Academic journal article Research-Technology Management

Rethinking Intellectual Property

Academic journal article Research-Technology Management

Rethinking Intellectual Property

Article excerpt

It is, at this point, a consensus so widely shared as to represent something very like accepted fact: the Western intellectual property system is broken. The network of protections and grants that has driven creativity in Western economies since the 1 5th century no longer provides either adequate protection from infringement or a strong incentive to create. Some of the forces straining the system--overdeveloped bureaucracy, excessive litigation--must be corrected. But others--new technologies that offer radical new ways of sharing, sampling, and copying the inventions of others more quickly and efficiently than ever before; more collaborative approaches to innovation that blur the boundaries between your IP and mine; the emergence of open-source software and hardware platforms--compel us to rethink how we might best capture value from creativity and encourage its continuation.

Several key works have identified the problems with the IP system in general, and the US patent system in particular, and suggested measures to buoy the evidently sinking ship. James Bessen (the subject of this issue's Conversations interview) and Michael J. Meurer, in Patent Failure, examine the economic performance of the patent system, with mixed results. Although patents do provide some incentive to invest in R&D and innovation in some industries, in many others, they result in litigation and costly, time-consuming disputes that outweigh their benefits. The system works as it's designed to, with benefits outweighing costs, in only a few, defined sectors, such as pharmaceuticals. In The Patent Crisis, Dan L. Burk and Mark A. Lemley address this issue. Focusing on the different ways in which patents function in different industries, and the damage done by one-size-fits-all rules, they suggest that the judicial approach to patents should be tailored to address the needs and trends of particular industries, to provide appropriate incentives and guard against senseless or excessive litigation.

Adam Jaffe and Josh Lerner, in Innovation and Its Discontents, offer an analysis similar to the one summarized in James Bessen's Conversations interview in this issue: a series of legal changes and court rulings from the 1980s onward "converted the system from a stimulator of innovation to a creator of litigation," creating uncertainty that reaches backward from the patenting process to stifle the entire innovation process. Like Bessen and Meurer, Jaffe and Lerner suggest a series of systemic reforms to remove the incentives that drive excessive litigation and better define the scope of awarded patents.

Much of the discussion in RTM and related venues predictably focuses on patents. After all, these are the primary mechanisms for protecting and fueling technological innovation. However, copyright, which protects everything from cultural productions to technical user manuals, is also struggling. Indeed, the copyright system has already been through the kind of cataclysmic disruption 3D printing seems likely to wreak in the world of patents. And in the face of the media industry's mostly futile attempts to fence off its IP, the role of copyright continues to be questioned. In Copyrights and Copywrongs, Siva Vaidhyanathan argues that the Anglo-European model's punitive stance hinders cultural production and shuts out non-Western cultural traditions that not only allow but encourage borrowing from and building on earlier productions. In an article for HowlRound, the journal of the Center for the Theater Commons, Isaac Butler argues that the extension of copyright terms, from 14 years (renewable once) in the first US copyright law to 95 years or more in the current iteration, is bankrupting our cultural commons by keeping important works out of the public domain, where other artists could freely adapt and build on them.

These perspectives on copyright suggest a wider conclusion: that the root of the problem in our IP system is a faulty conception of IP rights as property rights--that IP is something we can fence off and own. …

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