Empirical Exercise in Philosophical Underpinning of IP Legal Constraints on Digital Creativity Alex Buonassisi Feb. 3, 2015

why are we here? legal constraints on (digital) creativity IP = primary legal constraint what can the underpinning of IP tell us about the relation to creation?

why IP? 1.personality rights, natural law creation as expression of individual 2.utilitarian, economic efficiency maximize societal good promote, support creation 3.Lockean theory sweat of the brow labour + commons = property

utilitarianism, societal good utilitarianism o greatest good for greatest people o laws should maximize societal good twin, complementary objectives of IP 1. reward - compensation for creation, recoup investment 2. incent – encourage creation, profit expectation economic efficiency o facilitate economically efficient transactions o avoid free riding

utilitarianism, economic efficiency tl; dr: o IP protection = more IP creation* * more IP is good

Millar v Taylor (1769 ENG), per Willes J It is wise in any state, to encourage letters, and the painful researches of learned men. The easiest and most equal way of doing it, is, by securing to them the property of their own works.... He who engages in a laborious work, (such, for instance, as Johnson’s Dictionary,) which may employ his whole life, will do it with more spirit, if, besides his own glory, he thinks it may be a provision for his family.

Kendall v Winsor (1858 US), Daniel J It is undeniably true that the limited and temporary monopoly granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly. This was at once the equivalent given by the public for benefits bestowed by the genius and meditations and skill of individuals, and the incentive to further efforts for the same important objects.

our exercise test utilitarianism of IP protection

how?

rules goal o get most paper airplanes across classroom o 4 teams, 4 pieces of paper per team Two WorldsTeam A Innovators Team B Followers World 1 - Owntopia strong IP protection cannot be copiedcannot copy World 2 - Sharetopia no IP protection can be copiedcan copy Owntopia IP protection o any substantial similar feature

rules - process Innovators Construct PlanesOwntopia Innovator TrialSharetopia Innovator TrialFollowers Construct PlanesOwntopia Followers TrialSharetopia Followers Trial

final tally Owntopia – IP protectionSharetopia - no IP protection InnovatorsFollowersSumInnovatorsFollowersSum planes across the line distinct plane designs planes across the line o utility, efficient use of resources distinct designs o creativity, inventiveness

debrief how many designs did your team consider? innovators – how did IP protection/not influence design choices? – did you consider most, best, designs? – did you consider suboptimal designs? followers – how did the previous designs influence your design?

utility – greatest societal good with IP protectionwithout IP protection innovatorsincentive to create secure protection for best design secure protection for many designs incentive to minimize free-riders only develop sufficient design followerscopy best public design closely without infringing not create novel designs verbatim copy of best design not create novel designs what did IP protection accomplish – was it economically efficient? – did it encourage creators to make better designs? – did it encourage copiers to innovate new designs?

other evidence An Economic Review of the Patent System – 1958 US Senate Committee Report – attempt to measure benefit of patent system key finding: None of the empirical evidence at our disposal and none of the theoretical arguments presented either confirms or confutes the belief that the patent system has promoted the progress of the technical arts and the productivity of the economy.

Thank you