An intellectual property middle ground - part 4

In part 4 of my 3-part series, I discuss some ideas for a middle ground between strong IP protections and the needs of the information commons.

After much delay, here's part 4 in my 3-part series on intellectual property (clearly, I don't scope my writing projects very well). It's a lot easier to analyze the current structure of things, and a lot harder to suggest solutions. That makes this installment the hardest of the bunch.

In part one I discussed the economic ramifications of nanotechnology as revealed by Ray Kurzweil. In a nanotech future, most of our economy will be oriented around knowledge assets as raw production will be simple and cheap with nano-construction. This would make the information needed to construct something the essence of value. I'm sure Research in Motion would prefer a five-year limit on software patents right about now. What would this do to our economy, and how would those who oppose intellectual property respond?

In part two, I discussed the artificial nature of property in general, and how it is a tool to create the incentives that accelerate creativity in that engineered construct known as "the market economy." I noted that the software economy only really took off once software as an asset became "monetized," thus turning something that was essentially a free "add-on" to hardware into the center of gravity in the computer industry. Essentially, property rights drive creativity, and that principle applies in ownership of physical or intellectual assets.

In part three, I swung the axe the other way and discussed the importance of knowledge that is available for all the world to use at no cost. Invention is incremental, which implies there is something which came before that serves as the basis of incrementation. Tollbooths around ideas have costs, which is why intellectual property rights always come with a time limit after which that "information" is free in cost for anyone to use.

I was schizophrenic in my treatment for a reason. Both sides of the debate have valid points. They are like scientists looking at an elephant from different sides. One thinks an elephant is a beautiful creature with a long nose, ivory tusks, wavy lashes and gray, wrinkled skin. The other scientist wishes he'd chosen a career in bartending instead of elephant observation, because from his standpoint, an elephant is pretty disgusting.

Intellectual property can accelerate the creative process through financial incentives. It can also slow innovation by creating tollbooths around an idea or expression of the same.

The question is one of balance. Is it possible to maximize the incentive benefits of private property while minimizing the costs of the tollbooths? I think it is.

First, consider patents. Patents are the most direct expression of ownership of an "idea" (though even copyright has elements of that, as I'll explain later). The door to software patents was opened in the United States through a series of legal rulings in the 1990s, and Europe seems intent on following that example...eventually. I've argued strongly against software patents in the past. However, that's mostly because I limited myself to the current conception, which is 20 years for a utility patent.

20 years is too long for software patents. There needs to be some awareness of the time and money that goes into creating new innovations in software, as well as the speed with which the software economy evolves. 20 years might make sense for something that costs billions in R&D to develop, but does it really apply to software? It may on occasion, though that would be an argument for a sliding scale approach to patents versus one that awards RSA cryptographic algorithms (the result of many years of hard work and truly innovative thinking on the part of the inventors) the same length of protection as Amazon's "one click" patent (which is really a "business process" patent).

In my opinion, most software patents shouldn't last longer than five years. I don't have a scientific reason for that, but it seems enough time for a company with an interesting software idea to reap the benefits from that interesting idea before it falls into the public domain where anyone can use it. Twenty years just seems excessive, and serves as fertile ground "patent-holding companies" who produce nothing as they harvest forgotten patents and reapply them in novel ways to extract money from larger companies.

Some (such as Edward Meyers in particular, a Talkback participant) think large companies would never go for such a reform, as they benefit too much from the current system. I wouldn't be so sure. IBM, a company that files thousands of patents every year, is actively working to reform patent law. They are likely doing this in response to attacks from companies wielding patents as a weapon. To be sure, IBM wants to improve the quality of patents awarded, as that would help to moderate some risk. On the other hand, the spectacle of Research in Motion facing the complete shutdown of its profitable Blackberry business is sure to put the fear of patents into any company.

I'm sure Research in Motion would prefer a five-year limit on software patents right about now.

Copyrights are a different issue, in that they are more typically conceived as an "expression" of an idea. For instance, any number of movies can depict the zany results of a modern person sent back to the middle ages, and none of them would be considered to steal from the other barring the wholesale lifting of lines from another movie. On the other hand, the history of music is littered with bands sued for "copying" a particular sequence of notes. As pointed out by the world renowned philosopher Terry Carroll (who also happens to be my father), Former Beatles' band-member George Harrison was sued by "The Chiffons" on claims that he plagiarized the Chiffons' hit "He's so fine" for his song "My Sweet Lord." After the ruling, Harrison commented "I still don't understand how the courts aren't filled with similar cases -- as 99 percent of the popular music that can be heard is reminiscent of something or other."

Early copyright protections lasted a mere 14 years, with the option to extend it another 14. Today, 70 years is the norm, and there is always pressure to extend that limit further. When considering a proper timeframe, lawmakers need to consider the value of media that exists in the public domain versus the incentives created through copyright. Most money is made from a new song, a new movie, or a new book within the first 20-30 years of its life. Exceptions, of course, exist. Elvis is the most profitable dead musician in the world.

I want creators to be compensated, but I don't think it's necessary to compensate them (or the people that buy the rights to copyrighted work) for 70+ years. Think of the Frank Capra example I gave in part three. Global culture benefits from a movie that anyone can see use, reuse, edit and change as often as they want without having to pay for the right do so. I think the same applies to a lot of media.

Rolling back copyright periods is going to be a lot harder, however. Patent holders like IBM are fast discovering the pitfalls of the current patent system, and are advocates for change. Copyright owners, however, have little incentives to put limits on their licensing revenue stream. In that case, people with a less direct stake will need to analyze whether the "long tail" portion of licensing revenue for media assets (that is, revenue for older movies and songs) is really worth the costs associated with tollbooths around creative works.

To conclude, these ideas aren't specific policy prescriptions.  Clearly, they are too inchoate to be used as is. They drive home the notion, however, that ALL of us should be looking for something that works. Be pragmatic, not ideological, and we may end up with something that benefits all of us.

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