17 June 2011

Two Things

Other studies also indicate a need for shorter IP terms. In “Why a Seventeen Year Patent,” C. Michael White describes the historical basis for the seventeen-year patent term and proposes shortened terms. Merges & Nelson, in “On the Complex Economics of Patent Scope,” pp. 868–70, argue that most economic models of patent scope and duration focus on the relation between breadth, duration, and incentives to innovate, without giving serious consideration to the social costs of greater duration and breadth in the form of retarded subsequent improvement.

The bottom line is that even arguments with pro-IP assumptions imply that the patent term should be cut in half and the copyright term slashed by at least 85 years (Amazon CEO Jeff Bezos favors reducing some patent terms to 3–5 years). This is one reason I have argued that any serious IP reform should include first and foremost a significant reduction in the patent and copyright terms. Unfortunately, IP reform efforts never reduce patent and copyright terms, which is one reason I have argued that these reform efforts are not serious or radical at all. [There are minor edits for sake of readability and emphasis.]

There are, I think, two things that can be done right now that would improve IP law.  The first is to do as Kinsella has noted and reduce the length of copyright and patent terms.  I’ve already addressed this, so I will simply note that a reduction in the length of terms should yield an outcome where social benefits considerably outweigh the potential costs.

The other thing that can and should be done is to make the system opt-in.  I believe this is more or less the case with patent law, in that one must actually take the time and effort to apply for a patent, but copyright law is a little bit muddled.  One can receive copyright protection for a work even if one does not register it, although one must prove the work was original.  It also appears that every intellectual creation is implicitly covered by copyright, so the system may not even be opt-out at this time.

If copyright were opt-in, then, creators would have to actively register their creation, which would help to decrease some of the system’s repetitiveness and banality.  This would also lead to a larger number of copyright-free materials, which should in turn lead to more systemic creativity.  At the very least, making copyright opt-in would reduce systemic costs and increase systemic efficiency and creativity.  It would also help consumers save money.  Small wonder, then, that talks of overhaul trend towards a more draconian definition of IP.

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