by Michele Boldrin (Author), David K. Levine (Author)
# Hardcover: 312 pages
# Publisher: Cambridge University Press; 1 edition (7 Jul 2008)
# Language English
# ISBN-10: 0521879280
# ISBN-13: 978-0521879286
£17.99 $30.00
This book was quite a while in its gestation - parts of it were first written in 2002 with the ideas being tested and revised in the light of the evidence before it was published in 2008. Six years in gestation for a book is not as long as the twenty years taken by Charles Darwin in "The Origin of Species". But Boldrin and Levine's book could have just as revolutionary an impact amongst high church priests of intellectual property protection as Darwin's work did on the scientific establishment a century and a half ago.
The heresy which Boldrin and Levine put forward is that copyright and patent protections are not the engines of growth in our civilization. They do not protect creative people and they materially harm society and economic growth. We would all be better off if they were to be immediately abolished.
The arguments set out in the book are not familiar to intellectual property lawyers - they turn not on interpretation of statutes but on economics. What is the public good which comes from copyright protection? Does it cause more copyright works to be produced? Does it fairly reward the creative for their contribution to society? Would the creative person still flourish and be adequately rewarded if it were abolished?
The answers to all these questions are supplied by economic evidence - and they all confirm the revolutionary thesis of the authors: that copyright protection is harming society and should be abolished.
Let's look at one example - the expansion of the copyright term. Here I can add to matters set out in the book from my own private researches into the matter.
Copyright under the Statue of Anne in 1710 used to be for a period of 14 years. Through lobbying during the nineteenth century it was expanded to finally be granted for a period of the life of the author plus fifty years. What used to be a well known quote from Thomas Macaulay MP from the debate in the UK Parliament on copyright has been forgotten in recent years "The principle of copyright is this. It is a tax on readers for the purpose of giving a bounty to writers. The tax is an exceedingly bad one; it is a tax on one of the most innocent and most salutary of human pleasures; and never let us forget, that a tax on innocent pleasures is a premium on vicious pleasures."
Boldrin and Levine's thesis develops this concept - we are all potential creators today, reading the works of an author inspires us to produce our own works and the requirement to obtain copyright clearance for works which make use of existing works and pay royalties for such reuse is an impediment on economic and social development.
But back to the expansion of copyright term. For decades the nations which today make up the European Union were part of the Berne Union and gave protection for literary works for the life of the author plus fifty years - the added fifty being based upon the concept of allowing the authors immediate children to benefit from the intellectual property their ancestor had bequeath to them. The problem came about in West Germany (as it then was) in the 1960s. A number of authors groups started pressing for the adoption of a concept called "moral rights" in a proposed revision of copyright law. Moral rights, which are French in origin and alien to the Common Law, arise from the fact that copyright in civil law countries is based upon the concept that the author (or auteur - the term is now used by filmmakers whose individual style and complete control over all elements of production give a film their personal and unique stamp) had a right to paternity (the right to have his name forever associated with the work) and the right to integrity (the right to have complete control over any and all changes in the way that his work is presented).
The West German Parliament was faced with a complex lobbying issue. On the one side were authors who wanted an expansion in their rights to mirror the French jurisprudence. On the other side were publishers and newspaper owners who did not want "works for hire" to be personalized and protected in the manner suggested since they could see that this was likely to have a negative economic impact. The legislative solution was a compromise - they decided in 1965 not to give the authors "moral rights" but instead gave them an expanded copyright term - the life of the author plus seventy years.
Race forward a couple of decades to the newly expanded European Union. A process begins to create a federal Europe. Barriers to free movement of goods are removed. There is meant to be free movement of services - so that consumers in one country can buy services such as insurance from providers in any other member state of the European Union.
Someone noted that there is a divergence in copyright term in the European Union. All the then member states protect works for the life of the author plus fifty years while West Germany alone protects works for the life of the author plus seventy years. Immediately the copyright publishers suggested this as something in need of harmonisation. But instead of harmonising down to the norm, all the member states were lobbied to harmonise up to the unique German standard. As a result Adolf Hitler's "Mein Kampf" which was going out of copyright in 1995 was suddenly revived and protected as a copyright work throughout the European Union. Gilbert and Sullivan operettas whose copyright had been controlled by the stultifying hand of the D'Oyly Carte Opera Company found themselves in a position to once again stop anyone else performing Gilbert and Sullivan works or creating anything based upon them. It is not surprising that, following a brief flowering of new creativity when the Gilbert and Sullivan copyrights initially expired (e.g. Joseph Papp's production of Pirates on Broadway and the West End stage), since their revival by the European Union harmonisation legislation their use have become effectively moribund. A generation of young people are growing up without knowing anything about Gilbert and Sullivan - an art form which, it can be argued, gave birth to the modern American and British musical theatre.
Boldrin and Levine take up this story in the United States where Sonny Bono successfully lobbied for the 1998 Sonny Bono Copyright Law which revived dying US copyrights on the altar of "harmonisation" with Europe. Thankfully Canada has not yet fallen in line with this expansion of rights into the "creative commons" - and India and China now appear to be having second thoughts about going down the Sonny Bono route.
But expanding the term of copyright rights is only a small part of the problem. The real difficulty is that copyright is a negative private right - a right to stop people copying. In theory it should only protect the form in which an idea is expressed and not the idea itself. But this idea/expression dichotomy has become blurred through bad judgments. This is particularly so in the United Kingdom where the English legal system has a requirement that the loser pays the other side's costs - so English judges never have the benefit of any "amicus curiae" briefs to assist the court in deciding a matter before it. Consequently we have suffered radical extensions of the scope and enforceability of copyrights to the detriment of citizens, libraries, innovators and anyone except copyright "rentiers".
What of patents? Surely this is a system which rewards the really creative and without which our society would not have the benefit of new pharmaceuticals, technology and products? Here Boldrin and Levine establish, with killing evidence, that all the best and fastest developments in any field arise when patent protection is not available. Want a new pharmaceutical plant and cutting edge research in your country? Abolish pharmaceutical patent protection. The "hidden hand" of the market forces big pharma to innovate, market and work better in countries which do not have patent protection. Empirical evidence shows that research and development of new drugs is not funded by the prospect of patent royalties but by the grants from governments to universities.
And outside of the pharmaceutical industry it quickly becomes clear that all our major industries only grew because patent protection never worked or could not be enforced. Take Hollywood - the industry grew up in California just to be out of the reach of the Edison company's patent trolls. The US aircraft industry was wrecked by the Wright Brothers worthless patents prior to the First World War and the world was only saved from slow development by work being done in France where there were no patents. Take our major computer and electronics industries - they have only grown because of the "share and enjoy" attitude of developers who, for most of their history, have been unable to patent electronic inventions and software.
But today all this development is at risk because of a misunderstanding of the market. Patent and copyright protections are looked upon as "good things" something which is at the core of the information society. The opposite is true - it is their lack of protection that gives us our potential for growth.
Lest it be misunderstood neither the authors (nor I) are advocating a complete free-for-all. The embryonic law of unfair competition is far better suited to deal with piracy and wholesale misappropriation of the intellectual property works of others. Unfair competition enables the court to look at a matter in the round, determine what, if anything, the person making use of the material had added to the public weal through his copying of someone else's work.
This book is a worthy addition to all lawyers' bookshelves. It needs to be read by any person or organisatiaon which is involved in maintaining the public right of access to materials. it shows that in a world without copyright and patents society at large is a winner. But God help the UK Intellectual Property Bar if China decides to read it and implement its recommendations at WIPO and the WTO.
Alistair Kelman 12th June 2009