‘There is a truth about creativity and invention…; it is that no complete new idea ever springs entirely of its own to the brain of any human being.” [1]
It is also true that:
· Most creation and innovation is done by a minority of the population [2]
· The success of the few successful creators/inventors inspires others; aspiring writers,
singers, film makers, artists, for instance, aim to become famous writers, singers, film makers, artists rather than someone forgotten;
· Invention typically takes time and there are many apparent paths that, without hindsight, cause inventors to waste significant effort on dead ends[3] and
· Success, with inventions or creations, often requires collaboration.
There is a valid argument that IP rights, that offer legal protection for inventors and creators for some period of time, protect a minority; for as stated above, most creation and innovation is from a small portion of the population. But if we were to dispose of patents, trademarks, copyright and other IP rights, and yet still want to promote innovation and creation, then what would we replace them with?
Contracts? This would be too unweildy and problematic.
Could you imagine a situation where when someone wants to innovate or change something they must first find the eprson whom made the original invention, and then enter into a contract with them to define the rights if and when they make a usefil improvement? Or what of a joint development when neither side knows how much effort and inventive activity the other will eventualy put in? Or who will actually come up with the key insight and have the legendary "Eureka!" moment? How would that be managed?
Furthermore, how would you encourage innovation and creation with contracts? Would we have to , give everyone a contract to innovate? That would also quickly prove unworkable - how could you manage billions of contracts?
Finally, innovation and creation are not straightforward processes and success can take years to achieve, if ever. Consider songwriter Leonard Cohen’s song Hallelujahthat is considered a classic today, yet achieved little initial success – it took nearly one and a half decades before it found a significant following.
We could therefore eliminate contract protection but if there was no legal protection in the interim period between creation and subsequent success, would people continue to innovate and create – and collaborate?
If contracts and IP rights don’t work, what then?
We could try to keep everything we have as a secret – but as the example of the Stradivarius shows (where the secret to making the greatest string instruments ever, was lost when the family died out. To this day, we have yet to create musical instruments of comparable quality), once a secret is lost it may be gone forever.
Moreover, secrecy can inhibit collaboration – which in turn retards progress or worse, costs lives. Take, for example, the case of the Chamberlen Obstretrics Forceps[4]which were used by the Chamberlen family to deliver difficult births. While thought to be originally developed around the 1630's this development was kept as a family secret and not generally-known until the 1800's. In fact, these instruments were used under conditions of extreme secrecy - only when everyone except the doctor and the mother were present, and the mother was blindfolded. How many fetal and maternal lives could this invention have saved, or how many damaged babies could have been avoided in the 150 years that these instruments ware kept secret? What improvements could have been made in those 150 years?
What if we dispensed with IP and contractual rights altogether? After all there are those who claim that in a sharing economy, IP rights are irrelevant. But does this argument hold up in light of history? Can innovation and creativity succeed wihtout a mechanism for individuals to achieve recognition and reward for their intellectual contributions? China makes a good case study in this regard.
During the Cultural Revolution China had a shared economy, with no IP legal regime to speak of – and there was little or no innovation or creativity given the latter was monopolized by the state and there was no incentive or legal protection for the former. We could go back further to look at ancient China where gunpowder, the compass, printing press, flushing toilets and paper were invented. However, as all inventiosn automatically were owned by the state, society lacked any mechanisms for individual recognition and reward. Therefore, no improvements to these inventions (e.g. the gun, advancements in printing) were ever made.
Thus there is a good argument that legal protection providing some term of protection allows a creator or inventor time to find suitable collaborators, funding, or both. Further, I argue that such protection also provides an incentive for the inventor to disclose such inventions/creations/works while simultaneously providing inventors and/or others an incentive to improve upon existing inventions.
But at the same time, it is recognized that legal protection, by itself, hardly provides a basis for any inherent value for a creation or invention, much less any incentive to innovate. More is clearly needed….
--------------------
[1] Jake Van Der Kamp, ‘To see the fallacy of Trump’s intellectual rights charge, shall we all pay China for the use of paper?‘ http://www.scmp.com/business/global-economy/article/2131071/why-trump-accusing-china-intellectual-property-theft-doesn't
[2] The Pareto principle suggests that most creations and inventions come from less than a fifth of the population.
[3] Katja Grace, ‘Why everything might have taken so long’ Thus some collaboration is often needed for knowledge to become valuable, something someone would actually pay for.
One might say that IP rights, that offer legal protection for inventors and creators for some period of time, protect a minority – but the facts are: