Event Reporter : CATO Institute’s Panel Discussion on IP and First Principles

CATO Institue

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INTRODUCTION :

Apologies for my inability to give an in – person account of CATO Institute’s Panel Discussion on Intellectual Property and First Principles . The absence to attend emanating from a clash with an important meeting.

In some of my previous posts (see here and here), I’ve mentioned about my keen interest in the jurisprudential and constitutional underpinnings of IP. Hence, I made a sincere attempt to decipher many of the issues by listening to the podcast thrice ( Absolutely no exaggeration! Prof.Epstein’s portion of the discussion is particularly intriguing to my not – so – sharpened interdisciplinary approach to IP).

Randolph J. May of the Free State Foundation, Prof. Richard A. Epstein of the NYU Law School,  Jim Harper of the CATO Institute, Eli Dourado  of the Mercatus Center, George Mason University comprised the erudite panel.  Roger Pilon of the CATO Institute was the moderator.

The panel debated on the divide between conservatives and libertarians on the conception of IP. Essentially, they probed into the fundamental question of whether IP was akin to real property? The constitutional underpinnings of IP protection were also deliberated upon.

For the sake of brevity, I’ll not delve into every argument raised. Only pertinent issues are highlighted. (Those interested can contact me for the complete transcript of the discussion).

THE PANEL DISCUSSION :

The discussion commenced with May talking about his celebrated book, ” The Constitutional Foundations of Intellectual Property” followed by Prof. Epstein’s highly interdisciplinary discourse (at the speed of a maglev bullet train) on IP protection. ( I must confess that it was beyond my feeble comprehension after the first run through of the podcast)

The discussion progressed by Harper taking a different approach to these issues, not as an IP lawyer but as an Information Policy Practitioner . It succeeded with Eli Dourado aligning with Jeremy Benthams’s utilitarian approach to IP. Rebuttals followed by Q & A session concluded the discussion.

Randolph May’s Arguments 

May, by way of reference to his book made a case that the founders of the American Constitution accepted the applicability of Lockean Theory of Property to IP. This was based on four conditional premises, which according to him influenced the Founders –

(I) Each person had the fundamental right to enjoy the fruits of his/her labor including IP.

(II) The fruits of those labor became that person’s property.

(III) Government had a right to protect that property.

(IV) Natural rights had an influence on the drafting of the Progress Clause of the Constitution.

Constitutuonal Foundations of IP

Image Courtesy : www.amazon.com

Further, he pointed out that the Founders imbibed Locke’s view that the Government’s primary purpose was to protect a person’s property including IP. He made a cursory reference to Noah Webster’s , James Madison’s and Abraham Lincoln’s views on property and it’s clout on the final version of the Progress Clause.

Remarks on post – constitutional developments and sub – war era were also made. He concluded by stating that the intellectual, constitutional and historical background viewed copyrights and trademarks as natural rights.

Professor Epstein’s Arguments 

What happens when one of the most frequently cited legal scholars is debating on a seemingly complex topic? You try to grapple with your ignorance by listening to his portion of the podcast thrice and still end up muddying the waters. Hence, I urge all readers to exercise caution while relying upon my interpretation of his arguments.

Following arguments are noteworthy –

(I) He was a sympathetic critique to May’s ( fondly addressed as Randy) natural rights underpinnings to the Progress Clause. For him, it was a matter of political construct rather than a natural one.

(II) He made a scathing remark on Locke’s Theory of Property calling it incomplete and uninspiring.

(III)  He was in favor of a utilitarian conception for protecting IP.

(IV) He was of the opinion that modern IP policy was flawed on grounds of long duration of protection.

He concluded by stating that a strong property rights system with an appropriate duration was more important as it led to reduced rents and genuine innovation. Further, IP in many ways worked better than physical property. To substantiate this, he drew a parallel between IP and real (physical) property.

Jim Harper’s Arguments

Though trained in IP law, Harper’s approached these issues as an Information Policy Practitioner, which was a breath of fresh air. Apart from his thought provoking anecdote on the stray mitten, following pertinent points were made –

(I) His approval of IP as a concept, possibly emanating from his pro – property rights approach. Though he distinguished between IP and real property.

(II) Transposing the property law concept of “abandonment” to IP. While real property was seldom abandoned, abandonment of IP was a common phenomenon.

(III) There was a goal setting problem in IP as the dividends flowing from it were not easy to determine.

(IV) Non – homicidal nature of IP  made it’s protection to many irrational.

He concluded by stating that while protection for real property was visible, same was not true for all forms of IP. Further, he called for IP protection for personal information.

Eli Dourado’s Arguments

Being a libertarian and as an ardent follower of Eli’s work, it is always a lucullan bliss to hear him. To my delight, my prognostication of his arguments were true. Following points were noteworthy –

(I) Aligning with Jeremy Bentham, he stated that IP was deep rooted in libertarian principles.

(II) Congress was not obligated to protect IP under the Progress Clause. It was a discretionary power.

Progress Clause

Image courtesy : www.valuablepatents.com

(III)  His perception on natural rights as not being something normal.

(IV) Application of alternative First Principles to IP.

(V) He was critical of the  retroactive term extension by CTEA. He viewed it as pure rent seeking under the garb of copyright protection which did not lead to the promotion of the Progress Clause.

(v) He lambasted at the role of the Patent Bar in lobbying for the creation of  Court of Appeals for the Federal Circuit. This according to him was an epitome of maneuvering the political system in favor of corporate interests. Further, more than half of patents granted in recent years were software related, which was in sharp contrast to Supreme Court precedents. (For more on this, read his essay here).

He concluded by stating that the judicial decisions had been severely manipulated in favor of IP owners.

CONCLUSION :

A yet another enlightening discussion on one of my emerging areas of interest. No formal announcement in whose favor the debate tilted was made.  However, due to my political affiliation and as Eli’s fan, I personally align to his position that strong IP protection was not necessarily innovation inducing.

May’s argument is a motivator for me to read his book ( I’ve already ordered my copy! ). Prof. Epstein’s  awe inspiring colloquy got my grey cells working really hard (after a long time I must admit! ). And  Harper’s out – of – box approach to these issues combined with witty anecdotes were music to my ears.

Overall, a healthy discussion and not worth missing particularly for those interested in the politics of IP. A piece of advice, “listen to the podcast when time is an article of abundance and when grey cells are at their active best.”

 

 

 

 

 

About Seemantani Sharma (My views are my own and they should be yours too)

Nomadic IP Lawyer. Penchant for reading, critically thinking and writing (at times ranting) about IP. Awaiting for the Eureka moment for clearing my perpetual muddled academic interest - the global politics of IP or its economics or their confluence Aspire to enrol for a Ph.D in international and comparative IP law in the next five years or so.
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