Peter picks up the thread with a discussion of IP-as-rent-seeking, or IP-as-regulation.
I’m actually what you might call an IP agnostic. I can see some situations where IP is having effects I like (especially giving unknown creators some leverage in negotiating with big content companies, for instance) but I definitely think that, whatever your IP ideal, we’ve gone way too far.
However I don’t think the particulars are nearly as important as the process for determining those particulars. As Thomas Sowell put it in Knowledge and Decisions:
The unifying theme of Knowledge and Decisions is that the specific mechanics of decision-making processes and institutions determine what kinds of knowledge can be brought to bear and with what effectiveness. In a world where people are preoccupied with arguing about what decision should be made on a sweeping range of issues, this book argues that the most fundamental question is not what decision to make but who is to make it–through what processes and under what incentives and constraints, and with what feedback mechanisms to correct the decision if it proves to be wrong.
Who decides, and under what circumstances, is more important than what they should decide.
The way Eli puts it is that good property institutions are more important than any specific property right.
If intellectual property had continued to evolve casuistically through common law courts, I don’t think we’d be in the situation we’re in. But the Copyright Act of 1976 ruined this centuries-old dynamic, probably forever. Now the particulars must be determined by statute, and there’s a big central law-making body vulnerable to rent-seeking from industry. As a result we get insane scenarios like copyright getting enforced as criminal law instead of civil law, and civil asset forfeiture being deployed to destroy suspected offenders before they even go to trial.
The debate should not, in my opinion, focus on what particular form we believe intellectual property should take. The debate should center on what procedural reforms should go into place in order to move us towards a healthier process of determining the particulars.
3 thoughts on “Determining What Intellectual Property is and Should Be”
This sounds a lot like the phenomenon of performative speech acts: the right person in the right place at the right time uttering the right words. Doing so makes it so, as long as we all agree that it is so.
The funny thing is that economists want to say it is more hard and structural than that implies, but you’re absolutely right.
The trick to performative speech acts is the last bit: as long as we agree that it is so. That can be accomplished in many ways, most of them coercive. Shotgun weddings, for example. Taxing authority is another. Good fences are less coercive.
This is where Peter’s observations are bang on: how do you institutionalize something that can’t be gripped in the hand or stood upon with the feet? Or built or cut down, etc…