9
muokkausta
Muutokset
editoitu selkeämpään muotoon
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Teollisesta vallankumouksesta on jo aikaa, mutta immateriaalikysymyksetovat edelleen esillä. Tätä kirjaa kirjoitettaessa yhdysvaltalaistuomariJames Spencer on uhkaillut kolme vuotta sulkea laajasti käytetyn Blackberry- viestintäverkon – patenttikiistan takia.^9Eikä Blackberry ole itsekään mikään puhdas pulmunen:vuonna 2001 Blackberry haastoi oikeuteen Glenayre Electronicsin,koska kyseinen yritys loukkasi Blackberryn patenttia, joka koski push-tekniikkaa.^10
Samanlainen sota käytiin tekijänoikeuksien kanssa. Napster-palvelusuljettiin liittovaltion tuomarin toimesta heinäkuussa 2000,koska palvelussa jaettiin tekijänoikeussuojattuja tiedostoja.^11Tunteet käyvät kuuminamolemmilla puolilla. Jotkut tekijänoikeusvastaiset libertaristit käyttävät slogania “informaatio vain haluaa olla vapaa”. Toisessa ääripäässä, suuret levy- ja ohjelmistoyhtiötväittävät “maailman ilman immateriaalioikeuksia olevan maailma ilman uusia ideoita”. Osa tekijänoikeusväittelyn katkeruudesta on heijastunutStephen Manesin hyökkäyksessä Lawrence Lessigiä kohtaan. ''Stanfordin lakiprofessorin ja median suosikin LawrenceLessigin mukaan, “liikkeen täytyy alkaa kaduilta”jotta korruptoitunutta kongressia, ylikeskittynyttä mediaa jaylihintaista oikeusjärjestelmää vastaan voidaan taistella. Contrary to Lessig's rants...“Fair use” exceptions in existing copyright law...are so expansive that just about the only thing cut-and-pasters clearly can't do legally with a copyrighted work is directly copy a sizable portion of it.^12'' Certainly Lessig is no friend of current copyright law. Yet, despite Stephen Manes assertions to the contrary, he does believe in balancing the rights of producers with the rights of users: his book Free Culture speaks repeatedly of this balance and how it has been lost in modern law.^13 Like Lessig, many economists are skeptical of current law – seventeen prominent economists, including several Nobel Prize winners, filed a brief with the U.S. Supreme Court in support of Lessig’s lawsuit challenging the extension of the length of copyright. Also like Lessig, economists recognize a role for intellectual property: where lawyers speak of balancing rights, economists speak of incentives. To quote from a textbook by two prominent economists Robert Barro and Xavier Sala-i-Martin ''It would be [good] to make the existing discoveries freely available to all producers, but this practice fails to provide the...incentives for further inventions. A tradeoff arises between restrictions on the use of existing ideas and the rewards to inventive activity.^14'' Indeed, while many of us enjoy the benefits of being able to freely download music from the internet, we worry as well how the musician is to make a living if her music is immediately given away for free. While a furious debate rages over copyrights and patents, there is general agreement that some protection is needed to secure for inventors and creators the fruits of their labors. The rhetoric that “information just wants to be free” suggests that no one should be allowed to profit from her ideas. Despite this, there does notseem to be a strong lobby arguing that while it is ok for the rest of us to benefit from the fruits of our labors, inventors and creators should have to subsist on the charity of others. For all the emotion, it seems both sides agree that intellectual property laws need to strike a balance between providing sufficient incentive for creation and the freedom to make use of existing ideas. Put it differently, both sides agree that intellectual property rights are a “necessary evil” that fostersinnovation, and disagreement is over where the line should be drawn. For the supporters of intellectual property, current monopoly profits are barely enough; for its enemies currently monopoly profits are too high. Our analysis leads to conclusions that are at variance with both sides. Our reasoning proceeds along the following lines. Everyone wants a monopoly. No one wants to compete against his own customers, or against imitators. Currently patents and copyrights grant producers of certain ideas a monopoly. Certainly few people do something in exchange for nothing. Creators of new goods are not different from producers of old ones: they want to be compensated for their effort. However, it is a long and dangerous jump from the assertion that innovators deserve compensation for their efforts to the conclusion that patents and copyrights, that is monopoly, are the best or the only way of providing that reward. Statements such as “A patent is ''the'' way of rewarding somebody for coming up with a worthy commercial idea”^15 abound in the business, legal and economic press. As we shall see there are many other ways in which innovators are rewarded, even substantially, and most of them are better for society than the monopoly power patents and copyright currently bestow. Since innovators may be rewarded even without patents and copyright, we should ask: is it true that intellectual property achieves the intended purpose of creating incentives for innovation and creation that offset their considerable harm? This book examines both the evidence and the theory. Our conclusion is that creators’ property rights can be well protected in the absence of intellectual property, and that the latter does not increase either innovation or creation. They are an unnecessary evil.
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This is a book about economics, not about law. Or putdifferently, it is not about what the law is but rather what the lawshould be. If you are interested in whether or not you are likely towind up in jail for sharing your files over the internet, this is notthe book for you. If you are interested in whether it is a good ideafor the law to prevent you from sharing your files over the internet,then this book is for you. However, while this book is not about the law, somebackground on the law is necessary to understanding the economicissues. We are going to examine the economics of what has, inrecent years, come to be called “intellectual property,” especiallypatents and copyright. In fact, there are three broad types ofBoldrin & Levine: Against Intellectual Monopoly, Chapter 18of intellectual property recognized in most legal systems: patents,copyrights and trademarks. Trademarks are different in nature than patents andcopyrights: they serve to identify the providers of goods, servicesor ideas. Copying – which would be a violation of copyright – isquite different from lying – which would be a violation oftrademark. We do not know of a good reason for allowing marketparticipants to steal identities or masquerade as people they arenot. Conversely, there are strong economic advantages in allowingmarket participants to voluntarily identify themselves. While wemay wonder if it is necessary to allow the Intel Corporation amonopoly over the use of the word “inside,” in general there islittle economic dispute over the merits of trademarks. Patents and copyrights, the two forms of intellectualproperty on which we focus, are a subject of debate andcontroversy. They differ from each other in the extent of coveragethey provide. Patents apply to specific implementations of ideas –although in recent years in the U.S. there has been decreasingemphasis on specificity. Patents do not last forever: in the UnitedStates, 20 years for patents covering techniques of manufacture,and 14 years for ornamentation. Patents provide relatively broadprotection: no one can legally use the same idea, even if theyindependently rediscover it, without permission from the patentholder.^1616Copyrights are narrower in scope, protecting only thespecific details of a particular narrative – although as with the caseof patents, the scope has been increasing in recent years. Copyrightis also much longer in duration than patent – the life of the authorplus 50 years for the many signatory countries of the BerneConvention, and – in the U.S. since the Sonny Bono CopyrightTerm Extension Act – the life of the author plus 70 years.^1717In the U.S. there are limitations on copyright not present inpatent law. As Stephen Manes correctly points out in his attack onLawrence Lessig, the right of fair use allows the purchaser of acopyrighted item limited rights to employ it, make partial copies ofit and resell them, regardless of the desires of the copyright holder.In addition, certain derivative works are allowed withoutpermission: parodies are allowed, for example, while sequels arenot. In the case of both patents and copyright, from the point ofview of economics, there are two ingredients in the law: the rightto buy and sell copies of ideas, and the right to control how otherpeople make use of their copies. The first right is not controversial.Boldrin & Levine: Against Intellectual Monopoly, Chapter 19In copyright law, when applied to the creator this right issometimes called the “right of first sale.” However, it extends alsoto the legitimate rights of others to sell their copies. It is the secondright, enabling the owner to control the use of intellectual propertyafter sale, that is controversial. This right produces a monopoly –enforced by the obligation of the government to act againstindividuals or organizations that use the idea in ways prohibited bythe copyright or patent holder. In addition to the well-known forms of intellectual property– patents and copyright – there are also lesser-known ways ofprotecting ideas. These include contractual agreements, such as theshrink-wrap and click-through agreements that you never readwhen you buy software. They also include the most traditionalform of protection – trade secrecy – as well as its contractual andlegal manifestations such as non-disclosure agreements. Likepatents and copyright all of these devices serve to help theoriginator of an idea maintain a monopoly over it. We do not know of any legitimate argument that producersof ideas should not be able to profit from their creations. Whileideas could be sold in the absence of a legal right, markets functionbest in the presence of clearly defined property rights. Not onlyshould the property rights of innovators be protected but also therights of those who have legitimately obtained a copy of the idea,directly or indirectly, from the original innovator. The formerencourages innovation, the latter encourages the diffusion,adoption and improvement of innovations. Why, however, should creators have the right to controlhow purchasers make use of an idea or creation? This givescreators a monopoly over the idea. We refer to this right as“intellectual monopoly,” to emphasize that it is this monopoly overall copies of an idea that is controversial, not the right to buy andsell copies. The government does not ordinarily enforcemonopolies for producers of other goods. This is because it iswidely recognized that monopoly creates many social costs.Intellectual monopoly is no different in this respect. The questionwe address is whether it also creates social benefits commensuratewith these social costs.
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The U.S. Constitution allows Congress “To promote theprogress of science and useful arts, by securing for limited times toauthors and inventors the exclusive right to their respectiveBoldrin & Levine: Against Intellectual Monopoly, Chapter 110respective writings and discoveries.”^18Our perspective on patents andcopyright is a similar one: promoting the progress of science andthe useful arts is a crucial ingredient of economic welfare, fromsolving such profound economic problems as poverty, to suchmundane personal nuisances as boredom. From a social point ofview, and in the view of the founding fathers, the purpose ofpatents and copyrights is not to enrich the few at the expense of themany. Nobody doubts that J. K. Rowling and Bill Gates have beengreatly enriched by their intellectual property – nor is it surprisingthat they would argue in favor of it. But common sense and theU.S. Constitution say that these rights must be justified by bringingbenefits to all of us. The U.S. Constitution is explicit that what is to be given toauthors and inventors is an exclusive right – a monopoly. Implicitis the idea that giving this monopoly serves to promote theprogress of science and useful arts. The U.S. Constitution waswritten in 1787. At that time, the idea of copyright and patent wasrelatively new, the products to which they applied few, and theirterms short. In light of the experience of the subsequent 219 yearswe might ask: is it true that legal grants of monopoly serve topromote the progress of science and the useful arts? Certainly common sense suggests that it should. How is amusician to make a living if the moment she performs her music,everyone else can copy and give it away for free? Why would thelarge corporations pay the small inventor when they can simplytake his idea? It is hard to imagine life without the internet, andtoday we are all jet setters. Is not the explosion of creativity andinvention unleashed since the writing of the U.S. Constitution atestimony to the powerful benefit of intellectual property? Wouldnot the world without patent and copyright be a sad cold world,empty of new music and of marvelous new inventions? So the first question we will pose is what the world mightbe like without intellectual monopoly. Patents and copyrights havenot secured monopolies on all ideas at all times. It is natural then toexamine times and industries in which legal protection for ideashave not been available to see whether innovation and creativitywere thriving or were stifled. It is the case, for example, thatneither the internet nor the jet engine were invented in hopes ofsecuring exclusive rights. In fact, we ordinarily think of“innovative monopoly” as an oxymoron. We shall see that whenmonopoly over ideas is absent, competition is fierce – and that as aresult innovation and creativity thrive. Whatever a world withoutBoldrin & Levine: Against Intellectual Monopoly, Chapter 111without patents and copyrights would be like, it would not be a worlddevoid of great new music and beneficial new drugs. You will gather by now that we are skeptical of monopoly– as are economists in general. Our second topic will be anexamination of the many social costs created by copyrights andpatents. Adam Smith – a friend and teacher of James Watt – wasone of the first economists to explain how monopolies make lessavailable at a higher price. In some cases, such as the production ofmusic, this may not be a great social evil; in other cases such as theavailability of AIDS drugs, it may be a very great evil indeed.However, as we shall see, low availability and high price is onlyone of the many costs of monopoly. The example of James Watt isa case in point: by making use of the legal system, he inhibitedcompetition and prevented his competitors from introducing usefulnew advances. We shall also see that because there are nocountervailing market forces, government-enforced monopoliessuch as intellectual monopoly are particularly problematic. While monopoly may be evil, and while innovation maythrive in the absence of traditional legal protections such as patentsand copyrights, it may be that patents and copyrights serve toincrease innovation. The presumption in the U.S. Constitution isthat they do, and that the benefits of more entertainment and moreinnovation outweigh the costs of these monopolies. Certainly themonopolies created by patents and copyright may be troublesome– but if that is the cost of having blockbuster movies, automobilesand flu vaccine, most of us are prepared to put up with it. That isthe position traditionally taken by economists, most of whomsupport patents and copyright, at least in principle. Some of themtake the view that intellectual monopoly is an unavoidable evil ifwe are to have any innovation at all; other simply argue that atleast some modest amount of intellectual monopoly is desirable toprovide adequate incentive for innovation and creation. Our thirdtopic will be an examination of the theoretical argumentssupporting intellectual monopoly, as well as counter-argumentsabout why intellectual monopoly may hurt rather than fostercreative activity. It is crucial to recognize that intellectual monopoly is adouble-edged sword. The rewards to innovative effort are certainlygreater if success is awarded a government monopoly. But theexistence of monopolies also increases the cost of creation. In oneextreme case, a movie that cost $218 to make had to pay $400,000for the music rights.^19As we will argue at length, theoreticalBoldrin & Levine: Against Intellectual Monopoly, Chapter 112theoretical arguments alone cannot tell us if intellectual monopoly increasesor decreases creative activity. In the final analysis, the only justification for intellectualproperty is that it increases – ''de facto '' and substantially –innovation and creation. What have the last 219 years taught us?Our final topic is an examination of the evidence about intellectualmonopoly and innovation. Is it a fact that intellectual monopolyleads to more creativity and innovation? Our examination of thedata shows no evidence that it does. Nor are we the firsteconomists to reach this conclusion. After reviewing an earlier setof facts in 1958, the distinguished economist Fritz Machlup wrote ''“it would be irresponsible, on the basis of our presentknowledge of its economic consequences, to recommendinstituting [a patent system].”20”^20'' Since there is no evidence that intellectual monopolyachieves the desired purpose of increasing innovation and creation,it has no benefits. So there is no need for society to balance thebenefits against the costs. This leads us to our final conclusion:intellectual property is an unnecessary evil.Boldrin & Levine: Against Intellectual Monopoly, Chapter 113'''Comments''' We are grateful to George Selgin and John Turner, of theUniversity of Georgia Terry College of Business, for pointing out anumber of factual mistakes and imprecisions in our rendition of theJames Watt story, as it had appeared in earlier versions of thischapter and in our 2003 Lawrence R. Klein Lecture, published inBoldrin and Levine [2004]. In a recent article, Selgin and Turner[2006], also take issue with our interpretation of the facts and add afew additional ones that, in their view, contradict our vision ofJames Watt as a primary example of an intellectual monopolist. Itseems clear, even from the references quoted by Selgin and Turner,that many students of the Industrial Revolution share our view –more properly: we shared theirs. Selgin and Turner’s argument and facts do not, however,address the issues we raise about Boulton and Watt. Take theirdiscussion of the hypothetical “Watt sans patent.” ObviouslyBoulton and Watt fought hard for their patents, and obviously theyclaimed innovation would have been impossible without them. Ourpoint is another: could they have made enough money tocompensate their opportunity cost without the patent? All theevidence, including that reported by Selgin and Turner, suggeststhis is the case. In fact they make our case quite convincingly:quoting F.M. Scherer they assert that seventeen years before thesecond patent expired they, Boulton and Watt, were alreadybreaking even. In economics, “breaking even” means that youropportunity costs have been paid, and your capital has received therisk-adjusted, expected return, and Scherer is a distinguishedeconomist. Whatever profits Boulton and Watt made after that,were all extra rents due to monopoly power and, economically, notneeded to pay their opportunity costs. So, we all agree that, at leastfor the final 17 years, the patent was not serving a useful economicpurpose, hence it was damaging because it created monopolydistortions. '''Notes'''
^1 Lord [1923] p. 5-3.htm. ^2 Carnegie [1905] p. 157. ^3 Much of the story of James Watt can be found in Carnegie[1905], Lord [1923], and Marsden [2004]. Information on the roleBoldrin & Levine: Against Intellectual Monopoly, Chapter 114 role of Boulton in Watt’s enterprise is drawn from Mantoux [1905]. Alively description of the real Watt, as well of his legal wars againstHornblower – and many other – and of how he subsequently usedhis status to alter the public memory of the facts, can be found inMarsden [2004]. That Pickard’s patent was unjust is also the viewof Selgin and Turner (2006), who, like Watt, do not seem toprovide any evidence of why it was so. As both the Lord and Carnegie works are out of copyright,both are available online at the very good Rochester site on thehistory of steam power www.history.rochester.edu/steam. Laterdrafts of this chapter benefited enormously from the arrival ofGoogle Book Search, which allowed us to check so many originalhistorical sources about James Watt and the steam engine wewould have never thought possible. 4 Lord [1923] gives figures on the number of steam enginesproduced by Boulton and Watt between 1775 and 1800, while the''The Cambridge Economic History of Europe '' [1965] provides dataon the spread of total horsepower between 1800 and 1815 and thespread of steam power more broadly. However, Kanefsky [1979]has largely discredited the Lord numbers, which is why we usefigures on machines and horsepower from Kanefsky and Robey[1980]. Our horsepower calculations are based on 510 steamengines generating about 5,000 horsepower in the U.K. in 1760.During the subsequent forty years we estimate that about 1,740engines generating about 30,000 horsepower were added. Thisgives our estimate that the total increased at a rate of roughly 750horsepower each year. For 1815 we estimate about 100,000horsepower – that is, the average of the figures Kanefsky andRobey [1980] give for 1800 and 1830. This together with the35,000 horsepower we estimate for 1800 gives our estimate thatthe total increased at a rate of roughly 4,000 horsepower each yearafter 1800. Data on the fuel efficiency, the “duty,” of steam engines isfrom Nuvolari [2004b].
5 Kanefsky and Robey [1980] together with Smith [1977-78]provide a careful historical account of the detrimental impact of theNewcomen’s, first, and of Watt’s patents, later, on the rate ofadoption of steam technology. Apart from the books just quoted,information about the Hornblower’s engine and its relation toBoldrin & Levineto Watt’s are widely available through easily accessible web sites, such as Encyclopedia Britannica, Wikipedia, and so on. Some details of Hornblower’s invention may be of interest. It was patented in 1781 and consisted of a steam engine with two cylinders, significantly more efficient than the Boulton and Watt design. Boulton and Watt challenged his invention, claiming infringement of their patent because Hornblower engine used a separate condenser, and won. With the 1799 judicial decisionagainst him, Hornblower had to pay Boulton and Watt a substantial amount of money for past royalties, while losing all opportunities to further develop the compound engine. His compound steam engine principle was not revived until 1804 by Arthur Woolf. It became one of the main ingredients in the efficiency explosion that followed the expiration of Boulton and Watt’s patent. Watt’s low-pressure engines were a dead end for further development; history shows that high-pressure, non-condensing engines were the way forward. Boulton and Watt’s patent, covering all kinds of steam engines prevented anyone from working seriously on the high-pressure version until 1800. This included William Murdoch, an employee of Boulton and Watt, who had developed a version of the high-pressure engine in the early 1780s. He named it the “steam carriage” and was legally barred from developing it by Boulton and Watt’s successful addition of the high-pressure engine to their patent, although Boulton and Watt never spent a cent to develop it. For the details of this story the reader should check the on line site Cotton Times at http: Against Intellectual Monopoly//www.cottontimes.co.uk/ or Carnegie [1905, pp. 140-141]. The “William Murdoch” entry in Wikipedia provides a good summary. More generally various researchers directly connect Murdoch to Trevithick, Chapter 1who is now considered the official15“inventor” (in 1802) of the high-pressure engine. Quite plainly, the evidence suggests that Boulton and Watt’s patent retarded the high-pressure steam engine, and hence economic development, of about 16 years. 6 The story about Pickard’s patent blocking adoption by Watt is told in von Tunzelmann [1978]. 7 Thompson [1847] p. 110 and quoted also in Lord [1923]. 8 Scherer [1984] pp. 24-25.
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