century pace of knowledge growth and 19th century pace of economic development for a 21st century economy with 21st century pace of economic and technological development.

Well according to you, innovation is so rapid that these quaint patents are meaningless.

Intellecutal property lawyers could be put to far more productive use of their energies and time, if they were forced to practice in some other area of law as a result of doing away with or virtually doing away with all these 19th century based kludges for government granted monopolies on ideas and expressions.

Here you go with more collectivist claptrap. Who are you to decide how others spend their time and whether they are "productive" or not? More closet Marxism. Are you going to exterminate people that don't go along with your socialist plans like George Bernard Shaw proposed?

Patents and copyrights are nothing but government granted monopolies on ideas and expressions. Monopolies are not good as a general matter; suck the life out of innovation and development; and should either not be allowed to exist at all or only allowed to exist for very *short* periods of time.

No, they are limited protection for significantly novel creations and inventions. They help ensure that the value creators are rewarded for their creation, which is quite important in a capitalist economy. Especially modern capitalist economies, which are very driven by technology and innovation.
3.9.2007 1:42pm
JunkYardLawDog (mail):
Dang!!!

I hit the wrong button when starting a reply to American Psikhushka. Please ignore the above message it contains nothing but a quote of what AP posted to me. Sorry for the duplication. The real post from me will follow below.

Says the "Dog"
3.9.2007 1:43pm
JunkYardLawDog (mail):
American Psikhushka


If everything is truly obsolete within 5 years, then the patent is protecting something that is not valuable. So why do you care?


Because patents of longer terms stifle further innovation and derivative works that could develop from numerous simultaneous competing sources once the patent expires.


And who are you to dictate when someone should "innovate"?


Not doing anything of the kind. No person has to innovate if they don't want to. Who are you to dictate that certain people should have a government granted monopoly of indefinite or way more than "limited" time periods.


If someone comes up with a solution that is effective and stands the test of time they have created a lot of value, and they should be compensated for that value.


No they haven't created any extended value. The government granted monopoly created the extended value. I'm sure if buggy makers had patented the wheel then those buggies would have still stand the test of time. We just wouldn't have cars with wheels or cars would be more expensive because of the patent payoffs required to the buggy makers. Right now software patents on things equivalent to the generic wheel are being unwisely granted by idiot bureaucrats at the PTO. 5 years is plenty of time to get compensated for ones originality. After that the government granted monopoly on thoughts and ideas should end.


people have a right to be rewarded for the value they create, right?


Sure. What hey don't have any right to is a government granted monopoly on ideas and thoughts in perpetuity. Which is the sad state of affairs of current IP law, in effect.


And why should others reap the rewards of the sunk costs - in labor, materials, and opportunity costs - of earlier innovators? And who are you to set prices on their property or force its sale and public confiscation?


If a 5 year monopoly isn't enough time to exploit a particular idea at market prices, then the investment of sunk costs will be driven to other ideas. That kind of evaluation goes on all the time. Nothing new there. Your comments about setting prices are completely misplaced. Nothing I've said has anything to do with setting prices. It has everything to do with providing incentives for greater and faster innovation and development of thoughts and ideas by changing the archaic 19th century big clunky machine and hand powered printing presses view of copyrights and patents. Its time for this area of the law to be completely re-written to reflect the current state of technology and technological change.



Well according to you, innovation is so rapid that these quaint patents are meaningless.


I said nothing of the kind. I said the quaint 19th century patent and copyright system in today's 21st century economy no longer functions to fairly reward innovation but instead rewards those with the most money for lawyers, stifles more innovation that it engenders and is a nut minus to society as a whole compared to a rational 21st century technological model for patents and copyrights.



Here you go with more collectivist claptrap. Who are you to decide how others spend their time


I expressed an opinion. That opinion was not a call for the government to tell patent lawyers where to spend their time. All your talk about collectivism presumes a government command. Market forces will make patent lawyers go elsewhere if the patent laws are modernized out of the hand powered printing press era in which they are currently stuck.



No, they are limited protection for significantly novel creations and inventions. They help ensure that the value creators are rewarded for their creation, which is quite important in a capitalist economy.


1. They are not limited. Copyrights are virtually unlimited, and patents are 3 times longer than necessary in the current 21st century economy. So the assertion they are "limited" reflects a lack of understanding or credulity. Further, patents don't have an exception for independent creation. If IBM had patented instead of just copyrighted its BIOS code for the original PC, it would have been IMPOSSIBLE for the clone PC market to spring into existence with a huge resulting drag on the move in the marketplace to lower priced more powerful PC's. The PC revolution might have been delayed 5 to 10 years at huges losses to the rest of the economy.

2. They no longer ensure a fair return for innovation. Now they ensure compensation far beyond, decades beyond, centuries beyond, the time periods necessary to spur innovation. Instead they are weapons used to club payments from others who wish to innovate and create for the good of themselves and others.


What you seem to forget is that unlike TANGIBLE property. IP does NOT exist. It doesn't exist and doesn't have any value. IP's existence is completely derived NOT from the laws of nature and physics but from laws enacted to grant government enforced monopolies on the use of ideas and expressions. What government creates through law can be amended by law (or liberal activist judges) to reflect the evolving pace of technological innovation, communications, and pace of knowledge acquisition in general.

I'm for a marketplace that is freed from the shackles of an antiquated 19th century formulation of copyrights and patents so that the great power of a free people can be more effectively unleashed to innovate, create works, create derivative works and create other products and services. By unleashing the 21s century creative engine economic activity in general will be increased many times, wealth accumulation of free individuals will be spurred to even greater heights and that wealth creation will benefit the entire world, including the undeveloped/underdeveloped countries.

You are for monopoly protectionism of ideas and expressions beyond that which is needed to spur innovation. The result is a loss of innovation for all in order to transfer more than fair compensation to a group of individuals with the resources to control the most high paid lawyers. That's not free market and its not for the benefit of either innovation or the higher good of the people/economy as a whole.

Says the "Dog"
3.9.2007 2:30pm
American Psikhushka (mail) (www):
Max-

I think AP totally (and perhaps, intentionally) misses one important aspect: reducing patent and copyright protections does not mean any forced TAKINGS by the state. It means a reduction of PROTECTION provided by the state.

Analogy to physical property: The government doesn't force you to hand bags of money to the public, but it won't stop them if they are taking it without your permission.(Theft) Is there a difference? Technically, but not from the standpoint of the intellectual property holder. But its still property redistribution, by government inaction rather than action. And it is still rewarding the individual takers with value that they didn't create.

Which property rights are recognized by the state (by its legal system) and are granted legal protection, at the margins, is merely a policy matter.

"Merely" a policy matter? Property rights are the foundation of capitalist societies. And likely the foundation of any successful, large, long-term economy, since a lack of property rights seem to be the downfall of all other economic systems. It is hard to overemphasize the importance of property rights, so it seems a little strange to claim they are "merely" a policy matter.

Is it worth taxpayer's expense to pay for enforcing extended Disney copyrights or collection of RIAA's court awards? Should society finance more litigation rather than creative activity?

Since we're talking about property rights, one of the main reasons society exists and one of its main purposes, the answer is an emphatic yes to both. The choice you frame between litigation and creation is a little off. A more accurate choice might be between protecting property rights and value creation, thus encouraging creation and making it possible, and barely being able to feed oneself (and often starving) on a collective farm.
3.9.2007 6:27pm
American Psikhushka (mail) (www):
New World Dan-

As to "value creation", there is also tremendous value in the public domain. An ideal copyright law, in my mind, is one which puts the greatest number of the highest quality works in the public domain in the least amount of time.

Well if the property is really that valuable, why should the public get this private property for free? If the creators that claim they have to get access to this work are going to create so much value, why can't they purchase the property, like any other raw material that is purchased to manufacture a product?

A couple of problems here. The first is that the PTO has been granting overly broad patents that cover the idea in the abstract rather than the specific implementation details. Next is that they grant patents over things that should be trivial to one skilled in the art of programming. Lastly, a lot of infringement claims (that I've seen) arise from independent work by engineers who have never seen or heard of the patented work. If I had the time or motivation, I could provide scores of examples of bad patents in the software genera.

I don't doubt you. So lobby for some more sane patents, especially in software.
3.9.2007 6:40pm
American Psikhushka (mail) (www):
The dog-

The Psikhushka will have time to respond to you later.
3.9.2007 6:42pm
MnZ (mail):

Well if the property is really that valuable, why should the public get this private property for free? If the creators that claim they have to get access to this work are going to create so much value, why can't they purchase the property, like any other raw material that is purchased to manufacture a product?


I suspect that there are several pratical differences that should be considered before going too far with this analogy. For example, assigning IP rights is more difficult than other forms of property. Since IP can be created out of thin air and easily replicated, it more difficult to know who actually created the IP.
3.9.2007 11:01pm
American Psikhushka (mail) (www):
JYLD-

Because patents of longer terms stifle further innovation and derivative works that could develop from numerous simultaneous competing sources once the patent expires.

Possibly, but that doesn't make it right. You are still confiscating and redistributing a private party's property through government inaction. And this could stifle innovation as well - if people become unable to recover their sunk costs in producing innovation in the first place they may cut back on it. Or at least delay it so they can cherry-pick the value that someone else created.

Not doing anything of the kind. No person has to innovate if they don't want to. Who are you to dictate that certain people should have a government granted monopoly of indefinite or way more than "limited" time periods.

Your initial comment implied that creators would have to work more intensely because you would be shortening the revenue stream they got for earlier innovations. Note that this is regardless of value creation - potentially world changing inventions would have the same period of profitability as the dubious software patents that have been mentioned. So this is pretty equivalent to setting prices. The tone of the comment also implied a labor theory of value approach - that the patent income these inventors were collecting was somehow "unearned" income.

And I don't know whether patents should be viewed as "government granted monopolies". Terming them "government granted monopolies" seems to imply that the inventors aren't creating the value that they are in fact creating. It seems to be somewhat loaded in its application, implying cronyism, meritless profit, unearned income, etc. This sort of jibes with what seems to be the standard academic approach to IP law, which appears to be addressing the subject with a collectivist/socialist bent.

Perhaps a more useful description would be that of a government recognized title to a particular piece of intellectual property for a period of time. This may be a little more accurate in that the creator of value is recognized as such and granted title to his creation. This may sound like splitting hairs, but the standard academic approach seems to frame the issue like the creator is some grubby miscreant that society is grudgingly rewarding with a "monopoly", rather than someone that is actually creating the very stuff on which society advances, and as such deserves to be rewarded for it.

No they haven't created any extended value. The government granted monopoly created the extended value.

They most certainly have created value, otherwise no one would be interested in buying their products or stealing their intellectual property.

If a 5 year monopoly isn't enough time to exploit a particular idea at market prices, then the investment of sunk costs will be driven to other ideas. That kind of evaluation goes on all the time. Nothing new there. Your comments about setting prices are completely misplaced. Nothing I've said has anything to do with setting prices.

Sunk costs are sunk already. Future investment might be driven to other areas, but the money spent already is either lost or recouped. And as I mentioned previously this penalizes the creators of the most valuable and revolutionary inventions, those that are so valuable they can produce profits over longer periods.

And shortening the period over which a revenue stream can be collected does tend to reduce the amount of revenue you collect. This approaches price setting and some may consider it de facto price setting. But it is certainly reducing the profit collected from the creator's invention.



I'm for reducing the bureaucracy and making it more effective if that can be done. But I'm not for reducing or limiting the rewards for creators beyond the current system.

All your talk about collectivism presumes a government command. Market forces will make patent lawyers go elsewhere if the patent laws are modernized out of the hand powered printing press era in which they are currently stuck.

There is a government command: You cannot take action against those using your intellectual property after a certain time period. And do we want patent lawyers to go to other areas if this a result of our property rights being eroded?

They are not limited. Copyrights are virtually unlimited, and patents are 3 times longer than necessary in the current 21st century economy. So the assertion they are "limited" reflects a lack of understanding or credulity.

They are limited because a patent is not granted for every application - an invention has to be significantly new and/or different for a patent to be granted. So not all intellectual property or innovation is protected, therefore it is limited.

Further, patents don't have an exception for independent creation. If IBM had patented instead of just copyrighted its BIOS code for the original PC, it would have been IMPOSSIBLE for the clone PC market to spring into existence with a huge resulting drag on the move in the marketplace to lower priced more powerful PC's. The PC revolution might have been delayed 5 to 10 years at huges losses to the rest of the economy.

You're making a lot of assumptions here. Apple might have shifted into the business market, or another standard could have been created. Perhaps the Commodore 64/Amiga platform would have taken off. This is all speculation.

They no longer ensure a fair return for innovation. Now they ensure compensation far beyond, decades beyond, centuries beyond, the time periods necessary to spur innovation. Instead they are weapons used to club payments from others who wish to innovate and create for the good of themselves and others.

Come on now. There are people out their that do intentionally rip off other people's ideas and make money of them. That is stealing.

You are for monopoly protectionism of ideas and expressions beyond that which is needed to spur innovation. The result is a loss of innovation for all in order to transfer more than fair compensation to a group of individuals with the resources to control the most high paid lawyers. That's not free market and its not for the benefit of either innovation or the higher good of the people/economy as a whole.

See the above discussion about the use of the term "monopoly".

And note that you admit to price-setting in this paragraph. You're claiming that there is a "fair" price to be set by the government rather than the market. This is price-setting, just like in communist/socialist economies. So your statements above certainly are not "free market".
3.10.2007 6:52pm
American Psikhushka (mail) (www):
MnZ-

I suspect that there are several pratical differences that should be considered before going too far with this analogy. For example, assigning IP rights is more difficult than other forms of property. Since IP can be created out of thin air and easily replicated, it more difficult to know who actually created the IP.

Yes, there are differences. But since IP can be highly valuable it is very important that the property rights of the individuals creating it are protected. And certainly there should be some consistency - I find it odd that IP is often approached with a socialist/collectivist mindset.
3.10.2007 7:07pm