Copyright and patents

There are few things in life more difficult to decide than what the appropriate regime is for the creation and protection of "intellectual property." I say creation to refer to the creation of the property right not the creation of the the original work. Intellectual property rights like all property rights are actually social constructions.

At one end of the scale there is an argument that strong property rights create the opportunity to be rewarded for intelectual endeavours and hence create an important incentive to intellectual pursuits.

At the other end of the scale there is the argument that knowledge itself is a social entity, that there is more to be gained by sharing the intellectual output to create more. Scientists think of this as Newton's "standing on the shoulders of giants" while economists think of it as Romer's "new growth theory."

The latest place it is emerging is in an endless series of disputes about the IP in various smartphone and tablet devices, including now the Amazon Kindle Fire. (The telco industry of course began with just such a controversy.)

This case like many others looks like a patent troll - someone who buys patents to make money by suing others for using the IP without paying a fee.

Interestingly in Australia the field of copyright saw a decision last year that a telephone directory is not an "original work." (I use that as the basis for not trying to assert copyright to certain graphs I provide at DigEcon Research. They entail a great deal of work, but aren't original work.

One wonders if the same kind of logic could be applied to patents. How could a patent "covering the act of tapping an icon on the tablet's touch-sensitive display to perform an action" be regarded as intellectual effort worthy of enshrining in a property right? Does someone want to patent pointing with your finger in a shop to indicate what you want to buy?

Someone needs to do more than fiddle at the edges with the definitions of all aspects of intellectual property. The rights created need to be limited to the minimum amount necessary to genuinely create incentives, and to eliminate prospects of pursuit of windfall gains.

And as a context-sensitive aside, Steve Jobs was renowned as a pursuer of his intellectual property rights. Not mentioned much this week was the fact that Apple twice had to pay The Beatles for the right to use the Apple logo in relation to electronic music, the issues being driven mostly by the inclusion of the MIDI interface in the Mac and later the iPod and iTunes.

Novae Meridianae Demetae Dexter delenda est