Feb 12, JDN 2457797

I had hoped to make this week’s post more comprehensive, but as I’ve spent the last week suffering from viral bronchitis I think I will keep this one short and revisit the topic in a few weeks.

Intellectual property underlies an increasingly large proportion of the world’s economic activity, more so now than ever before. We don’t just patent machines anymore; we patent drugs, and software programs, and even plants. Compared to that, copyrights on books, music, and movies seem downright pedestrian.

Though surely not the only cause, this is almost certainly contributing to the winner-takes-all effect; if you own the patent to something important, you can appropriate a huge amount of wealth to yourself with very little effort.

Moreover, this is not something that happened automatically as a natural result of market forces or autonomous human behavior. This is a policy, one that requires large investments in surveillance and enforcement to maintain. Intellectual property is probably the single largest market intervention that our government makes, and it is in a very strange direction: With antitrust law, the government seeks to undermine monopolies; but with intellectual property, the government seeks to protect monopolies.

So it’s important to ask: What is the justification for intellectual property? Do we actually have a good reason for doing this?

The basic argument goes something like this:

Many intellectual endeavors, such as research, invention, and the creation of art, require a large up-front investment of resources to complete, but once completed it costs almost nothing to disseminate the results. There is a very large fixed cost that makes it difficult to create these goods at all, but once they exist, the marginal cost of producing more of them is minimal.

If we didn’t have any intellectual property, once someone created an invention or a work of art, someone else could simply copy it and sell it at a much lower price. If enough competition emerged to drive price down to marginal cost, the original creator of the good would not only not profit, but would actually take an enormous loss, as they paid that large fixed cost but none of their competitors did.

Thus, knowing that they will take a loss if they do, individuals will not create inventions or works of art in the first place. Without intellectual property, all research, invention, and art would grind to a halt.

That last sentence sounds terrible, right? What would we do without research, invention, or art? But then if you stop and think about it for a minute, it becomes clear that this can’t possibly be the outcome of eliminating intellectual property. Most societies throughout the history of human civilization have not had a system of intellectual property, and yet they have all had art, and most of them have had research and invention as well.

If intellectual property is to be defended, it can’t be because we would have none of these things without it—it must be that we would have less, and so much less that it offsets the obvious harms of concentrating so much wealth and power in a handful of individuals.

I had hoped to get into the empirical results of different intellectual property regimes, but due to my illness I’m going to save that for another day.

Instead I’m just going to try to articulate what the burden of proof here really needs to be.

First of all, showing that we spend a lot of money on patents contributes absolutely nothing useful to defending them. Yes, we all know patents are expensive. The question is whether they are worth it. To show that this is not a strawman, here’s an article by IP Watchdog that takes the fact that “a new study showing that academic patent licensing contributed more than $1 trillion to the U.S. economy over eighteen years” is some kind of knockdown argument in favor of patents. If you actually showed that this economic activity would not exist without patents, then that would be an argument for patents. But all this study actually does is shows that we spend that much on patents, which says nothing about whether this is a good use of resources. It’s like when people try to defend the F-35 boondoggle by saying “it supports thousands of jobs!”; well, yes, but what about the millions of jobs we could be supporting instead if we used that money for something more efficient? (And indeed, the evidence is quite clear that spending on the F-35 destroys more jobs than it creates.) So any serious of estimate of economic benefits of intellectual property must also come with an estimate of the economic cost of intellectual property, or it is just propaganda.
It’s not enough to show some non-negligible (much less “statistically significant”) increase in innovation as a result of intellectual property. The effect size is critical; the increase in innovation needs to be large enough that it justifies having world-spanning monopolies that concentrate the world’s wealth in the hands of a few individuals. Because we already know that intellectual property concentrates wealth; they are monopolies, and monopolies concentrate wealth. It’s not enough to show that there is a benefit; that benefit must be greater than the cost, and there must be no alternative methods that allow us to achieve a greater net benefit.
It’s also important to be clear what we mean by “innovation”; this can be a very difficult thing to measure. But in principle what we really want to know is whether we are supporting important innovation—whether we will get more Mona Lisas and more polio vaccines, not simply whether we will get more Twilight and more Viagra. And one of the key problems with intellectual property as a method of funding innovation is that there is only a vague link between the profits that can be extracted and the benefits of the innovation. (Though to be fair, this is actually a more general problem; it is literally a mathematical theorem that competitive markets only maximize utility if you value rich people more, in inverse proportion to their marginal utility of wealth.)

Innovation is certainly important. Indeed, it is no exaggeration to say that innovation is the foundation of economic development and civilization itself. Defenders of intellectual property often want you to stop the conversation there: “Innovation is important!” Don’t let them. It’s not enough to say that innovation is important; intellectual property must also be the best way of achieving that innovation.

Is it? Well, in a few weeks I’ll get back to what the data actually says on this. There is some evidence supporting intellectual property—but the case is a lot weaker than you have probably been led to believe.