22 March 2005

IP Confusion

This is expanded from a comment I left in response to this TCS article emphasising the importance of Intellectual Property to the US economy.

Britain is also a large "producer" of IP, so I don't see a problem in dealing with the article from here on its own terms (apart from the baseball analogy; in these parts, hitting the batter with the ball is just good bowling).

Duane Freese makes points that are reasonable in themselves, but he avoids all the difficult questions.

Intellectual Property is very difficult to enforce. In a rich, orderly society like the USA or the UK, it is possible to act against sellers of unauthorised copies. It has not been possible to act against "private" breaches, such as an unauthorised public performance of a music cd at a party. Such activities have long been tolerated, despite being technical IP breaches, because the losses were low and enforcement was not practical. Another class of breach — users copying music or early computer games to tapes — was more frowned on, but still escaped legal enforcement.

Two developments have changed the situation: widespread digital hardware has made private copying easier and better, while globalisation has increased the significance of overseas jurisdictions where different enforcement policies are in use.

The domestic question is not whether authorities should attempt to enforce existing IP laws. Some people are questioning whether we should have IP at all, but that is not really a mainstream argument. The issue is that the authorities are not able to effectively enforce IP laws in all cases, and the scale of breaches that are outside the enforcable areas is growing. To reduce the volume of breaches of IP, it would be necesary to expand the reach of enforcement further into the private arena than has ever been the case in the past. This involves unprecedented police powers and loss of personal privacy, and vast government expense. This is the issue over which the "Copyfight" is being waged.

The foreign question is over countries which, through choice or necessity, take a different stance than that of the big IP producers as to what breaches of IP law can practically be acted against. Freese says should be punished for it. But for a country like Russia, where the authorities have their hands full just trying to collect taxes, imposing an IP enforcement regime like that being demanded by Freese is not remotely possible.

Finally, the breadth of IP law is such that it cannot be treated purely with generalities. The patent system is failing as patent offices and courts are unable to scale up to handle present rates of innovation. Third-world production of drugs also raises questions which deserve to be dealt with specifically. Remember that IP law has never been about absolutes (hence the time limits on copyrights and patents), but has always been subject to cost-benefit analyses that vary from one area of innovation to another.

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