A Possible IP Solution

In my previous post, I proclaimed my neutrality in the IP wars. I think there are good arguments against all IP—for the curious, I recommend Against Intellectual Monopoly by Boldrin and Levine. There are also good arguments for.

I do, however, have a suggestion, an approach that might keep most of the benefits of the current system and eliminate most of its costs. I start with copyright law, for which I think the case is clearer.

Currently, copyright provides two benefits to the holder. First, it prevents piracy—you cannot (legally) copy my book and sell it in competition with my publisher. Second, it provides the possibility of additional revenue from derivative works. That includes a translation, a movie based on a novel, a substantial quote from my work in someone else's book, and probably other things that I haven't thought of.

In my experience as an author, most of my revenue comes from the first benefit, a little from payments for translation rights, very little from any other derivative uses. My guess is that that situation is typical. On the other hand, looking at the literature on copyright law, I conclude that most of the problems come from restrictions on derivative works—qualified by the very fuzzy rules on fair use. This fits the argument I offered in the chapter on IP in my Law's Order—that the reason it made sense for copyright to be easier to get and longer lasting than patent was that it covered something for which property rules worked better, in part because the boundaries of the property were more clearly defined. I qualified that argument by saying that it applied to traditional protection against literal copying, not so much to other restrictions due to copyright law.

My proposal, then, is quite simple—abolish protection against derivative works. Copyright is infringed by a literal copy of at least a quarter of a work, where a work is anything that might be separately sold—a novel, an essay, a short story. Anything else is fair use. That rule would cost me a little revenue from translations, but not much else, and my guess is that that would be true for most authors. I am not an artist or a composer or (save on a very small scale) a computer programmer, but I suspect that a similar restriction would work for those fields as well. The result would be a slight reduction in the incentive to produce copyrightable works, a large reduction in the costs imposed by the copyright system.

Applying a similar approach to patent law is harder, because ideas have fuzzier boundaries than books—it is less clear what does or does not infringe. My current idea is that patent protection should be limited to applications of the claimed idea that are actually described in the patent application. But I would be happy to consider alternative suggestions.

And no, I am still not arguing that my versions of patent and copyright would be better than nothing—I think that's an open question. I am only arguing that they would be better than what we now have.

And yes, I'm still at the same conference. Multitasking is not one of my talents, but not all of the talks are ones I find interesting.