Is there any evidence — like actual data — that intellectual property protection does what we want, namely encourage creativity and innovation? This turns out to be highly controversial. And relevant when reviewing proposals that would, for example, “chang[e] the copyright regime without really understanding where the problem is.”
I recently ran across a set of papers discussing this truly fundamental inquiry in intellectual property law. The most easily accessible of these is Mark Lemley’s Faith-Based Intellectual Property, which reads almost like a personal complaint.
Lemley begins by summarizing past attempts to actually answer this question. Here’s one:
Fritz Machlup, commissioned by Congress in the 1950s to evaluate the patent system, came to the strikingly wishy-washy conclusion that if we didn’t have a patent system, the evidence wouldn’t justify creating one, but since we already had one the evidence didn’t justify abolishing it.62 UCLA L. Rev. 1328 at 1331-32
This excerpt reflects the consensus tone. Researchers don’t seem to be able to say whether the data supports the notion that intellectual property actually accomplishes what we believe it accomplishes.
Frustratingly, Lemley complains, many researchers react to this ambiguity by retreating to “moral rights theory,” the notion that intellectual property protection is simply a recognition of what you own as a matter of basic rights, the fruit of your labor. He calls out Prof. Rob Merges at Berkeley specifically:
After decades at the forefront of economic analysis of the patent system, Merges threw up his hands: “Try as I might, I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it.” While one might think that the logical thing to do if the evidence doesn’t support one’s theory is to question the theory, Merges instead observes that “through all the doubts over empirical proof, my faith in the necessity and importance of IP law has only grown.” IP rights, he decides, are Rights in the moral sense: things to which people have some intrinsic entitlement that “social utility alone is not reason enough to override.”Id. at 1336-37.
Lemley suggests that justifying IP protection solely on the basis of moral rights is deeply problematic. Intellectual Property law does not correspond well to our instincts about what intellectual labor should be awarded property rights:
We grant extremely valuable patents to accidental discoverers [citing photography and penicillin] and extremely valuable copyrights to photographers who happened to be in the right place at the right time [citing Zapruder film of JFK assassination and Reginald Denny beating that led to LA riots]. Further, we allow those rights to be enforced even against people who put more productive work into the final product than the IP owner—the companies who actually make products based on an idea sketched out by a patent troll [most lawsuits are filed against independent inventors] and the artists who remake a photo into an iconic image [discussing copyright case against Shepard Fairey].Id. at 1340.
Lemley concludes with his rather personal, and it seems well-founded, complaint:
Rather, the line I hope to draw here is between theories of IP that are responsive to evidence and those that are impervious to it. The evidentiary support for the current IP regime is dubious enough that it should prompt us to have a serious conversation as a society about when IP is serving the goals of encouraging the creation and dissemination of new content and when it isn’t.Id. at 1345.
But serious conversations are in short supply these days.