A few weeks ago I was talking to Michael about intellectual property (specifically, patents and copyrights) and proposed that these things are artificial and probably completely unnecessary. Unfortunately, when challenged at the time I was unable to formulate any kind of an argument, other than, in effect, "just because something seems to have always been a certian way, or because you can't really concieve of how else it would work, doesn't mean it's correct or even necessary." Pretty weak, and not at all descriptive of how we would expect things like "innovation" or actual investment in new technologies to happen without patents, or for art and other activities, copyrights.
I've thought about the issue quite a bit more, and have not come up with any definitive answers. I have, however, put together some points of focus, questions that need to be asked, etc - organizing the problem and, I think, making the solution to the problem of "no IP" a bit easier to eventually get to.
Copyrights and patents are not that old. I believe the first patent law wasn't enacted until 1623, and the Statute of Anne was enacted in 1710. To say there was no innovation, or investment, or creation of works that would today be worth copyrighting before 1623 or 1710 seems to be incorrect. These facts don't really make any statement about the validity of copyrights or patents; You could just call them "advances in business technology" or something similar if you wanted, but I think it does demonstrate that the advance of technology does not grind to a halt without these concepts in place.
In effect, copyrights and patents are a state-created monopoly for a set period of time. But the necessity of this action has yet to be proved in any way. No one seems to think monopolies are good, so why would ones created by the state be different? Companies that create original products or works still have a period of monopoly - however long it takes for someone else to copy everything about it. In some cases, they are uncopyable - you can distribute all the CDs you want of a band, but you'd be hard pressed to form your own band, performing the songs off the CD, and draw the same crowd to your concert. For businesses, your monopoly would last as long as you could keep your invention secret, through obsfucation or trade secrets or anything other than government coercion. While I don't think that would last very long for most things, that doesn't mean that there would be no profit to be made, even after someone tried to copy you. Plenty of companys continue to compete in businesses where nothing they produce or do is covered by any IP laws, but they still find a way to profit.
I think a good (or at least popular) example of what may happen in the modern age without patents would be the software industry. Software patents are a very recent invention, and have been fraught with problems since their inception. Before their conception (at least in the US), we didn't have a shortage of creativity, new algorithims, etc, and the industry flourished. Perhaps it was just a young industry that, once it "matured" needed stronger IP laws. And of course they still benefited from copyrights if not from patents. But there is still no evidence that these things are needed. You do not need a copyright to sell people support for the software you make, nor do you need a patent on one-clicking or something equally ridiculous to compete in the marketplace. These are small examples and there may be a flood of instances where nothing would have been done without strong patent or copyright law, but I haven't heard of it.
Patents and Copyrights are, (unfortunately?) not universally recognized. The US has worked hard to push our IP laws on other countries, but it is far from complete. One statement Michael made was that places like China, who have weak to nonexistant copyright laws and patent laws, don't create anything. In regards to art, or other copyrightable material, that seems wrong. But most asian artists are forced to make their money through tours, personal appearances, and corporate sponsorship as opposed to CD sales. I cannot say if this is "good" or "bad", but I do not see a lack of innovation. With patents in china, while it is obvious they are behind technologically, I do not think it is fair to blame a lack of patent IP when looking at a huge, largely rural still communist contry in comparison to the western world. Historically, china produced a ridiculous amount of important technology, well before patents were in place. 40 years of communism, not patents, seems a much easier target for any blame on Chinas technological development.
The point of all this is really just an intellectual exercise, of course - plenty of people have said the same things I say here better. But they need to be said, and said again. Intellectual property is completely artificial, a relatively new concept, and, I'd say, unproven in its merits. The experiment to prove its merits is beyond me at this moment, but suffice to say development and creativity happened on a large scale before copyrights and patents, and I'd be hard pressed to believe it would cease if they went away tomorrow.
Good point about China and communism. I had a big argument with my dad this weekend about IP and drug patents. I proposed a law prohibiting US drug companies from selling drugs more cheaply in other countries than they sell it here, with the expectation that this would force other countries to drop their price controls, or not have drugs.
My dad said that other countries would just void the patent protection on the drugs they wanted, and then produce them domestically. Obviously, this would violate lots of treaties, but he didn't think that would be much od a disincentive.
I think your dad is exactly right - in fact, some countries are already doing that with drug patents. Patents on the international level cause a lot of problems, such as the issues with GM crops. People talk about frankenfood or whatever, but a lot of the problem is the fear of being beholden to a patent-owning company for the food you grow.
The problem then is that the US isn't enforcing its treaties fully. Perhaps it isn't optimal to enforce the treaties, but that seems like a different issue.
Monopoly is one of those subjects, where misunderstanding is the rule and confusion naturally follows.
Imagine that I make a chair, and offer it for sale. I'm not the only vendor of chairs in the world, but I am the only vendor offering that particular chair. In that sense, I am a monopolist -- a single seller of an identifiable commodity -- and, if minded, could charge any price I like for my chair. Of course, whether I could actually collect that price from some buyer is another matter.
Intellectual property is highly sensitive to this particular reading of "monopoly." A particular performance by a rock group is something only the organizers of that particular concert can offer, which makes them monopolists. (Incidentally, that's why ticket scalpers can command such high prices.) But a reduced-fidelity recording of that performance, minus the irreproducible intangibles of the event (e.g., the excitement of the crowd, the light show, the chance to see the stars in person) is obviously something many persons could produce and offer for sale, technical considerations notwithstanding. Whether it's sufficiently different from the actual concert experience to constitute a different product, not protected by copyright law, is one of the thornier questions in IP today, one that also applies to MP3 encodings of popular music.
Compare that scenario to a book, a work of fiction. Quite clearly, the reproduction of the exact product offered by the publisher is easily accomplished. Therefore, the publisher is not a natural monopolist. But copyright attempts to assure him, for a period at least, of exclusivity in vending the contents of the book. His contractual agreement with the author is based on that assurance. How would it change -- indeed, how would the behavior of authors and would-be authors change -- were that assurance to vanish completely?
IP is a minefield for these reasons, among others.
It's not a vaporous question. J. R. R. Tolkien himself was affected by it, through a bootleg edition of The Lord Of The Rings published in America by a major publishing house without his consent. Imagine if that mighty work of the imagination had never been penned, because its author could not assure himself of the credit or remuneration for it!
The whole subject deserves careful study. See this for further thoughts on reforming the worst aspects of the current system. But don't imagine that the entire institution of IP could be undone without convulsive, even catastrophic consequences.
The problem isn't solely whether JRR Tolkein would have or would not have produced the Lord of the Rings without copyright protection. The problem also becomes how many people have *not* produced derivative works that contribute to that fantasy world because intellectual property laws are so tilted in favor of the owner of these monopoly rights.
Clearly some works would be produced under a system without copyright but they would end up having a great deal more derivative works surrounding them. Would the total sum of progress be more under one system or the other? That's certainly up for grabs because the public discussion doesn't focus on the very reason we have IP laws in the first place, to advance the arts and sciences.
The government should focus efforts on measuring the advance afforded by the current system and provide a framework by which to judge IP system adjustments so that we can realistically talk about whether a change in law will advance or retard the progress in the arts and sciences. Until we come up with some agreed meta-system of judging the benefits and costs of the IP laws, we're all arguing in the dark.
I don't have a problem with IP laws in general, although I'm sympathetic to Mike's reasons for wanting to eliminate them. My strongest feeling on the matter is that current protections last far too long, and cost society far too much.
As TM Lutas points out, current laws stiffle derivative works, because they last too long. Increasing copyright protection from life-of-the-author-plus-50-years to -plus-75-years adds only a microscopic marginal incentive to create, but costs society a great deal, and it doesn't seem like a fair trade.
The lobbying for such protection is one of my least favorite things about corporations, and the problem reflects one of the biggest short-comings of Democracy: a small group with an intense interest in a matter can rob the populace blind, because each individual in the populace only has a tiny interest in the matter, and so there's little incentive to organize.
Back in the day, English publishing houses had what amounts to a legal monopoly on the publication of certian books; Each house owned, for example, the exclusive rights to publish various Dickens works basically forever. They had the exclusive rights to copy these works, but the concept of copyrights as authors rights was very young then, In the early/mid 18th century and beyond.
While the United States did adopt its own copyright statutes almost immediately after becoming a country, in regards to the works of English authors they were very much the China of today, and blatantly violated the rights both of the authors and english publishing houses. Previous to the revolution this had an excuse in that they had no idea these laws had even been passed in some cases, but this practice continued well into the 19th century.
I mention this for a few reasons. Historically, American literature of time preceding and immediately following the revolution does not have a strong reputation - while I've always felt this a European bias, could it be more related to immature IP laws? In regards to Tolkein or whoever, Shakespeare didn't have any copyrights; Until the 18th century authors barely got paid for their works, and the only concept of "copyrights" was between publishers and unlegislated. I do not know why people create art, or write in general, but I do not believe that, in most cases, the greatest art was made to wildly profit.
I agree that people do not create merely for monetary profit -- they generally enjoy the creation process, and they often want fame and recognition. In order to get recognition, they need to get their creation out in front of people. Historically, that meant publishers (and music producers, &c.), but nowadays that means the internet.
The net can provide fame and recognition without either cost or profit, which is a rather new phenomenon. Profit and fame have generally been linked, but maybe that's a thing of the past.
Profit and fame...linked? I bet that isn't true either, historically. I'm not going to trace it right now, but I'd bet the phenomenon of the famous also being rich is tied closely with the strengthening of copyright laws. Admittedly, my mind is clouded with figures like Poe or Van Gogh, who are obviously not exemplary of all artists, but Shakespeare wasn't rolling in dough either. I'm sure I could put together a very long list (Emiliy Dickenson), though a lot of my examples already are post-copyright anyway.
That was my point. Money and fame have been linked by copyright laws. You're thinking "historically" farther back than I meant.