A case for intellectual property rights

Abstract

It has been over 12 years since the passage of the Copyright Term Extension Act (CTEA), a disputed law that has given copyright holders an extra 20 years of legal protection for their works. The law withstood a constitutional challenge and now individual authors enjoy protection for 70 years after their death while rights of corporate authors endure for 95 years. This piece of legislation is an egregious example of the ability of powerful content providers to capture policy makers, since it is hard to argue that this extension promotes justice or serves the public interest by stimulating creativity. No author is apt to be incentivized by an extra 20 years of protection after his or her death. Nor does it seem a matter of social justice to have rights with this sort of longevity, especially when the legitimate needs of future creators are taken into account. The balance between individual rights and the common good must be carefully calibrated and this law creates a critical imbalance that will be difficult to remedy. The CTEA has been demonized by many legal scholars and certainly deserves repudiation. Along with several parts of the Digital Millennium Copyright Act (DMCA) it has contributed to the copyright thicket that complicates an author’s efforts to use older copyrighted sources in a way that goes beyond the parameters of fair use. The CTEA and DMCA have become a rallying cry for opponents of intellectual property rights who come in many different stripes. An array of books by familiar names such as Lessig (Free Culture) and Boyle (Public Domain) has recently been published attacking the whole intellectual property regime and calling for systematic reform. More radical works by authors like Drahos (Information Feudalism) often seek to undermine the philosophical foundation of copyright and patent law. What most of these books share in common is advocacy for minimal protections that will provide more access to cultural goods without completely negating authorial entitlement. Rarely does one come upon a book that dares to defend exclusive intellectual property (IP) rights, as a growing number of scholars and jurists join the anticopyright bandwagon. One of the more pungent critiques to appear in recent years is Against Intellectual Monopoly. This book was written by two economists, Michele Boldrin and David Levine, who warn their readers at the outset they are two theorists ‘‘bearing radical ideas’’ (p. 15). The authors’ erudition and wit is on display throughout this well-written book as they attempt to refute the conventional justification for intellectual property rights. Along the way, Boldrin and Levine sort out the deficiencies in recent IP policy. Their basic contention is that intellectual property rights do not adequately resolve the market failure of the underproduction of public goods (i.e., goods that are non-excludable and can be easily copied) because they do not optimize social welfare. These rights lead to excessive monopoly rents and distributional inequities that should not be tolerated in a just society. Despite much sound economic analysis, the book is a strident polemic against the doctrine of property rights as evidenced by their choice of a title. The authors prefer the term ‘‘intellectual monopoly’’ to ‘‘intellectual property,’’ since patents and copyrights give creators a monopoly over an idea. All monopolies create social costs but some monopolies generate benefits that outweigh those costs. In R. A. Spinello (&) Carroll School of Management, Boston College, Chestnut Hill, MA 02467, USA e-mail: spinello@bc.edu