Intellectual Property, revisited

Mar 12, JDN 2457825

A few weeks ago I wrote a post laying out the burden of proof for intellectual property, but didn’t have time to get into the empirical question of whether our existing intellectual property system can meet this burden of proof.

First of all, I want to make a very sharp distinction between three types of regulations that are all called “intellectual property”.

First there are trademarks, which I have absolutely no quarrel with. Avoiding fraud and ensuring transparency are fundamental functions without which markets would unravel, and without trademarks these things would be much harder to accomplish. Trademarks allow a company to establish a brand identity that others cannot usurp; they ensure that when you buy Coca-Cola (R) it is really in fact the beverage you expect and not some counterfeit knockoff. (And if counterfeit Coke sounds silly, note that counterfeit honey and maple syrup are actually a major problem.) Yes, there should be limits on how much you can trademark—no one wants to live in a world where you feel Love ™ and open Screen Doors ™—but in fact our courts are already fairly good about only allowing corporations to trademark newly-coined words and proper names for their products.

Next there are copyrights, which I believe are currently too strong and often abused, but I do think should exist in some form (or perhaps copylefts instead). Authors should have at least certain basic rights over how their work can be used and published. If nothing else, proper attribution should always be required, as without that plagiarism becomes intolerably easy. And steps should be taken to ensure that if any people profit from its sale, the author is among them. I publish this blog under a by-sa copyleft, which essentially means that you can share it with whomever you like and even adapt its content into your own work, so long as you properly attribute it to me and you do not attempt to claim ownership over it. For scientific content, I think only a copyleft of this sort makes sense—the era of for-profit journals with paywalls must end, as it is holding back our civilization. But for artistic content (and I mean art in the broadest sense, including books, music, movies, plays, and video games), stronger regulations might well make sense. The question is whether our current system is actually too strong, or is protecting the wrong people—often it seems to protect the corporations that sell the content rather than the artists who created it.

Finally there are patents. Unlike copyright which applies to a specific work of art, patent is meant to apply to the underlying concept of a technology. Copyright (or rather the by-sa copyleft) protects the text of this article; you can’t post it on your own blog and claim you wrote it. But if I were to patent it somehow (generally, verbal arguments cannot be patented, fortunately), you wouldn’t even be able to paraphrase it. The trademark on a Samsung ™ TV just means that if I make a TV I can’t say I am Samsung, because I’m not. You wouldn’t copyright a TV, but the analogous process would be if I were to copy every single detail of the television and try to sell that precise duplicate. But the patents on that TV mean that if I take it apart, study each component, find a way to build them all from my own raw materials, even make them better, and build a new TV out of them that looks different and performs better—I would still be infringing on intellectual property. Patents grant an extremely strong notion of property rights, one which actually undermines a lot of other, more basic concepts of property. It’s my TV, why can’t I take it apart and copy the components? Well, as long as the patent holds, it’s not entirely my TV. Property rights this strong—that allow a corporation to have its cake of selling the TV but eat it too by owning the rights to all its components—require a much stronger justification.

Trademark protects a name, which is unproblematic. Copyright protects a work, which carries risks but is still probably necessary in many cases. But patent protects an idea—and we should ask ourselves whether that is really something it makes sense to do.

In previous posts I’ve laid out some of the basic philosophical arguments for why patents do not seem to support innovation and may actually undermine it. But in this post I want to do something more direct and quantitative: Empirically, what is the actual effect of copyrights and patents on innovation? Can we find a way to quantify the costs and benefits to our society of different modes of intellectual property?

Economists quantify things all the time, so I briefly combed the literature to see what sort of empirical studies had been done on the economic impact of copyrights and patents.

Patents definitely create barriers to scientific collaboration: Scientific articles with ideas that don’t get patented are about 10-20% more likely to be cited than scientific articles with ideas that are patented. (I would have expected a larger effect, but that’s still not trivial.)

A 1995 study found that creased patent protections do seem to be positively associated with more trade.

A 2009 study of Great Britain published in AER found it “puzzling” that stronger patents actually seem to reduce the rate of innovation domestically, while having no effect on foreign innovation—yet this is exactly what I would have predicted. Foreign innovations should be largely unaffected by UK patents, but stricter patent laws in the UK make it harder for most actual innovators, only benefiting a handful of corporations that aren’t even particularly innovative.

This 1996 study did find a positive effect of stronger patent laws on economic growth, but it was quite small and only statistically significant when using instrumental variables that they couldn’t be bothered to define except in an appendix. When your result hinges on the use of instrumental variables that you haven’t even clearly defined in the paper, something is very fishy. My guess is that they p-hacked the instruments until they got the result they wanted.

This other 1996 study is a great example of why economists need to listen to psychologists. It found a negative correlation between foreign direct investment and—wait for it—the number of companies that answered “yes” to a survey question, “Does country X have intellectual property protection too weak to allow you to transfer your newest or most effective technology to a wholly-owned subsidiarythere?” Oh, wow, you found a correlation between foreign direct investment and a question directly asking about foreign direct investment.

his 2004 study found a nonlinear relationship whereby increased economic development affects intellectual property rights, rather than the other way around. But I find their theoretical model quite odd, and the scatter plot that lies at the core of their empirical argument reminds me of Rexthor, the Dog-Bearer. “This relationship appears to be non-linear,” they say when pointing at a scatter plot that looks mostly like nothing and maybe like a monotonic increase.

This 1997 study found a positive correlation between intellectual property strength, R&D spending, and economic growth. The effect is weak, but the study looks basically sound. (Though I must say I’d never heard anyone use the words “significant at the 24% level” before. Normally one would say “nonsignificant” for that variable methinks. It’s okay for it not to be significant in some of your regressions, you know.)

This 1992 paper found that intellectual property harms poor countries and may or may not benefit rich countries, but it uses a really weird idiosyncratic theoretical model to get there. Frankly if I see the word “theorem” anywhere in your empirical paper, I get suspicious. No, it is not a theorem that “For economies in steady state the South loses from tighter intellectual property rights.” It may be true, but it does not follow from the fundamental axioms of mathematics.

This law paper is excellent; it focuses on the fact that intellectual property is a unique arrangement and a significant deviation from conventional property rights. It tracks the rise of legal arguments that erroneously equate intellectual property with real property, and makes the vital point that fully internalizing the positive externalities of technology was never the goal, and would in fact be horrible should it come to pass. We would all have to pay most of our income in royalties to the Newton and Faraday estates. So, I highly recommend reading it. But it doesn’t contain any empirical results on the economic effects of intellectual property.

This is the best paper I was able to find showing empirical effects of different intellectual property regimes; I really have no complaints about its econometrics. But it was limited to post-Soviet economies shortly after the fall of the USSR, which were rather unique circumstances. (Indeed, by studying only those countries, you’d probably conclude that free markets are harmful, because the shock of transition was so great.)

This 1999 paper is also quite good; using a natural experiment from a sudden shift in Japanese patent policy, they found almost no difference in actual R&D. The natural experiment design makes this particularly credible, but it’s difficult to generalize since it only covered Japan specifically.

This study focused in particular on copyrights and the film industry, and found a nonlinear effect: While having no copyright protection at all was harmful to the film industry, making the copyright protections too strong had a strangling effect on new filmmakers entering the industry. This would suggest that the optimal amount of copyright is moderate, which sounds reasonable to me.

This 2009 study did a much more detailed comparison of different copyright regimes, and was unable to find a meaningful pattern amidst the noise. Indeed, they found that the only variable that consistently predicted the number of new works of art was population—more people means more art, and nothing else seemed to matter. If this is correct, it’s quite damning to copyright; it would suggest that people make art for reasons fundamentally orthogonal to copyright, and copyright does almost nothing useful. (And I must say, if you talk to most artists, that tends to be their opinion on the matter!)

This 1996 paper found that stronger patents had no benefits for poor countries, but benefited rich countries quite a large amount: Increased patent protection was estimated to add as much as 0.7% annual GDP growth over the whole period. That’s a lot; if this is really true, stronger patents are almost certainly worth it. But then it becomes difficult to explain why more precise studies haven’t found effects anywhere near that large.

This paper was pretty interesting; they found a fat-tailed distribution of patents, where most firms have none, many have one or a few, and a handful of firms have a huge number of patents. This is also consistent with the distribution of firm revenue and profit—and I’d be surprised if I didn’t find a strong correlation between all three. But this really doesn’t tell us whether patents are contributing to innovation.
This paper found that the harmonization of global patents in the Uruguay Round did lead to gains from trade for most countries, but also transferred about $4.5 billion to the US from the rest of the world. Of course, that’s really not that large an amount when we’re talking about global policy over several years.

What does all that mean? I don’t know. It’s a mess. There just don’t seem to be any really compelling empirical studies on the economic impact of copyrights and patents. The preponderance of the evidence, such as it is, would seem to suggest that copyrights provide a benefit as long as they aren’t too strong, while patents provide a benefit but it is quite small and likely offset by the rent-seeking of the corporations that own them. The few studies that found really large effects (like 0.7% annual GDP growth) don’t seem very credible to me; if the effect were really that large, it shouldn’t be so ambiguous. 0.7% per year over 25 years is a GDP 20% larger. Over 50 years, GDP would be 42% larger. We would be able to see that.

Does this ambiguity mean we should do nothing, and wait until the data is better? I don’t think so. Remember, the burden of proof for intellectual property should be high. It’s a fundamentally bizarre notion of property, one which runs against most of our standard concepts of real property; it restricts our rights in very basic ways, making literally the majority of our population into criminals. Such a draconian policy requires a very strong justification, but such a justification does not appear to be forthcoming. If it could be supported, that 0.7% GDP growth might be enough; but it doesn’t seem to be replicable. A free society does not criminalize activities just in case it might be beneficial to do so—it only criminalizes activities that have demonstrable harm. And the harm of copyright and patent infringement simply isn’t demonstrable enough to justify its criminalization.

We don’t have to remove them outright, but we should substantially weaken copyright and patent laws. They should be short-term, they should provide very basic protection, and they should never be owned by corporations, always by individuals (corporations should be able to license them—but not own them). If we then observe a substantial reduction in innovation and economic output, then we can put them back. But I think that what defenders of intellectual property fear most is that if we tried this, it wouldn’t be so bad—and then the “doom and gloom” justification they’ve been relying on all this time would fall apart.

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