Until a few years ago, intellectual property was considered a dull topic. But today intellectual property issues have become highly politicized and controversial.
One reason is the fact that egalitarian activists have seized upon intellectual property issues as a cause celebre, suggesting that intellectual property rights are a prime culprit for what they view as imperfections of the information economy.
One of the commonly used bits of rhetoric by IP critics is that intellectual property policy needs to be “balanced.” But the rhetoric they use and the solutions they propose would result in a system that is far out-of-balance, to the detriment of innovation and creativity.
Domestically, these IP critics make a run every legislative session at undoing the Digital Millenium Copyright Act (DMCA), a law that has done remarkably well at dealing with IP issues in the digital world, and has withstood multiple court challenges.
These critics also advocate tilting the playing field further to the benefit of generic pharmaceutical copiers and against the innovator companies themselves, forgetting or ignoring that without original innovation, there isn’t anything to copy.
Internationally, IP critics have spent years trying to persuade developing countries to test the boundaries of the IP system by issuing compulsory licenses on pharmaceuticals, and finally succeeded late last year when the military dictatorship of Thailand issued compulsory licenses not only for necessary AIDS medications, but also for a whole host of popular pharmaceutical products.
If the goal really is a “balanced” IP system, remember that the way we balance seemingly conflicting economic needs and desires is through markets, property rights, and the rule of law.
If I went into a grocery store and left with an armful of goods without paying, or if after I entered the store I was thrown up against the wall and robbed of my wallet, our relationship would not be balanced.
It’s no different with intellectual property. Because the IP system is based on property rights and rule-of-law, it has done an incredible job of balancing the needs of all parties involved—ensuring that creators are highly incentivized to continue to innovate, and making sure that consumers have wide access to creative goods.
But when a country can just take whatever patents it wants, or college students can take whatever songs or movies they want, or a company can infringe a patent without fear of injunction, property rights are undermined, markets are destroyed, and the innovation system is in danger.
Innovation comes first, and access logically follows. The public cannot access that which doesn’t yet exist. While consumer access to movies, music, books and medicines are critical, if in the name of improving access we destroy the rewards to innovation in the first place, we’ll find that the result is a system out of balance, and we will all lose as a result.