Lawyer Terry Hart, who we linked to last month for his discussion about whether or not it was okay to call infringement theft
has now written another piece arguing that those of us who point out that copyright is not property
may also be making a mistake. Specifically, he points to a recent paper by Christopher Newman, which suggests that the problem might be that we don't treat copyright enough like property
, and that if we treated it even more like property, many of the problems with copyright law, specifically in the area of derivative works, would be more efficiently handled. In many ways, Newman's paper is quite similar to the argument of Bessen and Meurer in the patent realm
. Their research details how much the patent system is hindering innovation, and they chalk up the problem to the fact that patents are not enough like property, in that the boundaries are not clearly defined. Newman appears to take a similar position, with a few more specifics having to do with copyright.
At a first glance, there is definitely something compelling about this argument (in both the patent and copyright realms). The lack of clear boundaries in either is, certainly, part of the problem because it allows the copyright and patent holders to try to expand their ability to exclude well beyond what many people feel is reasonable or economically justifiable. So, the argument goes, if the boundaries could be more properly calibrated, and
clearly stated, it would do away with the worst abuses of each system.
In the end, though, I find neither argument convincing. Both are predicated on the idea that property rights, when properly defined with clear boundaries, lead to the more efficient allocation of resources. This is, of course, the fundamental rationale behind economics and property rights. The problem? They leave out an important condition: property rights are about the efficient allocation of resources in the presence of scarcity
. The real reason for property rights was to handle the allocation of scarce
resources. And, in fact, property rights do a pretty efficient job of that. The problem is that when the resource isn't scarce, allocation is not the problem any more. Putting property rights on non-scarce items doesn't make it more efficient, it makes it less efficient. It's telling, then, that Newman's paper makes no mention of either abundance or scarcity.
That's not to say the analysis provided in both Newman's paper or Bessen and Meurer's book isn't interesting and worth reading, but the fundamental error of not recognizing the different fundamental issues when dealing with scarce goods and abundant goods means that the solutions presented in each seem to be answering the wrong question, set up by a faulty assumption concerning the nature of property rights.
The reason that we point out that copyright and patents should not be considered property is not because we believe, as Hart implies, that thinking that way only papers over the problems of copyright, but that, fundamentally, copyright and property rights serve exceptionally different purposes. Could clearer boundaries improve things at the margin? Perhaps, though I doubt how effective it can really be. But, focusing on property rights as a "solution" is tackling the wrong problem. We don't need more efficient allocation of creativity -- it can already be allocated perfectly efficiently, since you can never run out of a particular (digital) work. So aiming for a better property rights regime, by definition, can only serve to limit that efficient allocation and make it less efficient