David Berry wrote:
Since I brought up patents, I'll talk in terms of patents.
There is a perfectly reasonable case for patent abolition. There are
well-known orthodox economists who will argue for it (michele boldrin
and david levine, in particular). There are major global campaigns
around alternatives to patents applied to medicine (see Jamie Love's
CPTech site). There have been repeated studies that show that
periods of patent abolition in the past (Holland/Switzerland) had no
kind of adverse economic effects. etc.
Well, to be fair you need to broaden the analysis and ask why
intellectual property regimes are so de-rigor at the moment. Holland
between 1850 and 1890 was, to be fair, hardly living in an information
economy, and nor was Switzerland, which didn't get a patent law till
1887 (although it was extended in 1907 and 1976).
Agreed, there isn't a recent example. However, I think the increased
speed of technical and economic change since then has actually made
patents less necessary, not more (see below).
Arguing against Patent's is one thing (this is an opinion), proving
that they are unnecessary is quite another. In an economic system
whereby profit is linked to the control and ownership of information
and knowledge, I cannot see how, without intellectual property
protection /in some form/ that profit will be made.
Boldrin's argument is basically that first-adopter advantage is enough
to retain sufficient profit to motivate development, and anything more
is just a means to create oligopolies. That is, if I design a new widget
the bulk of the sales and profit will be in the initial phase following
the launch (the steep phase of the 's' curve) and that by the time
competitors have caught up I have actually made enough profit to
motivate the R&D. There is enough monopoly given by the practicalities
of production that extra legal monopoly is not needed. Not surprisingly
this is fiercely contested, although they do have quite a rigorous
analysis of this. It's obvious that one down-side would be an increased
emphasis on trade secrets.
Jamie Love's argument is two-fold:
1. Most patented work - particularly in pharmaceuticals - is work that
is done in state-funded universities and then 'claimed' by big pharma.
This kind of work should automatically generate public-domain results
which cannot legally be patented (ie. the same as software created by
government bodies in the US, which has a special legal status). In this
case profits are irrelevant.
2. It is equally possible - and overall less expensive - to motivate
pharmaceutical development by bounties for particular results; it
would simply involve rerouting some of the money spent by governments on
buying medicine at monopoly prices. In this case profits are not
removed, but probably reduced.
Therefore there will be an economic imperative (if not a political
one) to instantiate, if not strengthen patent law. And indeed, the
historical evidence seems to be that this is indeed the case.
Absolutely there is an economic imperative. But most of the imperative
comes from groups of semi-monopolies who can only work by mutual
licensing of their patents (patent pools) which are then used to lock
competitors out of the market. The economic imperative is the
maintenance of the monopoly profits of some of the worlds biggest
manufacturers (electronics, pharma, etc). You may say 'if this is so,
then we cant beat them', but I don't think think you can say 'if this
is so, it must be right'.
Arguing, on the other hand, about the limits, exceptions and balance
between the public good and private interest seems to me, at least, a
more cogent and political attainable activity. But as you say, it
depends on what Free Culture wants to be -- something I still don't
really think it has decided.
Yes, this is going to be a long process.
It is not whether I disagree with it or not, in fact this is really
a question of strategy. You see I cannot see how Free Culture can
exist without the intellectual property regime. Or rather, that our
present understanding of Free Culture is constituted by its Other.
That being the case, abolition of intellectual property law is arguing
for the abolition of Free Culture itself.
Your argument does not apply to patents, because there is no free
culture within the areas covered by patents - patents make it
impossible. Even the very limited freeness of countries like India or
Brazil to manufacture their own AIDS medicines is denied by the system.
As is the possibility of a culture of free electronic design which can
actually make it to manufacture. In the areas covered by patents there
is actually nothing to lose by taking a radical view.
The only way any elements of free culture within the patent realm can
survive is the tactic used by John Sulston et al with the human genome -
work fast enough to beat the patenters and put the result in the public
domain immediately. This is not an easily generalisable strategy.
This is different from copyright, where the inherent ambiguities can be
manipulated to create a temporary living place for free culture (ie.
copyleft).
Cheers
Graham
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