The Fundamentals, Part IV - it's all about the balance
July 31st 2004Intellectual Property cannot promote progress without providing real and meaningful incentives to authors to invent. Strong and enforceable intellectual property rights are critical to that end. But promotion of progress also requires limits to those rights. One of my favorite jurists put it well, gathering some examples of such limits:
<Intellectual property rights aren’t free: They’re imposed at the expense of future creators and of the public at large. Where would we be if Charles Lindbergh had an exclusive right in the concept of a heroic solo aviator? If Arthur Conan Doyle had gotten a copyright in the idea of the detective story, or Albert Einstein had patented the theory of relativity? If every author and celebrity had been given the right to keep people from mocking them or their work? Surely this would have made the world poorer, not richer, culturally as well as economically.
<This is why intellectual property law is full of careful balances between what’s set aside for the owner and what’s left in the public domain for the rest of us: The relatively short life of patents; the longer, but finite, life of copyrights; copyright’s idea-expression dichotomy; the fair use doctrine; the prohibition on copyrighting facts; the compulsory license of television broadcasts and musical compositions; federal preemption of overbroad state intellectual property laws; the nominative use doctrine in trademark law; the right to make soundalike recordings. [FN20] All of these diminish an intellectual property owner’s rights. All let the public use something created by someone else. But all are necessary to maintain a free environment in which creative genius can flourish.
White v. Samsung Electronics America, Inc., 971 F.2d 1395 (9th Cir. 1993) (Kozinski, J., dissenting). It’s all about the balance. Too much protection, and you squelch innovation and creativity, as our brightest and best minds opt instead to go to law school. Too little protection, and you squelch innovation and creativity, as our brightest and best minds opt instead to go to law school.
In the most meaningful way, IP is NOT about protecting those who have created — it is about assuring that those who can create in the future will create. We invest, by making society give to past inventors and authors, so that new inventors and authors are deeply motivated to make great things. We limit those rights, however, in order to assure that new inventors and authors are able to make great things.
Note that the balance ties in, too, with the nuances of pioneering invention versus incremental improvement — if we preclude improvements for the benefit of pioneers, great inventions may never be made practical. If we permit improvements without recognizing the work of pioneers somehow, pioneers instead go to law school.
It’s all about the balance.