Intellectual Property: History and Basics

Thomas Jefferson writes a letter On property: “It is agreed by those who have seriously considered the subject, that no individual has, of natural right, a separate property in an acre of land, for instance. By an universal law, indeed, whatever, whether fixed or movable, belongs to all men equally and in common, is the property for the moment of him who occupies it, but when he relinquishes the occupation, the property goes with it.”

Thomas Jefferson writes a letter He continues: “Stable ownership is the gift of social law, and is given late in the progress of society. It would be curious then, if an idea, the fugitive fermentation of an individual brain, could, of natural right, be claimed in exclusive and stable property.”

Thomas Jefferson writes a letter Finally: “Considering the exclusive right to invention as given not of natural right, but for the benefit of society, I know well the difficulty of drawing a line between the things which are worth to the public the embarrassment of an exclusive patent, and those which are not.”

The Jefferson Warning Intellectual property rights are not the same as tangible property rights There is no entitlement to intellectual property rights Intellectual property rights should not be permanent Intellectual property rights are monopolies over ideas Designing intellectual property rights is difficult

Thomas Babington Macaulay In order for books to be written, authors must be paid through either patronage or copyright Patronage is rejected as a solution Copyright is a legal monopoly Monopolies create costs to society They tax all citizens by the high price of goods and by the exclusion from a line of work. Adam Smith

The Economics of Property Occupation vs. ownership Renting vs. owning Rivalrous property One that cannot be owned by multiple parties simultaneously What is not rivalrous? Excludable One where it is possible to keep people from acquiring the property What is not excludable? Why do these distinctions matter?

Counter Arguments Experiences with tangible property (rivalrous and excludable) transferred to intellectual property Natural rights: It is of me I created it, I designed it, I thought it up, it was my hard work But how long should it be yours? Beyond death?

Interpreting Policy Another issue for policy design is whether it can be consistently interpreted and enforced How does society decide if you own “2 – 1 = 1”? What if someone already determined “1 + 1 = 2”? How much overlap is too much for copyright? Clearly more than one word, note, brush stroke? What do new technologies do to the boundaries assumed by the policy? Consider the case of share, retweet

The Public Domain Chapter 3

Enclosure Movement What is enclosure? Moving common property to private property Considered important for increasing productivity/efficiency of resource Motivates longer-term planning Motivates investment (of money/effort to increase productivity of the resource)

Arguments for Enclosure Overuse The “tragedy of the commons” Without, people “get while the getting is good” Enclosure movement is based on pessimism about ability to manage commonly-owned resources Is this human nature? If creations are free then there is no motivation for creators

Example of Modern Enclosure Discussion Moore vs. Regents of Univ. of California No private property rights to “sources” Rights are to the organization identifying the …

Moore vs. Regents of California Focus in Boyle’s book is on right of “sources”, which are much like the natural rights arguments not supported by the constitution Facts are that In 1976 Moore signed consent authorizing removal of his spleen (and provided samples) 1983: Moore refused to sign consent for continuing research 1984: Regents received patent over process of using cell line in production of lymphokines ($3B business over 6 year period) Judges found that the defendants showed that the cell line was distinct from cells taken from Moore’s body

Legal is not the Same as Ethical Evidence that UC researchers asked for follow-on samples after they realized the potential without informing the patient Henrietta Lacks case Died of cancer in 1951 Found that her cells could live and reproduce outside the body (HeLa cells) They have spread to researchers all over the globe About 20 tons have been created Have helped with many important discoveries Complete genome of HeLa cells published in 2013

Economic Assumptions Economic (utilitarian) rationale rather than natural right Need to motivate creators People do not own their own DNA because there is no need for motivation to have DNA? Markets are needed to efficiently allocate resources (for R&D and other creative acts) Property is a prerequisite for markets

Differences in Property Types (1) Intellectual goods are non-rival Cannot be overused (except for some pop music) But they are also viewed as non-excludable Once someone has an idea it cannot be removed It is hard to stop them from sharing it

Differences in Property Types (2) Ideas are made up of other ideas Limiting reuse will impede further creativity, developments, etc. But isn’t this true for physical property too?