by Mike Masnick

Filed Under:
anachronism, copyright, history, patents

The Anachronism Of Today's Patent And Copyright Laws

from the time-to-rethink-them dept

Glyn Moody points us to an interesting post from South African lawyer Andrew Rens discussing how copyright and patent laws are strange legal anachronisms, with little actual basis, similar to the tradition of lawyers in British Commonwealth countries having to wear black robes to court:
In an important but too often overlooked essay entitled 'Intellectual Property Institutions and Panda's Thumbs' economist Paul David likened intellectual property arrangements to the thumb of the Giant Panda. The "thumb" is not a digit at all but an enlarged sesamoid bone which does enable panda’s to grasp but is mechanically limited and inefficient. David explains that copyright and patent are not carefully calibrated mechanisms for encouraging innovation in modern economies but as ill-suited contraptions. Patents and copyright have been developed from the privilegi granted by mercantilist cities in Renaissance Italy, and letters-patent wielded in patronage politics by putative absolute monarchs. The result David notes is that copyright and patent are “a mixture of the intended and unintended consequences of an undirected historical process on which the the varied interests of many parties, acting at different points (some widely separated in time and space) have left an enduring mark.”

Contemporary discourse on the "Knowledge Economy" often suggests that patent and copyright are unquestioningly appropriate amongst Moore’s Law, network effects, cDNA and nanobots. Its worth asking though whether they make any more sense than African lawyers sweltering in black robes, suits and ties in stifling (non air conditioned) court rooms.
I'd never heard of the Paul David essay, so I looked it up and you can download a copy online (unfortunately, it's a Microsoft Word doc). It's a worthwhile read:
In short, with regard to the major structural features of the institutions of intellectual property protection, one might as well accept that modern economic analysis offers little basis for resisting the conclusion that the industrial societies of the West remain "prisoners" of our particular history. It is all too easy to miss that main message by allowing oneself to be carried away with the style of intricate economic analysis characteristic of the modern literature devoted to the problem of the optimum length and scope of patent protection, or the optimum degree to which copyright should be enforced; and especially with the efforts to be more conclusive, and construct "positive" theories exposing the economic rationales of this or that particular aspect of present-day legal institutions. By focusing selectively upon specific and arresting features of the structure of protections afforded to intellectual property, and pointing to their putatively favorable consequences for social efficiency in resource allocation, a misleading impression can be conveyed that the law in this area is susceptible to easy and rapid reshaping for the purposes of enhancing economic welfare.
The paper goes into the history of patent laws, and how they were initially driven for a very different purpose -- mainly for certain countries to get access to the knowledge of other countries. That is, they would entice people with knowledge of certain industries in other countries to move, and in exchange they'd give them a monopoly. It also explains that the whole claim that early patents were about "disclosing" ideas is a "social contrivance" by modern patent system supporters -- not realizing any of the early efforts at "disclosure" were solely for countries to get inventions from other countries "disclosed" so local industries could be built up. But the key point is that our modern patent system is really just a continuation and modification of those earlier systems, with the claims that it's about encouraging innovation also being a later whitewashing of history to make them acceptable in modern society. The lack of any economic evidence that these laws actually encourage innovation is pretty problematic for patent system supporters.

Both the blog post above and the original paper it's based on are excellent reads.

Of course, when you then put it into context with this other article, by Stefan Larsson noting that copyright suffers from a path dependency, wherein historical choices lock us into future paths, it makes things even clearer. Choices made hundreds of years ago for very different reasons have more or less "locked" us into today's laws, even though nearly all of the economic research refutes the idea that either of the laws as put in place today function to serve the official purposes behind them. Yet, all of the legacy infrastructure built up around them -- and the massive industries that benefit greatly from the laws -- means that getting out of that path dependency is seen as a non-starter to many, despite the massive social and economic costs.

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    alex (profile), 11 May 2011 @ 2:19am

    Could the same not be said of most areas of law? I would guess that there's a load of legacy nonsense in contract, insurance, drug, housing, health law too.

    I agree with what you're saying and think that these things should be reconsidered with an open mind (free from existing ideas) but the legacy thing isn't actually an argument either way for the usefulness or effectiveness of the laws today. It's just a statement that the laws don't serve their original purpose.

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