| > Why should we subject ourselves to it? The traditional reason is to grant incentive for its creation in the first place. One primary example has been medical advances. With the benefit of a (temporary) monopoly on the sales of a new drug, the company has an incentive to create it in the first place. Perhaps we wouldn't have as many life saving advances without IP protection. A secondary reason is that it requires public disclosure. One alternative to patent protection is to keep a production method a trade secret. So companies, if they are sufficiently secretive, could have effective if not legally enforced monopolies due to such secrets. So is it worth the tradeoff of having IP protection? COST: a time-limited monopoly; limited incremental innovation on derivatives of the protected work during the lifetime of the protection. BENEFIT: potentially more innovative goods and services are created to begin with; the means and methods behind these innovations are publicly documented for future replication or derivative work . I'm think it is worth the tradeoff both for copyright protection and patents in general. But the specific laws are certainly not optimal as currently written and enforced by the courts. Durations for both patents and copyright are too long. Plenty of things that are patentable should not be, due to them being too obvious, trivial, or just not appropriate for protection. Also the remedy for infringement has multiple options. You could allow general infringement, at statutory royalty rates. I think Canada has experimented with this for copyright, and the US as standard (but private) arrangements for the licensing of music. You could require a fraction of any profits. These provide the monopoly rents, but not a monopolization of production and derivatives. We are still learning what the optimal tradeoffs are for society. I hope we have more experimentation on regulatory regimes to identify the best compromises. |
Most certainly, that's the nominal, and even in the USA, constitutional basis of copyright and patents. But the actual implementation over the last 100 years seems to have veered away from creating incentives, and into creating something naively akin to ownership, with state enforcement.
I hope we have more experimentation on regulatory regimes
Based on the CAFC's decision here, and it's history, we're only going to experiment with "more" and "stricter" regimes. We've (the USA) never really experimented with loosening "IP" monopolies, despite data and logic pointing towards shorter monopolies as closer to optimum.
I'd also have to take exception the "pharmacy has benefitted from long-lasting monopolies". That's probably true simplistically (When was the last time Smith Klein Glaxo didn't turn a huge profit?) but in the manner of creating tons of medicines for The Rest of Us, it seems to have failed. India and some African countries actually allow infringing compounds, because the price of authentic compounds is set high. Also, the people of the USA pay way more for medications than most other countries. This whole topic is subject to argument, but certainly pharmacy patents relate to high prices and unavailability.