Legal IP Protections Overrated

While there is a place for legal protection of intellectual property, the claim that strong intellectual property protections are necessary for production of valuable intellectual product in our society is not accurate.

Arguments for strong intellectual property protection proceed on the assumption that exclusive rights are necessary to generate the incentives that encourage intellectual production. However, recent events suggest that that this assumption is questionable. Many creative endeavors are flourishing without strong intellectual property protection. Examples include fashion, stand-up comedy, magic, cuisine, and software (consider Linux, Apache, Firefox). Academic research has long been conducted under a sharing regime, and even after the Bayh-Dole Act permitted universities to claim patent rights in faculty inventions, the Mertonian norm of communalism continues to exert a strong influence over academic practices. And as Eric von Hippel has amply demonstrated, users generate and share the fruits of their creativity in contexts as varied as extreme sports, surgery, library science, and commercial high-tech manufacturing.

The case for reform that this suggests is that intellectual property can be weakened, and probably should be, except where and to the extent that it is necessary to generate the incentives that encourage intellectual production.