In the same way that there’s a useful distinction between private property and the commons, I like looking for the line between private and public intellectual property. Extreme examples are easy:
kinds of intellectual property
public: language, cathedrals, folk songs, Beowulf
private: Harry Potter, Grand Theft Auto, the formula for Lipitor
But what divides them? What’s the border that puts something on one side and not the other?
The law says one border is time: forget to renew your declared ownership of It’s a Wonderful Life and it belongs to everyone. Wait until Mark Twain’s been dead long enough and you can get Huck Finn on your Kindle for free. Don’t like paying through the nose for your nasal spray? When the patent expires you can get a cheaper knockoff, legally.
In other words, there’s a tacit assumption in copyrights and patents that says even our biggest individual accomplishments would eventually have come along without us. I buy that. Without Thomas Edison, a century later we’d probably still have managed to record sound, or light our rooms without fire.
The other assumption in the prevailing wisdom of intellectual property (“IP”) is less explicit: that it’s possible to own an idea at all. But people have wondered; here’s a quote from the same guy that gave me the title to this blog:
It is a fact, as far as I am informed, that England was, until we copied her, the only country on earth which ever, by a general law, gave a legal right to the exclusive use of an idea. In some other countries it is sometimes done, in a great case, and by a special and personal act, but, generally speaking, other nations have thought that these monopolies produce more embarrassment than advantage to society; and it may be observed that the nations which refuse monopolies of invention, are as fruitful as England in new and useful devices.
(Thomas Jefferson, letter to Isaac McPherson, 1813)
That question of whether IP law is causing more embarrassment than benefit has resurfaced recently from a few directions, and the upshot has implications for higher ed.
First, we just live in a bad century for hoarders and renters of content; ask Encyclopedia Britannica. Or remember the last snarky email you wrote and then saw take on a mortifying life of its own. Once something’s been expressed – that is, committed to form – it’s even harder for us to contain than it was for TJ. So for example, despite NBC’s earnest energy and best paid lawyers, its top SNL sketches keep turning into YouTube memes.
And what’s happening to copyrights is spreading to patents. With 3D scanning and printing, the day is coming when objects, like media content, are themselves just 1s and 0s. Picture that: your grandson sharing Legos with his friends via effortless digital duplication, the way his mom file-swapped R.E.M. songs on Napster.
At such a time, it’s worth remembering that Eli Whitney died penniless despite creating a machine that changed the world, not because the cotton gin was too complicated to defend, but because it was too simple. Why would people pay him a royalty when they could just build their own? I think we’ll be asking that a lot more often.
So, imminent digitization, or the clonability of everything. That’s a serious threat to the idea that you can own an idea.
Meanwhile, the IP business model already looks out of whack. For one, the U.S. Patent & Trademark Office struggles with an enormous backlog – now taking nearly three years from initial filing to eventual disposition, and it used to be worse.
For another, there’s a growing sense that patent law isn’t helping inventors so much as litigators. A recent article in Slate, like an older public radio series called “When Patents Attack,” surveys the landscape of patent trolls and other abusers, and makes you wonder.
The new wrinkle: universities are seeing that even when the law works, license revenue from IP, or “technology transfer,” is less than we expected – in fact often nothing at all. It’s just always been true that R&D is risky, seldom lucrative, and often better monetized by business. Yet we remain tempted by the long-shot payoffs of private-sector-style research, like intent old ladies at the slot machines.
But we shouldn’t. According to a recent Brookings Institution report, such attention and money usually end up accomplishing other things, like creating knowledge and educating students. Brookings argues that we should negotiate with the private sector less aggressively, for the sake of building longer term relationships.
It’s hard to disagree. The value is in the collaborations anyway — for our students and our faculty, for our job-hunting alumni, and for the long-term fiscal health of our institutions. The relationships remain unique, valuable, and impervious to commodification by 3D printer.
In practical terms: generally universities are better off in a client-service model than as co-investors and co-owners. The ideas that result will fly or they won’t, but either way our clients should keep them, and we should get paid. Not a fortune, but a living. In other words, we want to act less like the old lady, and more like the slot machine.