Intellectual Property Law Needs Reform
What is intellectual effort worth? And how should it be rewarded?
Answers to these questions presently in use are embodied in intellectual property laws. Ideas cannot in themselves be physically possessed and, furthermore, can be used by any number of people without interfering with other’s use. But coming up with useful ideas should be rewarded, so, even though it’s not intuitive, government makes certain fruits of intellectual effort property. Government makes a person the owner of that intellectual property and gives him or her some kind of control over its use for some amount of time, depending on an idea’s categorization (such as copyright or patent). Unfortunately, current laws based on this scheme are far from satisfactory, and better answers are hard to find. An example each from ‘art’ and ‘science’ can hint at the problems – and the moral complexity – of intellectual property rights.
E. M. Beekman, a professor at the University of Massachusetts at Amherst, considers his share of his books’ earnings ridiculously small. For his current book, Professor Beekman wants to reproduce an anonymous 17th century painting, but the Dutch museum that possesses the painting demands a high fee for each use of the image. Professor Beekman is also making the legal arrangements to ensure that his family will receive royalties from his copyrighted works for sixty-nine years after his death, as according to federal law.
A drug for the treatment of Gaucher’s disease, a highly debilitating inherited metabolic disorder, was developed by government-funded researchers at Tufts University. After the drug tested successfully for human use, the researchers transferred their National Institutes of Health contracts to a newly created for-profit private corporation named Genzyme. They then completed the remaining criminal trials and brought the drug to market. Under a law not related to patents, Genzyme enjoys a seven-year monopoly on selling the drug in the United States. At far above manufacturing expenses, treatment with the drug costs an average of more than $150,000 per year per patient. Genzyme estimates that only a third of potential patients are treated at this price.
On the one hand society is best served when anyone can use information for free. Ideas of value can be used and enjoyed by everyone at no cost to anyone. People able to make the best use of information would never be restricted from doing so. On the other hand, people need an incentive to create, or they at least deserve just compensation for information-producing work. The goal of intellectual property law, then, should be to reward creative effort that has value to society, hindering as little as possible the dissemination of information. Ideally, people could be rewarded based on the benefit their idea brings to society, nothing more and nothing less, and everyone would have access to that idea. Only society as a whole could legitimately make this determination, but democratic decision-making would be cumbersome and only legitimate, not necessarily right. Alternatively, society could try to set up some sort of market mechanism to approximate this goal— but it would have to be better than what we have now.
Most of the revenue generated by the property right given to Professor Beekman’s intellectual effort goes to his publisher, and will continue to do so for the next seventy years. Some people favor nontransferable intellectual property rights so that, say, publishers can’t acquire exclusive rights to a writer’s work. Intellectual property rights-enabled benefits accruing disproportionately to non-creators takes away from both rewarding the creator and making the created information accessible. Most outrageously, however, existing intellectual property rights law generates windfalls for people who ought to have no claim whatsoever. The Dutch museum hordes reproductions of a picture painted over 300 years ago by an unknown individual, to the detriment of people interested in history or art. Everyone with Gaucher’s disease, particularly those who cannot afford Genzyme’s inflated price, suffer from the monopoly granted by the United States government to people already paid for developing the drug!
Some people have argued that the period of ownership for intellectual property should be shortened, but this still leaves a time of highly restrictive monopoly control. One proposed quick fix is compulsory licensing. A government may, for example, require a company selling a high-priced patented drug to let other companies manufacture the drug in exchange for government-set royalties. The company with the patent still makes money, though not as much as they could with a monopoly— but many, many more people gain access to the drug.
Determining what intellectual effort is worth may be like trying to evaluate Beethoven as compared to Mozart, but a way to adequately reward creative work while allowing the ideas themselves to remain relatively free for use is one intellectual effort society sorely needs. In the meantime, the unconscionable aspects of intellectual property rights which reward people not connected with the creation of intellectual property – like the Dutch museum – or already compensated – like the researches who founded Genzyme – should be eliminated.
[Intellectual Property Rights Editorial REWRITE for Howard Ziff’s 2001 Spring Editorial and Column Writing class.]
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