Seldom do you imagine a slumberous mid – week late afternoon leading to desultory facebook browsing to be a fruitful endeavour. A cursory glance at the G.W. LL.M. group rapts my attention, for I see the words ” libertarians” and “intellectual property” in close proximity to each other (you needn’t guess my pause at the word “intellectual property“, however “libertarianism” apart from sounding music to my ears is also my dominant political and philosophical thought). Hence, the two combined together and my ecstasy knew no bounds. Also, lately apart from reading, thinking and writing on the jurisprudence of copyright law, I have been vehemently opposing an overtly protectionist copyright regime (for people interested, please read my comments to David Newhoff’s blogpost, which by the way is an excellent piece. Just to be clear, I am not an abolitionist).
Hence, the time was ripe for a discussion on the public policy rationale for protecting intellectual property from the perspective of libertarians. So after calling it a day from work, day before yesterday, I attended R Street Institute’s Panel discussion on, ” A Skeptics Guide to IP: How Should Libertarians Think About Intellectual Property?”. The event was hosted by Reason (the monthly print magazine of “free minds and free markets”) and the R Street Institute (the Washington D.C. based think-tank advocating for free markets and limited government).
The impressive panel was constituted by, my former classmate Sasha Moss from G.W. who was filling in for her senior Mike Godwin of the R Street Institute, Wayne Brough of Freedomworks , Brink Lindsey of the CATO Institute (my personal favorite free market think tank) and Eli Dourado (with whom I had an occasion to speak at length on pressing international IP policy issues prior to the start of the discussion and who was also kind enough to gift me two rare books on the jurisprudence of copyright) of the Mercatus Center at the George Mason University.
It was moderated by the editor-in-chief of Reason, Nick Gillespie .
The broader issue that the panel sought to delve into was the concept of intellectual property from a libertarian perspective. The primer to the panel discussion and the ensuing question and answer session is as follows –
(It is pertinent to note that only the primary issues have been highlighted. Complete transcript of the panel discussion can be obtained by contacting the author at email@example.com).
Issue 1: Nature of Intellectual Property – Real or regular property?
In light of the Progress Clause of the U.S. Constitution, Nick raised the issue to Eli, which goes at the crux of protecting intellectual property, Was intellectual property akin to real or regular property? Or essentially, was the Lockean theory of property applicable to IP. Eli argued that as an average guy on the street (he is anything but average!), there was a need to protect IP as any other real property (land), for rewarding labour expended on creation of a work.
My understanding of his statement is that he was aligning (if not advocating) for a “sweat of the brow“ rationale for protecting all forms of IP (patents, copyright and trademarks). Just to clarify, the “sweat of the brow” doctrine is a copyright concept and is inapplicable to patent law.
Issue 2: Copyright Term – Lengthy copyright term and it’s repercussions?
Nick raised the issue of the ever expansive copyright term and what it meant for the innovation industry. He set-forth that at the inception of the U.S.Constitution, copyright vested in original works for fourteen years. However, the copyright term as it stands to date was – life of the author + seventy years. Sasha was swift to address the issue. To my delectation, her response resonated with my own view that lengthy copyright term had a stifling affect on innovation.
Issue 3: Intellectual Property Laws – Indispensable for innovation?
Nick raised the issue of the utilitarian value of intellectual property laws – which is now being increasingly debated upon by legal scholars and economists. How instrumental were intellectual property laws in fueling innovation? To this Brink made a noteworthy point that majority of the inventions were not under patents and that they occurred independently of patents. On this point, the panel was in unison.
(This is also in consonance with Economist’s article titled, “A Question of Utility“. While many have refuted the arguments made in this article, I partially agree that the current state of patent laws are anti-consumer and do not promote innovation. Respectfully, vehement opponents of this article are the pharma lobbyists, for whom patents are nothing but a means to perpetuate their monopoly at the cost of affordable healthcare).
Coming to copyright, Nick and Eli gave the example of Wikipedia – the world’s largest online encyclopedia, to which copyright was totally irrelevant. Even in the absence of copyright protection, Wikipedia was highly successful in widespread dissemination of knowledge. (Just to clarify, Wikipedia operates on an open- source basis, meaning that the content and other media is free of charge).
Eli’s argument hit the nail on the ground when he said that people in general were using copyright for everything apart from protecting original works of art.
Issue 4: Trans-Pacific Partnership Agreement (TPP) – Imposition of US standards of IP internationally?
In light of the recently concluded and highly contentious, Trans- Pacific Partnership Agreement (TPP), a discussion on how libertarians perceived intellectual property internationally was expected. Questions revolved around the ramifications of imposition of US standards of intellectual property globally, as has been seen with the TPP. (For those of you following the IPR negotiations of the TPP, the final negotiated text of the IP Chapter was leaked by Wikileaks yesterday. Jeremy Malcom ‘s analysis on the leaked text is an informative read)
Wayne conceded that the existing regime of US intellectual property led to a wealth transfer from developing to developed countries.
Sasha specifically spoke in the context of India that eventually it would align with U.S.’s standards of IP. As an Indian, I found her position preposterous considering that India is already TRIPS compliant and is not compelled to adhere to U.S.’s standards of IP protection. Further, her remarks were particularly interesting given that just two days back Indian judiciary, which has always been accused of bias by the US rendered a decision in favor of Merck – a U.S. based pharmaceutical company. (For the recent Delhi High Court judgement, see Mint – a good read for non-lawyers, Shamnad Basheer’s analysis for lawyers and for the pharma-patent folks, the hundred and thirty three page decision is a blessing in disguise. I have skimmed through the first seventy-five pages of the decision and the chemical composition of the drugs in issue has captured my imagination!)
Issue 5: Piracy – Was it really a big deal?
Now, how can any discussion on IP not touch upon piracy. There was a unanimity amongst the panelists that piracy was not as big an issue as what was made to be one by the Washington D.C. based lobbyists. Eli specifically mentioned that the scale of piracy varied across the three sectors, journalism , video and music.
Further, Brink took a stand that any attempt to curtail private, non-commercial copying would fall hopelessly. (Now this is an important remark especially in light of the recent Ninth Circuit’s decision in Lenz v. Universal. For those interested, my analysis on the same can be found here.)
QUESTION & ANSWER SESSION
As libertarians, each panelist was asked the most pressing IP reform required in the U.S.
Sasha advocated that urgent reforms were required in the realm of statutory damages for copyright infringement. She added that massive damages for innocent acts of non-corporate infringement should be done away with (I really wonder how would the lobbyists react to this. Statutory damages is an extremely sensitive issue to them!).
Eli stressed upon the need for eliminating the US Court of Appeals for the Ninth Circuit since it was dominated by the patent bar. He further conceded that it’s status had become akin to that of the U.S. Supreme Court which severely undermined the hierarchy of judiciary.
Wayne and Brink seconded each other on the need to undo with software and business method patents.
The panel concluded in unanimity that the premise that innovation was dependent upon a stringent intellectual property regime was a flawed argument and that there were empirical studies to prove the same. This was especially true in the context of copyright, which is the last thing on the minds of true creators and artists.
Now, take the case of Mr. Navros (in the picture), as my friend describes him as a really musicophile boy, do you think that copyright is remotely on his mind while he is in a state of trance playing the flute!
(Image courtesy vests with my dear friend Andras Jokuti – who apart from being a highly astute Intellectual Property lawyer at the Hungarian Intellectual Property Office is also an internationally acclaimed photographer. To all connoisseurs of photography, his online photography exhibition is not worth missing.)
Overall, though very brief, the discussion was healthy and touched upon many pressing issues. As an Indian IP lawyer and given the stand-off between U.S. and India on latter’s IP policy, to my dismay I found the discussion especially in the context of pharma patents very shallow. Hopefully, not too distant in future, there will be an in-depth discourse on U.S’s IP policy vis-a-vis India, amongst the Washingtonian libertarians.