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Opinion | We must realize intellectual property rights allow government to monopolize ideas

Milam's Musings

By Brett Milam
On April 25, 2014

The idea of intellectual property where someone can copyright, trademark or patent an idea should be seen as an outdated concept and unnecessary to the flourishing of creativity and innovation.

William Shakespeare, the greatest and most influential writer in the history of our species, turned 450 years old on April 23. Since 1993, anyone can access "The Complete Works of William Shakespeare" on the Internet. For free. Right there on your screen.

Since procuring an iPhone, I can now say I have William Shakespeare in my pocket. If such a reality should amaze us, then the reality of intellectual property laws in the United States should equally dismay us.

Around Shakespeare's time in Europe, if you wanted to see a play, you had to pay for it. Therefore, writers could be paid. Even today, the thought of being paid to write for the public is an astounding notion.

Once this occurred, a great many writers emerged, like Christopher Marlowe, Thomas Kyd, Ben Jonson and yes, Shakespeare.

"As with much else, literary talent often remains undeveloped unless markets reward it," Scott Turow, Paul Aiken and James Shapiro noted in the New York Times.

Sometime after, in 1709, Britain enacted the first copyright laws "for the encouragement of learned men to compose and write useful books." A number of decades later, the United States Constitution also had copyright infused with it "to promote the progress of science and useful arts."

Turow, Aiken and Shapiro see this as the start of something wonderful, as the copyright market allowed authors and other creators - historians, musicians and such - to flourish under the knowledge that they were not only protected but rewarded for their labor and creative endeavors.

This is where I diverge with them. I see copyright as the antithesis to creative flourishing. Understand that Britain enacted those first copyright laws almost 100 years after Shakespeare's death.

It would seem to me, then, that getting paid for his efforts was enough to "flourish." He didn't need government copyright laws to ensure that. And it goes without saying, we saw a great many works of art manifest in the centuries prior to Shakespeare and copyright law.

Am I violating Shakespeare's "intellectual property" by reading "King Lear," perhaps my favorite of his works?

Moreover, the emergence of copyright law, especially in modern times, has more to do with protecting publishing houses, record labels and movie studios than it does with some lofty notion of protecting the creators and innovators. In essence, it is a government-granted monopoly on ideas.

As with any government-granted monopoly, larger corporations can incur the costs of dealing with intellectual property laws.

"Large firms can more readily incur the costs of both acquiring and defending a patent than can an individual or a small firm," Butler Shaffer, a teacher at Southwestern University School of Law, said.

He also noted that government agencies, like the Food and Drug Administration, also have regulations and tests, which incur further costs upon a person or business.

On the other hand, property rights do make sense because it covers the area of what is tangible, finite and scarce, unlike "ideas," which are none of these things. Protection of property rights is paramount to ensuring social cooperation.

To put it more simply, as Sheldon Richman did, you and I cannot drink the same Coke at the same time. We cannot occupy the same space at the same time - the space is finite. Ideas are different since we can have the same or similar ideas at the same time.

Richman offered this example to further elaborate on the point:

"Jones invents (and patents) the wheelbarrow and uses it on his land. He intends to produce this great new device and sell it to a world that eagerly awaits it.

Smith lawfully walks by Jones's property and watches him using the wheelbarrow, realizing this is something no one has ever seen before. If Smith goes home and, using her own materials and labor, makes a wheelbarrow from the mental image stored in her mind, what has she taken from Jones? Smith's mental image is hers."

Of course, some would argue that if Smith tried to compete with Jones in selling wheelbarrows, then she has diminished his potential sales. Thus, the role of the government seems obvious in stopping such an action in the form of patent laws.

But again, as Richman pointed out, now you're suggesting someone owns economic value or would-be profits, which makes no sense.

Sure, if someone took this editorial word-for-word and put themselves as the author, I would see that as wrong, but not in a legal sense. How can I reasonably "own" the arrangement of words in this piece and the ideas expressed?

Perhaps ending all manner of intellectual property law is a futile goal, though, not to say anything of it seeming blasphemous to people, so I would settle for reform. One reform that I think anyone could agree on is the length.

At the start of copyright law in the United States, an author could copyright their work for up to 14 years and then renew it for another 14.

Now copyright, according to the Washington Post, lasts the duration of the author's life plus an additional 70 years. As they note, this mostly seems at the behest of companies like Disney.

Polonius said to Hamlet in "Hamlet," "Though this be madness, yet there is a method in't."

You can think me mad. I will not claim ownership of the idea.


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