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Intellectual Property:
History and Basics
Thomas Jefferson writes a letter
On property:
“It is agreed by those who have seriously considered
the subject, that no individual has, of natural right, a
separate property in an acre of land, for instance. By
an universal law, indeed, whatever, whether fixed or
movable, belongs to all men equally and in common,
is the property for the moment of him who occupies
it, but when he relinquishes the occupation, the
property goes with it.”
Thomas Jefferson writes a letter
He continues:
“Stable ownership is the gift of social law, and is given
late in the progress of society. It would be curious
then, if an idea, the fugitive fermentation of an
individual brain, could, of natural right, be claimed in
exclusive and stable property.”
Thomas Jefferson writes a letter
Finally:
“Considering the exclusive right to invention as given
not of natural right, but for the benefit of society, I
know well the difficulty of drawing a line between
the things which are worth to the public the
embarrassment of an exclusive patent, and those
which are not.”
The Jefferson Warning
1. Intellectual property rights are not the same as
tangible property rights
2. There is no entitlement to intellectual property
rights
3. Intellectual property rights should not be
permanent
4. Intellectual property rights are monopolies over
ideas
5. Designing intellectual property rights is difficult
Thomas Babington Macaulay
• In order for books to be written, authors must
be paid through either patronage or copyright
• Patronage is rejected as a solution
• Copyright is a legal monopoly
• Monopolies create costs to society
– They tax all citizens by the high
price of goods and by the
exclusion from a line of work.
Adam Smith
The Economics of Property
• Occupation vs. ownership
– Renting vs. owning
• Rivalrous property
– One that cannot be owned by multiple
parties simultaneously
– What is not rivalrous?
• Excludable
– One where it is possible to keep people from acquiring
the property
– What is not excludable?
• Why do these distinctions matter?
Counter Arguments
• Experiences with tangible property (rivalrous
and excludable) transferred to intellectual
property
• Natural rights: It is of me
– I created it, I designed it, I thought it up, it was my
hard work
– But how long should it be yours?
• Beyond death?
Interpreting Policy
• Another issue for policy design is whether it
can be consistently interpreted and enforced
– How does society decide if you own “2 – 1 = 1”?
• What if someone already determined “1 + 1 = 2”?
– How much overlap is too much for copyright?
• Clearly more than one word, note, brush stroke?
• What do new technologies do to the
boundaries assumed by the policy?
– Consider the case of share, retweet
The Public Domain
Chapter 3
Enclosure Movement
• What is enclosure?
– Moving common property to private property
• Considered important for increasing
productivity/efficiency of resource
– Motivates longer-term planning
– Motivates investment (of money/effort to
increase productivity of the resource)
Arguments for Enclosure
• Overuse
– The “tragedy of the commons”
– Without, people “get while the getting is good”
• Enclosure movement is based on pessimism
about ability to manage commonly-owned
resources
– Is this human nature?
• If creations are free then there is no
motivation for creators
Example of Modern Enclosure
Discussion
• Moore vs. Regents of Univ. of
California
– No private property rights to
“sources”
– Rights are to the organization
identifying the …
Moore vs. Regents of California
• Focus in Boyle’s book is on right of “sources”, which are
much like the natural rights arguments not supported
by the constitution
• Facts are that
– In 1976 Moore signed consent authorizing removal of his
spleen (and provided samples)
– 1983: Moore refused to sign consent for continuing
research
– 1984: Regents received patent over process of using cell
line in production of lymphokines ($3B business over 6
year period)
– Judges found that the defendants showed that the cell line
was distinct from cells taken from Moore’s body
Legal is not the Same as Ethical
• Evidence that UC researchers asked for follow-on
samples after they realized the potential without
informing the patient
• Henrietta Lacks case
– Died of cancer in 1951
– Found that her cells could live and reproduce outside
the body (HeLa cells)
– They have spread to researchers all over the globe
• About 20 tons have been created
– Have helped with many important discoveries
– Complete genome of HeLa cells published in 2013
Economic Assumptions
• Economic (utilitarian) rationale rather than
natural right
– Need to motivate creators
– People do not own their own DNA because there
is no need for motivation to have DNA?
• Markets are needed to efficiently allocate
resources (for R&D and other creative acts)
– Property is a prerequisite for markets
Differences in Property Types (1)
• Intellectual goods are non-rival
– Cannot be overused (except for some pop music)
• But they are also viewed as non-excludable
– Once someone has an idea it cannot be removed
– It is hard to stop them from sharing it
Differences in Property Types (2)
• Ideas are made up of other ideas
– Limiting reuse will impede further creativity,
developments, etc.
– But isn’t this true for physical property too?