[E]xcuse me in advance for the language of my analytic philosophy. That said, I tend to describe the grant of limited monopoly license under similar criteria to which we grant the license to property: “Transitus(transit), Usus(use), Fructus (fruits of), Mancipio(transfer), and Abusus(consumption)”.
We can grant different rights to property. We can grant different rights to the market as well.
In intellectual property I use: Innovatio(invention), Investimus(investment), Produco(requrement for production.) . We can grant these three rights as long as we maintain the corresponding requirements – of which time is actually a poor measure.
1) ‘INNOVATIO’ : The practical utility of creating a lottery effect as a means of encouraging innovation.
– In which case, one must maintain a product in production in order to maintain the original intent. In other words, there can be no patent protection per se, merely a patent serves as prohibition on competition for the resulting products and services.
2) ‘INVESTIGATIO’ : The practical utility of creating a limited monopoly as a means of funding off-book research and development for goods not possible for the market to produce otherwise at current incentives. This is probably a much better solution to basic research than is the grant system.
– In which case it is possible to set a limited return on the limited monopoly – not just in time but also in income.
3) ‘PRODUCO’ : The moral prohibition on free riding*, and a requirement for production in order to participate in the commons (market).
– In which case the prohibition must be limited to profiting in the broadest sense, not to personal copying, for personal use. (Creative Commons for example).
*The prohibition on free riding (imposition of costs) that we evolved to prevent ‘cheating’ in parallel to our evolution of cooperation might require some explaining. We retaliate, at cost, against the imposition cost, whether it be obvious violence theft and fraud, less obvious free riding, or imperceptible violation of moral norms.
Now, some side effects are perverse and obvious:
- (a) patent trolls (our friends in Seattle for example)
(b) patents as total market prohibitions. (the rubber tires example)
(c) lawsuits the content of which we cannot construct juries capable of adjudicating. (Samsung and Apple for example).
(d) the need to defend patents even if you don’t want to in order to prevent reverse-prohibitions.
(e) The absurd costs of researching and filing and defending them.
(f) The result that it’s not the patent that secures your invention, but the financial ability to wage a lawsuit at high risk.
But some externalities are less obvious:
- (a) How would plot lines, and movie portfolios, and bookstore catalogs differ, without copyrights? How would the high arts be affected? At present, we produce almost none, and we produce almost entirely what can be considered folk arts and vaudeville at best. Wouldn’t the elimination of copyrights change arts back to a form of conspicuous elite consumption, and the product of the aristocracy rather than the proletariat? (I am more concerned about this then the other factors combined.)
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