What (and Why) is Intellectual Property?

“Who owns an idea?”  If anyone does, the idea is their intellectual property (IP).  Owners of IP are entitled to use the court system to prevent others from copying (at least certain aspects of) the idea and using the copies to compete with the recognized owner.  Some of these entitlements last for a limited time; for example, a “normal” U.S. utility patent expires 20 years after its application is filed, if the owner pays the required maintenance fees.   Others do not expire after a fixed time: for example, a U.S. trademark or service mark lasts as long as the owner still uses it in commerce and files the required forms and fees with the Trademark Office.

Why should ideas be anyone’s property?  The answers for many industrialized countries, including the US and UK, are discussed at length by those who study Law and Economics.  Be aware: some writers on this topic use very arcane language that will send you to the dictionary more than once per sentence (and even then, you MIGHT NOT FIND a lot of the words!).  I’ll try to translate a few basics into standard English:

The economic reasons for turning ideas into intellectual property go something like this: New things are good because they help people develop new capabilities – to travel to new places (and get into new fights), to avoid or survive diseases and disasters (or create them for one’s enemies), and to communicate more easily with each other (whether or not anyone wants to listen).  New things are hard / expensive to create, but much easier / cheaper to copy. 

The party line is that if copycats had free rein to make and sell cheap copies of any expensive creation that caught their fancy, creators, in their frustration, would stop creating things and human development would come to a screeching halt.  My personal theory, from the perspective of someone blessed (or possibly cursed) with an often irrepressible creative streak, is a little different:  If copycats had free rein, creators would still have ideas, but they might not have the resources to turn those ideas into things (and the things into more resources).  For some reason, creativity and resources don’t often gravitate to the same people.  If they did, “starving artist” would be a contradiction in terms. 

Generally, the process goes like this: Someone thinks of an idea and looks for someone with resources who will say, “Hey!  What a great idea!  Here, have some resources and go make it happen.”  However, people with resources would usually rather invest them and get more resources, instead of giving them away.  They are much more likely to invest in a new creation if their investment is assured of bringing in a good return.  Their investments are unlikely to bring in a good return if other people make cheap copies that drive down the price.  Therefore, although the party line says intellectual property is all about benefiting creators, I think it more often does so indirectly, at one remove.  The law reassures the resource people that their investments in new creations are reasonably assured of a return, because the law will prohibit unauthorized cheap copies, at least for a while.  When the resource people are thus reassured, they are more likely to back creators.  The creators get the benefit of a warmer reception from potential backers, who may offer materials, space, marketing, and other useful things.  Eventually, if all goes well, creators receive whatever slice of the proceeds they managed to negotiate.

Some countries (for example, France and Germany) give creators legal power over their creations for reasons very different from the economic reasons discussed above, and, understandably, they ended up with a different set of creators’ rights.  Another source of legislative divergence is that the cultures of different nations have different opinions about what sorts of ideas should and should not be turned into property.  Meanwhile, proponents of global trade are trying to draft international treaties that harmonize all these different laws (ha -good luck!).  At the same time, various open-source movements are using existing IP laws to enforce licenses that seem to be the opposite of traditional IP licenses.  As the world’s different cultures find more and more opportunities to communicate and share their ideas, IP, or not IP, or what kind of IP, will raise plenty of interesting issues to follow.

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