Comments on: Policy Recommendations in the Area of Innovation, Creativity and IP http://rufuspollock.org/2010/03/08/policy-recommendations-in-the-area-of-innovation-creativity-and-ip/ Wed, 18 Jan 2012 14:17:51 +0000 hourly 1 http://wordpress.org/?v=3.1.4 By: Matt http://rufuspollock.org/2010/03/08/policy-recommendations-in-the-area-of-innovation-creativity-and-ip/comment-page-1/#comment-185400 Matt Tue, 12 Oct 2010 23:01:21 +0000 http://www.rufuspollock.org/?p=527#comment-185400 <p>Excellent points. On copyright term and the purposes of IP policy - there is little evidence that increasing copyright terms actually increases useful production or progress, or even the incentive to create. In fact, the opposite is likely so: works that have passed into the public domain provide material from which new works are created, and longer copyright terms make this material inaccessible. Thus, regardless of incentives the creative effort becomes impossible. Moreover, the owner of rights in a protected work has an incentive to undermine progress and keep new works from being created during the term of protection. This is why some patent holders have deliberately stifled even their own new inventions until near the end of their patent's life. The net result is that IP protection actually undermines innovation and creativity (and the social welfare that would have resulted from them, or from availability of the protected IP).</p> <p>In fact, the two policy goals you point to are likely aligned in many circumstances, but current and proposed law serves neither goal well. For instance, increasing penalties for "infringement," reducing the size and scope of unprotected usage rights, and increasing protection terms all serve to undermine the availability of existing works to new innovators, thereby undermining both progress and social welfare. Perhaps it is possible for IP law to balance the incentive to create with steady availability of new raw materials. If so, perhaps at that point the question might arise as to what goals will define the optimal balance. At the moment, we are so far from the balance that no goal is served.</p> Excellent points. On copyright term and the purposes of IP policy – there is little evidence that increasing copyright terms actually increases useful production or progress, or even the incentive to create. In fact, the opposite is likely so: works that have passed into the public domain provide material from which new works are created, and longer copyright terms make this material inaccessible. Thus, regardless of incentives the creative effort becomes impossible. Moreover, the owner of rights in a protected work has an incentive to undermine progress and keep new works from being created during the term of protection. This is why some patent holders have deliberately stifled even their own new inventions until near the end of their patent’s life. The net result is that IP protection actually undermines innovation and creativity (and the social welfare that would have resulted from them, or from availability of the protected IP).

In fact, the two policy goals you point to are likely aligned in many circumstances, but current and proposed law serves neither goal well. For instance, increasing penalties for “infringement,” reducing the size and scope of unprotected usage rights, and increasing protection terms all serve to undermine the availability of existing works to new innovators, thereby undermining both progress and social welfare. Perhaps it is possible for IP law to balance the incentive to create with steady availability of new raw materials. If so, perhaps at that point the question might arise as to what goals will define the optimal balance. At the moment, we are so far from the balance that no goal is served.

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