Democracy, Public Goods and Intellectual Property Annabelle Lever Assoc Prof. of Normative Political Theory University of Geneva, Dept of Political Science and International Relations [email protected] DRAFT: Please do not cite or reproduce without permission. Acknowledgements: I am enormously grateful to Stephen Munzer for his editorial and critical comments on this paper. Thanks also to Bob Goodin and Stefan Gosepath, as well as to Andrew Walton, Lisa Herzog whose encouragement, and suggestions at an early stage of this project were much appreciated. This paper has been presented to the workshop ‘Patents and Poverty: Themes From the Work of Thomas Pogge’, University of St. Gallen, Switzerland; The Paris Seminar on Economics and Philosophy, Maison des Sciences de l’Homme, and to a Justitia Amplificata-­‐ funded seminar at the Frei Universität, Berlin. I am grateful to the audiences at each of these events. 1 How should we understand the moral justification of intellectual property rights and what implications, if any, do our answers have for our views on legal rights in ideas? Two ways of approaching the former are standard in the literature: the first is to seek a consequentialist justification for legal rights, based on the thought that ideas have the two classical features of a public good: non-­‐excludability and non-­‐rivalrous consumption. The second strategy is to look for a deontological justification of moral rights based either on inventors’ claims to desert, or on Kantian ideas about the claims of authors. Both strategies have their merits, although neither is adequate morally, and their implications for legally enforceable rights are both vague and, often, troubling. This paper is an attempt to sketch a rather different approach to the justification of IP, based on the idea that democratic governments are morally justified in ways that alternatives are not. It is motivated by the hunch that if democratic governments have a presumptive legitimacy that the alternatives lack, we can then use this presumption to structure our ideas about the justification of intellectual property rights (if any), and the best way to institutionalise them at national and international levels. Because democratic elections are an example of a public good, being non-­‐excludable and non-­‐
rivalrous, I show that we can use the differences between proportional and majoritarian forms of democracy to illuminate the conditions for moral and legal rights in ideas. That is not to say that IP rights are the only, or even the best, way to promote innovation, or to recognise and protect our creative capacities. On the contrary, I assume that the advantages of IP rights, compared to the alternatives, are partly a matter of circumstance and of the particular way that these rights are justified and institutionalised. Nonetheless, IP rights appear to have properties that alternative ways of promoting and protecting creativity may lack, in part because they appear to combine ‘control rights’ and ‘income rights’ in intellectual objects – to use John Christman’s helpful terms1 – in ways that such things as prizes and publicly-­‐funded research do not. The aim of this paper, then, is to sketch an approach to the justification of IP rights that will make it easier to exploit these moral, political and economic advantages, while minimising as far as possible the moral, political and economic difficulties associated with claims to intellectual property. 1
John Christman, ‘Distributive Justice and the Complex Structure of Ownership’, Philosophy and Public Affairs 23.3 (1994), 225-­‐50. 2 The aim of this paper, then, is to use widely accepted and uncontroversial assumptions about democratic institutions and values in order to shed a critical, but constructive, light on institutions whose consequences for the lives, liberty, status and wellbeing of people throughout the world are increasingly evident and increasingly controversial. I therefore follow standard contemporary usage in assuming that democracies have governments that are elected by the universal suffrage of citizens, although in the ancient world and in the renaissance republics lotteries were thought of as the quintessentially democratic way to select people for political office.2 I also assume that democracies require ‘one rule for rich and poor’, for governors and governed – that they are constitutional governments – and that they have well-­‐known and generally effective protections for political, civil and personal freedoms of association, expression and choice. Of course, the extent to which actual democracies recognise and embody democratic values is controversial, as are the democratic credentials of particular institutions, such as judicial review, which can be found in some democracies. But we can abstract from these controversies, because what concerns us here are those values and institutions which are so widely accepted as democratic that they form the standard by which philosophical, social-­‐scientific and political controversies about democracy are assessed. Finally, I assume that any compelling conception of justice will grant democratic governments a prima facie legitimacy that other forms of government lack, even though democratic governments can be unjust and some forms of undemocratic government may also be legitimate. A. The Problem of Justifying Intellectual Property It is a platitude of democratic thought that ideas must be free. That is, they must be freely available to people to use, criticise, reconstruct and defend, without the necessity first to ensure that they meet with official approval, or that they are true. They must also be free in another sense: free of heavy taxes and restrictions that make knowledge the prerogative of the rich, just as censorship makes it the prerogative of the powerful. In both these senses, free access to ideas is critical to democracy, even though democratic governments pass laws against defamation, libel, invasions of privacy, and 2
Bernard Manin The Principles of Representative Government. (Cambridge University Press, 1997), ch. 2. 3 against ‘fighting words’,3 ‘hate speech’ and even against some forms of offensive speech, in the interests of protecting other things to which people are entitled, and which words can threaten. Intellectual property rights, however, are not like more familiar forms of constraint on speech, because their purpose is to make certain ideas and expressions expensive, and to create the conditions in which people are able to make money out of them.4 That is why IP rights are controversial and, often, bitterly opposed by people who have little if any difficulty in accepting government restrictions on Holocaust Denial, or government laws which limit the amount of money that people can give to political campaigns in order to prevent those with financial power from dominating politics. The reason is that IP rights create monopoly rights in patentable ideas and copyrightable expressions which, though temporary, enable those who hold such rights to determine the use and access to them for the duration of the monopoly. 5 For example, copyright applies to ‘original works of authorship’, or expressions of ideas – rather than to ideas themselves – and gives their holder the right to prevent others from copying a work without permission. Patents concern ‘technological recipes for production’, in Fritz Mahlup’s phrase,6 and concern novel, nonobvious and useful inventions, and give their holders rights of exclusive use, which can be licensed to others. Trade secrets concern confidential and valuable business information that is not generally known in the industry, and which – as with the formula for Coca-­‐Cola, gives their holder an advantage over their competitors. While copyright generally now lasts for the life of an author plus 70 years, patents last for 20 years, and trade secrets endure as long as the secret itself. On the other hand, while patents generally give their owners exclusive use and sale of a patented invention, trade secrets only prevent the improper acquisition of desirable knowledge. Of course, patents, like copyright, require their holders publicly to disclose the invention or expression in question. Hence, as Hettinger 3
See Eric Barendt, Freedom of Speech, (Oxford University Press, 2007) p.76 on Chaplinsky v. NewHampshire (1942) where the United States Supreme Court first enunciated the doctrine of ‘fighting words’ as exemptions to First Amendment constitutional protections for speech. 4
Edwin C. Hettinger, ‘Justifying Intellectual Property’, Philosophy and Public Affairs, 18.1. (1989) 31-­‐ 52. 5
Normally, IP rights are thought to limit use not access. But, of course, controlling use controls access, in so far as people who cannot go to patent offices, or afford copyrighted books, may find it impossible to access ideas that, otherwise, they could afford. 6
The phrase is from Fritz Mahlup, Production and Distribution of Knowledge in the United States, (Princeton University Press, 1962), p. 163; quoted in Edwin C. Hettinger, ‘Justifying Intellectual Property, Philosophy and Public Affairs, 18.1.(1989) 31-­‐52, pp. 32-­‐3. 4 says, ‘these forms of intellectual ownership do not involve the exclusive right to possess the knowledge or ideas they protect…When they bring about disclosure of ideas which would have otherwise remained secret, patents and copyrights enhance rather than restrict the free flow of ideas, although they still restrict the idea’s widespread use and dissemination’. 7 The question, then, is whether the limitations on free expression, created by IP rights, can be justified consistent with democratic commitments to people’s freedom, equality and well-­‐being? Instrumental and Desert-­‐Based Justifications of IP Two lines of justification are usually offered for these rights. The first holds that IP rights are justified as a response to the character of ideas as public goods, which makes it difficult for those who create or invest in inventions, or novel forms of expression, to profit from their efforts. 8 IP rights do not protect ideas as such, but only the ideas that are fixed in a tangible medium of expression, (copyright) or embodied in a new invention (patent) or signalled by a new logo, word or mark (trademark). However, the utilitarian justification of these rights reflects the fact that ideas – however inventive, felicitously expressed, or distinctive their embodiment – have the classic features of a public good, being indivisible and non-­‐excludable. They therefore suffer from a problem common to other public goods: that they are unlikely to be provided in sufficient quantity or quality by individuals pursuing their self-­‐interest in a free market. The second line of justification for IP rights is based on the thought that people can deserve to be paid for benefiting others, and that as free markets are poor at distributing moral deserts, some constraints on their operation must therefore be made.9 IP rights, when justified, would therefore appear as recompense for deserving or publicly beneficial behaviour, rather than as devices for incentivising desirable behaviour and outcomes. 7
Hettinger, 36 See Alex Rosenberg, ‘Designing a Successor to the Patent as Second Best Solution to the Problem of Optimum Provision of Good Ideas’, in Annabelle Lever ed. New Frontiers in the Philosophy of Intellectual Property, (Cambridge University Press, 2013), 88 – 109, especially pages 88-­‐94; David B. Resnik, ‘The Morality of Human Gene Patents” in Kennedy Institute of Ethics Journal, 7.1., (1997), p. 4 online version; see also M. Lemley, ‘Property, Intellectual Property and Free Riding’ Texas Law Review 83 (2005) 1031-­‐75. and W. Landes and R. Posner, ‘An Economic Analysis of Copyright Law’, The Journal of Legal Studies 18 (1989), 325 -­‐363. 9
See Hettinger 48-­‐52, David Resnick supra, Pilar. Ossorio, ‘Legal and Ethical Issues in Patenting Human DNA’ in J. Burley and J. Harris (eds.) A Companion to Genethics: Philosophy and the Genetic Revolution (Blackwells,Oxford, 2002) pp. 408-­‐19.
8
5 Both lines of thought are, in principle, consistent with democratic conceptions of rights, duties and the legitimate limits of government action. In this they can be distinguished from practices which used to be common in the past, and which also seemed motivated by the difficulty, but desirability, of promoting invention and creativity, and of rewarding desert: practices such as forbidding inventors like Galileo to leave their city or principality, and/or giving them hereditary titles of nobility, or legal rights to ‘farm’ taxes.10 It is also apparent that these two ways of justifying IP rights will sometimes justify identical sets of legal rights. And both justifications of IP rights can reflect the same assumptions about the economics of ideas and the strengths and limitations of a free market. Nonetheless, these are two competing justifications of IP rights, both because they provide different and, generally, incompatible reasons to recognise intellectual property, and because they imply different and, generally, incompatible assumptions about the moral status of legal rights in intellectual property. The Instrumental Justification of IP For example, the instrumental justification of IP rights treats them as legal rights, rather than moral rights. That is, it sees IP rights as a way of furthering objectives which we are not morally obliged to pursue, nor morally prohibited from pursuing. What justifies IP rights on this picture is simply this: that they foster invention and creativity in ways that are attractive economically, scientifically and culturally, but which do not require governments to know which ideas and expressions are worth encouraging, or how and why it would be a good idea to encourage them. Governments have limited abilities to predict the future and concerns about favouritism, paternalism, moralism and efficiency make it morally undesirable to rely on governments alone to sponsor inventions and creativity. Hence, the instrumental justification of IP rights sees them as a useful adjunct to the other ways governments might try to handle the difficulty of encouraging creativity – such as direct or indirect subsidies and investment. Patents require inventors to deposit a description of their invention for public usage, so patents are a way of incentivising creativity which makes desirable knowledge publicly accessible for free, at the same time as it grants patent holders the right to decide who, if anyone, is able to use their patented invention for commercial purposes. Hence, absent 10
See Zorina B.Khan, The Democratisation of Invention: Patents and Copyrights in American Economic Development, 1790-­‐1920, (Cambridge University Press, 2005) chs. 2 and 8. 6 compulsory licensing, patent-­‐holders need not license the use of their inventions to anyone, even if they have no intention of using their invention themselves. Likewise, copyrightable material must be publicly accessible, although its reproduction will require permission, which may be granted only for a fee. By creating and upholding IP rights, governments can provide an incentive for creative people to share their creations with others, without fearing that in doing so they will lose all ability to exploit them themselves, or to make a living from them. Intellectual property rights therefore appear to combine protections for autonomy as well as income, which John Christman identified as the twin aspects of property rights, in ways that are morally as well as economically desirable. The same applies to the case of copyright. Thus, whether we are concerned with patents or with copyright, the instrumental justification suggests, what justifies IP rights, when they are justified, is that temporary monopolies help to overcome the problem of financing inventions and creativity through the free market, without assuming unrealistic levels of prescience, organisation and resources on the part of government. Economic Problems with the Instrumental Justification of IP A key difficulty with instrumental justifications of IP rights, however, is that it isn’t always clear how helpful they are at promoting creativity. At all events, a great deal depends on the particular legal institutions involved, the content of the particular laws, and of the ways in which these interact with other national and international laws and institutions. 11 So, for example, lax interpretations of what merits a patent can adversely affect the development of genetic science and of computer science – as well as the industries that depend upon their knowledge – by creating what has been called a ‘patent thicket’,12 or a tangle of multiple patents which make it difficult to determine what it would take legally to use publicly accessible knowledge, or to afford to buy the licenses and permissions to develop one’s own ideas. On the other hand, ever-­‐more M. A. Heller and R. S. Eisenberg (1998) ‘Can Patents Deter Innovation? The Anticommons in Biomedical Research’, Science, 280. 5364, 698-­‐701provides the classic discussion of this issue. See also R. Merges, ‘Property Rights Theory and the Commons: The Case of Scientific Research’, Social Philosophy and Policy 13, (1996) 145-­‐167; Alex Rosenberg supra, 96 -100; Hettinger, 48-­‐52. 12
For a helpful review of the literature and evidence on patent thickets see Bronwyn Hall, Christian Helmers ,Georg von Graevenitz ,Chiara Rosazza Bondib, ‘A Study of Patent Thickets Final Report’, prepared for the UK Intellectual Property Office, and available online http://eml.berkeley.edu/~bhhall/papers/HHvGR_Patent_Thickets_FIN_29Oct12.pdf . In a personal communication, Stephen Munzer suggested that ‘As time goes on and with it the literature, “patent thicket” is beginning to be seen as a rather vague expression’. 11
7 lengthy protections for copyright, which have seen its protections extend to 70 years after the death of an author, at a time of growing life-­‐expectancy, mean that copyrighted knowledge may take over a century and half, nowadays, to enter the public domain. Summarising a range of concerns with contemporary copyright law, Laura Biron notes, ‘Today copyright is no longer a limited monopoly of short duration, but rather, is said to have developed into a near-­‐perpetual property right, close to Blackstone’s proverbial hyperbole of “exclusive dominion”’.13 In short, it is difficult to know how good IP rights are at promoting the creation and use of ideas and expressions that, otherwise, would not have been created or developed, or how far their advantages outweigh their disadvantages. Moral Problems with the Instrumental Justification of P Moreover, there seem to be several moral difficulties with the instrumental justification of IP rights – and these are well reflected in moral difficulties with current legal practices. I will first list them, and then examine them in more details. The first difficulty lies in differentiating amongst the claims of the producers of inventions or of copyrightable expressions– inventors, investors and entrepreneurs – on the utilitarian justification of IP rights; the second, concerns the differential treatment of producers and consumers of patentable ideas and copyrightable expressions; and the third concerns the differential treatment of consumers in rich and poor countries. As we will see, even were it clear that IP rights had the beneficial effects that is claimed, injustices in the distribution of those benefits would make it difficult to conclude that the instrumental justification of IP rights is successful as it stands. Differentiating the Producers of Intellectual Property A moral problem with utilitarian justifications of intellectual property concerns the relative claims amongst the different people involved in its production. To see the problem, let us just divide those people into three broad groups: the inventors – or people who come up with patentable inventions and copyrightable ideas; investors, or those who provide the necessary money and know-­‐how to bring them to market, or to make them accessible to consumers; and entrepreneurs – or those people who help to bring inventors and investors together, or help to find/create the market which makes 13
Laura Biron, ‘Public Reason, Communication and IP’, p. 229 in Annabelle Lever, ed., 225-­‐ 260. 8 investment in them worthwhile. Here I think of publishers, theatre impressarios, record companies, as well as universities. Because patents and copyright are marketable rights, inventors can trade those rights to others – to entrepreneurs and to investors – in exchange for money or a share of any profits from the successful exploitation of their inventions and expressions. However, it is hard to see why the resulting trades of patents, copyrights and trademarks should be considered morally acceptable when they may be no more likely to reflect risk, opportunity costs or beneficial effects on others than the sale of tangible property. Moreover, in a context where most patentable ideas are created by scientists working for international corporations, or for universities (in so far as these are different), rather than solitary inventors, the claims of inventors to special benefits from their inventions seems much less evident, as Hettinger notes, than when patents were the means by which solitary and, often, idiosyncratic people supported themselves financially.14 Indeed, even in economic theory, patents and copyright seem an inappropriate way to reward other contributions to creativity –such as the efforts of investors or of entrepreneurs – because these groups ought, in principle, to be able to recoup their risks and outlay by charging a market price for a definite commodity – a medicine, a new car engine, a new theatre production, a record and so on. Yet unless creators are legally prevented from selling their rights, it is likely that profitable IP rights will end up in the hands of investors and entrepreneurs, rather than of inventors, because the demand for profitable ideas and expressions is likely to outstrip supply, thereby making it rational for creators to sell their rights, rather than try to develop their intellectual property themselves. Forbidding inventors from selling their patents would seriously diminish their ability to incentivise investment, since there is no reason to think that those who are most inventive are particularly adept at business development.15 Nonetheless, the consequence of a right to sell one’s intellectual property, is that IP rights may turn out to threaten, rather than promote, the autonomy and material interests of authors and 14
Hettinger, 46: ‘In our society…most patents and copyrights are owned by institutions…Independent authors or inventors who earn their living by selling their writings or inventions to others are increasingly rare’. 15
A similar issue is raised by Charles Beitz’s discussion of legal limits on the alienability of ‘moral rights0, in continental approaches to copyright in Charles Beitz, ‘’The Moral Rights of Creators of Artistic and Literary Works’, Journal of Political Philosophy 13. 3. (2005) 330-­‐ 58, However, at p. 332 Beitz notes that a statutory ‘droit de suite’ or resale royalty can help to ensure that inventors get to share in the appreciation of their ideas over the long term. 9 inventors and, therefore, the seeming moral attractions of IP rights, as compared to prizes or public funding, may be more apparent than real. Of course, for a variety of reasons, investors and entrepreneurs may find it difficult to recoup their investment in an invention by successfully marketing it as a finished product. Reverse-­‐engineering, and technologies for cheap and successful copying may make it difficult for some entrepreneurs to recoup their investment by selling products derived from inventions or new expressions.16 In those circumstances, moral objections to IP rights on the grounds that these largely end up in the hands of established businesses, rather than supporting idiosyncratic inventors, might seem less telling. The problem, however, is that the law does not generally allow monopoly rights in order to prevent copying, so it remains to be seen why the forms of copying protected by IP rights are so important economically, politically or morally that they deserve a special protection unavailable to other people, faced by competitors exercising their ‘economic liberties’. For example, a hotel, spa, restaurant, sports-­‐club or pub that creates a special service to distinguish it from competitors, and invests in expensive equipment or training in order to do so, may quickly find that its successful idea is copied by others and that, as demand for that equipment and training grow, the costs of buying it decline. But that, generally, is understood to be how competitive markets work. Hence, if there is an area where the government thinks it desirable to help companies to face such problems – as it might, if it wants to facilitate social inclusion for the disabled, for example – it is expected to provide targeted subsidies or help to companies in order to incentivise the outcomes it wants. As a general matter, however, these incentives fall well short of the exclusive control and opportunities for profit created by IP rights. In short, once we distinguish amongst the different ‘producers’ of intellectual property, their moral justification becomes less clear, because of the difficulty of showing that these rights are either necessary, or notably helpful, in furthering the public good. 16
Alex Rosenberg, supra, attaches a lot of weight to this problem, in arguing why any loopholes in the enforcement of patent rights necessarily undermine the worldwide system of IP protections. In his view, these loopholes, combined with the ease of copying, now make prizes preferable to patents as a way of incentivising invention. 10 However, two further problems with IP rights are worth noting briefly. The first concerns the relationship between producers and consumers, implicit in the instrumental justification of IP; and the second concerns the relationship amongst consumers. Producers v. Consumers The rationale for IP rights, on the instrumental justification of IP, is benefit to consumers, aka ‘the public’. But what is most striking about IP, from this perspective, is how little power IP rights give to consumers in determining what they want or need. At best – as with other marketable commodities – consumers can make their views plain by refusing to buy a product or by actively seeking it out. However, within those very narrow constraints, IP place all the balls firmly in the court of the producers of, and investors in, creative ideas and expressions. IP rights therefore compare unfavourably to other ways of incentivising behaviour and products. Although it turns out that concerns about the impact of Myriad’s patents on BRAC1 and 2 on research on breast cancer may have been exaggerated,17 these worries reflect the seemingly paradoxical nature of patents. For example, the normal thing to do when needs are both urgent and immediate is to enlist as wide a variety of promising help as possible in order to explore different avenues, encourage cooperation, and the like. By contrast, patents enable patent-­‐holders to determine the direction, pace and likely success of developments which are of the first importance to ‘consumers’. For that reason patents on medicines and surgical techniques are particularly controversial morally, but the reasons for concern extend beyond such cases to the basic research on which they rely, and the barriers which copyright places on the distribution and use of desirable forms of expression. See, for example, The Nuffield Council of Bioethics’ 2002 discussion paper, ‘The Ethics of Patenting DNA : A Discussion Paper’, available at http://www.nuffieldbioethics.org For two recent discussions of these concerns,
see James Wilson, ‘On the value of the intellectual commons’, which argues against the patenting of medicines
and surgical techniques, in ed. Lever, pp. 122- 139, and Jorn Sonderholm, ‘Ethical Issues surrounding
Intellectual Property Rights’ in the same collection, pp. 110 -121. Wilson’s discussion of BioMarin’s license for
amifampridine (Firdapse), footnote 26, p. 133, is particularly relevant. Steven says that it is wrong that the patent
materially slowed or halted otherwise promising research into breast cancer: ‘First, breast cancer research that is
non-diagnostic for FRACA1 and BRCA2 proceeds apace. Second, once the Myriad decision was handed down,
it became known that much diagnostic work specific to BRAC1 and 2 was being done. Myriad’s most valuable
asset now is probably its database’.
17
11 Consumers v. Consumers The instrumental justification of IP rights suffers from a further problem: that it treats all consumers as indistinguishable morally. Financing ideas this way necessarily favours those who are rich, and with easy-­‐to meet-­‐ needs, as opposed to those who are poor, or whose needs are hard to meet. As Thomas Pogge has shown, the resulting consequences for global health are grave, as market-­‐based solutions to ill-­‐health favour the creation of solutions for the ill-­‐health of those who are relatively healthy and relatively rich.18 Moreover, many problems of public health, in poor countries, are hard to meet as a result of civil war and inadequate infrastructure (lack of roads and sanitation, not just hospitals and medical facilities). Thus, no individual or company has an economic incentive to spend effort even on relatively simple, but potentially important, drugs and treatments, since the chances effectively of delivering these may be too small. What is true of health is true of other goods. So, one of the moral difficulties of IP rights as a way to promote innovation is that it is systematically biased against those with idiosyncratic or difficult needs, and in favour of the tastes and fancies of the well-­‐off. To sum up, the moral difficulties of the instrumental justification of IP rights, then, reflect its indifference to conflicts of interest and of power amongst the producers and consumers of intellectual property, as well as within these groups. These difficulties do not show that it is wrong to seek an instrumental justification of such rights. However, they highlight the need to pay attention to conflicting, but potentially legitimate, interests when framing IP rights, and in determining how they should be institutionalised and enforced. At present, the assumption seems to be that any conflicts of interest in the production and distribution of intellectual property should be met through other means, rather than by making IP rights more flexible or revisable. However, not only is it unclear why we should ‘exogenise’ solutions to the problems of IP rights, if I can put it that way, but doing so does nothing to alleviate the worry that IP rights, themselves, may be exacerbating inequalities of power, liberty and wellbeing that 18
Thomas Pogge,’The Health Impact Fund: Better Pharmaceutical Innovations at Much Lower Prices’, in T. Pogge, M. Rimmer and K. Rubenstein (eds.) Incentives for Better Global Public Health: Patent Law and Access to Medicines, (Cambridge University Press, 2010), 135-­‐154;.Sonderholm, 111-­‐2 and 119-­‐121. However, as Stephen Munzer notes, some exceptions are made in US law for ‘orphan drugs’, or the drugs necessary to treat rare diseases, as these are likely to be prohibitively expensive for consumers, even if their costs of production are not especially high; and some exceptions are also possible for ‘compassionate use’, or the use of patented drugs in serious and terminal diseases. 12 we already have duties to remove or mitigate. In short, some of the problems with IP rights are better thought of as injustices, which we have a duty to avoid, rather than as ‘problems’ which we should try to mitigate, but need not prevent. The instrumental justification of IP rights provides no way of making such moral distinctions. Desert-­‐Based Justifications for IP By contrast with the instrumental justification of IP rights, which treats them as morally optional legal instruments, the desert view of IP rights treats them as the legal expression of moral rights.19 On this perspective, IP rights, when justified, reflect the moral claims of the inventive, or of those who have supported them financially. Hence, IP rights are, legally, an expression of our moral duties, or debts of gratitude -­‐ or that, at any rate, is what they should be, and would be¸ were they correctly defined, institutionalised and enforced. Intuitively attractive though they are, such ideas have several well-­‐known problems. 20 First, markets regularly fail to calibrate economic outcomes with moral desert, so it is unclear why inventors and investors in ideas should be entitled to a special set of institutions designed to remedy this defect. Second, it is hard to see how monopoly rights to license the use of one’s ideas are meant to track desert, since those whose ideas are popular may be able to make a great deal of money in this way, whereas those whose ideas are unpopular – however, deserving they are, and however beneficial their ideas – may be left with nothing.21 Third, disagreements about who is deserving of what suggest that desert is unsuitable as a standard for determining legally enforceable entitlements, even if it has a role in determining the winner of certain types of prizes , 19
Jorn Sonderholm, supra pp. 17-­‐18 discusses Lockean‘ attempts to justify IP rights, based on the idea of a `natural right‘ to the fruit of one’s labours. However, the difficulties of such attempts at justifying IP rights are well-­‐analysed in Seana Valentine Shiffrin’s ‘Lockean Arguments for Private Intellectual Property‘, in Stephen R. Munzer, ed., New Essays in the Legal and Political Theory of Property, (Cambridge University Press, Cambridge, 2001), 138-­‐167. These difficulties reflect familiar, and seemingly insuperable, difficulties with Lockean justifications of private property and the reasons for thinking that `Common ownership, for Locke, is not...best seen as a mere starting place or an easily overturned default rule. It is also a concrete expression of the equal standing of, and community relation between, all people‘. Shiffrin, 167. However, for a contrary view see Adam D. Moore, ‘Intangible Property: Privacy, Power and Information Control’ in Information Ethics: Privacy, Property and Power, (University of Washington Press, Seattle, 2005), .. 20
Hettinger…etc 21
Geert Demuijnck presses this point in his critique of copyright law as it currently applies to the music industry, in `Illegal downloading, free riding and justice‘ in ed. Lever, pp. 261-­‐283. See especially the discussion 270-­‐274. For the bearing of his arguments on the ‘Hadopi’ debate in France, see pp. 280 -­‐282. 13 such as the Booker prize or the Nobel prize. Finally, it is hard to understand why we should treat desert as more important than need, or than other ethical considerations, in determining the best way to frame legal rights in ideas.22 After all, people have a variety of moral claims, which can properly constrain the ways we seek to promote collectively desirable ends. So desert does not seem a good reason to create a complex legal institution, such as IP rights, especially when one considers the loose fit between desert and the market price of ideas with, or without, these rights. The difficulties of desert-­‐based justifications of IP, however, should not lead us to ignore the importance of moral considerations in general, and deontological considerations in particular, when thinking about the justification of IP. However, it does suggest that (1) we need to pay attention to the institutional conditions for claims of desert to be morally compelling, and (2) that the relevant concept of desert for the justification of IP rights may have to be institutional rather than pre-­‐institutional. For reasons suggested by Rawls, claims of pre-­‐institutional desert or ‘natural’ desert are difficult to frame in a way that is compelling for institutional justice, whatever their importance in other parts of our moral life.23 Indeed, it is only against a backdrop of morally appropriate rights, liberties, opportunities and resources that we may be justified in acting on the claims of desert, rather than of need, or of happiness – given the importance that people may reasonably attach to the latter. These limits on deontological arguments for IP apply also to efforts, inspired by Kant, to offer justifications of copyright law based on the rights and duties appropriate to public reason.24 For example, Abraham Drassinower has argued that the point of copyright law is not to promote some optimal level of creative work, but to protect ‘an author’s 22
This is the force of David Lametti’s virtue-­‐ethics based critique of stringent anti-­‐copying norms in the music-­‐
industry in ‘Reflections on the ethics of file sharing’, in ed. Lever, 284-­‐ 306. Essentially, Lametti argues that concerns for solidarity – for intimacy, friendship, mutuality – should have a greater place in setting copyright norms than is currently the case, as they are integral to the role of music, and music-­‐sharing in the lives of the young. 23
John Rawls, A Theory of Justice, (Harvard University Press, Cambridge MA., 1999 revised edition), ch. 5, section 48, pp. 273-­‐276. 24
Abraham Drassinower, ‘Copyright Infringement as Compelled Speech’ in ed. Lever, 203-­‐224. This article contains references to his many other articles on the subject. See also, Laura Biron, ‘Public Reason, Communication and Intellectual Property’, in ed. Lever, 225-­‐260 and Anne Baron, 'Kant, Copyright and Communicative Freedom' Law and Philosophy (2012) 31 (1), pp.1-­‐48. Biron’s essay provides a careful discussion of this trend and the particular -­‐ and, in her view, mistaken – assumptions about Kant on which it rests. As I am no Kant scholar, my argument here does not depend on the merits of competing interpretations of the Master. 14 autonomy as a speaking being’. 25 Drawing on Onora O’Neill’s elucidation of Kant’s ideas, Laura Biron agrees with Drassinower that the existence of a public domain is internal to copyright, rather than a set of ad hoc constraints imposed on it from the outside. Moreover, she argues, attention to the communicative aspects of patents and trade marks can illuminate their commonalities with copyright, help to clarify what should count as an infringing ‘allusion’ to a trade mark, and what informational requirements should be required of those seeking a patent.26 Attractive and promising as this new literature is,27 and welcome for the degree of philosophical sophistication it brings to the literature, this new strand of thought faces many of the same problems as its less-­‐sophisticated competitors. If there is little agreement on the ethics of desert, there is even less on the ethics of communication, as Postmodern, Habermasian and Kantian perspectives pull in quite different directions and different again from those that might be developed from a Millian, Rousseauian or Platonic premises about the nature and value of knowledge, and the conditions in which it flourishes. 28 Moreover, while the appeal of Kantian approaches to IP is that they serve as an antidote and alternative to ‘property-­‐based’ approaches to ideas,29their difficulty is that they provide no natural way to determine what economic rewards, if any, are due to creators. On the Kantian approach, it is recognition as an author or creator of ideas that provides the rationale for IP rights, and that helps to determine their content and limits. Its natural focus, therefore, is the right to be publicly acknowledged as an author or creator: and therefore not to be bowdlerised, misrepresented, published or reproduced without 25
See Drassinower in ed. Lever, as well as ‘Authorship as Public Address: On the Specificity of Copyright vis-­‐à-­‐
vis Patent and Trademakr’, Michigan State Law Review 1 (2008), 199 – 232 26
Laura Biron, ‘Public Reason, Communication and Intellectual Property’ in ed. Lever, 225-­‐260. 27
See, for example, Anne Barron, ‘Kant, Copyright and communicative Freedom’, Law and Philosophy 31 (1) 2012, 1-­‐48; M. Borghi, ‘Copyright and Truth’, Theoretical Inquiries in Law, 12.1. (2011) 1-­‐ 27; K. Treiger-­‐ Bar-­‐Am, ‘Kant on Copyright: Rights of Transformative Authorship’, Cardozo Journal of Arts and Entertainment 25.3. (2008) 1060-­‐ 103. 28
See, for example, Annabelle Lever, ‘Introduction’, pp. 23-­‐4 in ed. Lever. As Biron says, ‘I accept, of course, that there may be other accounts of public reason suitable for this project, and it will be interesting to see whether alternative approaches to the communicative aspects of intellectual property – drawing on Habermas or Rawls, for example – emerge as scholarly interest in this area grows’. Biron, pp. 225-­‐6. 29
See Laura Biron, pp. 226-­‐ 8, Drassinower, in ed. Lever, 208-­‐9, 222-­‐ 4. 15 permission.30 However, the right to be recognised as an author has no obvious implications for the permissible distribution of any financial benefits from creative work. So the striking thing about these new approaches to IP, is that while they may help us think more deeply about the ‘control’ rights implicit in IP, and may therefore do better than utilitarian approaches at recognising and protecting the non-­‐material interests of the creative, they do nothing to illuminate legitimate claims to the ‘income’ parts of the intellectual property bundle. To that extent, they appear to understate the legitimate interests of authors and inventors in making a living from their ideas,31 and wholly to ignore the claims of those who invest in ideas, such as publishers and entrepreneurs. Moreover, these new justifications of IP seem likely to generate arbitrary distinctions amongst producers of ideas, such as philosophers, sculptors, poets, and musicians, in so far as the work of the latter three may be much harder to construe as contributions to ‘public reason’ than that of the former. Indeed, interpreting the latter’s work that way, for the purposes of legal recognition and protection, may conflict with their creators’ own understanding of its nature and value. A commitment to particularist values and ideals, and to non-­‐rational forms of authority may motivate the creative, as well as the more prosaic, amongst us. How far a Kantian perspective on intellectual property could accommodate such claims remains to be seen. 30
Abraham Drassinower provides a particularly well-­‐developed version of these ideas in his articles on copyright. However, it is worth noting that his account of IP is rights-­‐based, as are many of the other approaches to copyright inspired by Kant. An exception is Laura Biron’s view, where our duties in public communication clearly form the grounding of any rights that authors have to recognition as authors. The difficulty for Drassinower and the other authors, therefore, is to explain the foundation of the moral rights that they attribute to authors. Grouping these authorial rights together as rights against ‘compelled speech’, as Drassinower does, seems merely to highlight, rather than to resolve these problems, as Francis Davey notes in ‘Philosophical Perspectives on Intellectual Property’, Journal of Intellectual Property Law and Practice 8.4 (2013), 333 -­‐335. 31
A similar problem, I believe, underpins John Christman’s approach to intellectual property in ‘Autonomy, Social Selves and Intellectual Property Claims’ in ed. Lever, 33 – 57. For anyone who cares about equality as well as autonomy, it is important that ‘restrictions in licensing fees …in many cases will leave untouched the autonomy of the holders of the IP’, just as many restrictions and taxes on my material property can leave my autonomy untouched, because autonomy rarely requires us to get some specified amount of income, in a specified way, from our material or immaterial property. But that does not mean that the ability to profit from intellectual and material property is irrelevant to our autonomy, or that we can draw as sharp a line between control and income rights as Christman tends to suggest. For similar worries, see Daniel Attas’ discussion of Christman’s views at pp. 131-­‐6 of ‘Fragmenting Property’, Law and Philosophy 25.1. (2006) 119 -­‐149. 16 The Need for an Alternative Some form of legal protections for ideas would seem to be justified by deontological and consequentialist concerns for the inventors and users of ideas. However, existing justifications of IP are inadequate when taken singly, nor is it easy to see how they might be combined. Moreover, in light of the potentially grave, even insuperable, disadvantages of IP rights, any successful justification of such rights will need to say something about the ways that these can be mitigated and compensated, in those cases where it is not morally necessary to avoid them entirely. The differences between democratic and undemocratic governments, I think, can help us here. First, thinking about those differences can help us to spell out a suitable institutional framework of deontological constraints within which any instrumental arguments for IP can take place. Too often, institutional – and specifically political – settings are left implicit in arguments about IP, in part because these seem extraneous to the economic definition of a public good, or to a moral definition of what people deserve, or are entitled to. However, making the implicit explicit – as Warren and Brandeis famously put it, in their article distinguishing common law protections of privacy and property32 – is now clearly necessary to make progress in thinking about IP. In particular, unless there is some reason to think that all moral rights in IP are human rights – which seems unlikely – any moral justification of IP will fall within the scope of political morality. Hence, illuminating the political aspects of IP will be a prerequisite for resolving claims about non-­‐institutional rights to control and profit from patentable ideas and copyrightable expressions. Secondly, as we will see, democratic elections can provide a model for handling public goods, while respecting the rights of individuals and groups. Democratic elections are a public good, being indivisible and non-­‐rivalrous in consumption, even though democratic elections are explicitly competitive in purpose, since their point is to determine who, of the available contenders, is entitled to form a government. Thus, democratic elections seem well-­‐suited to help us consider how best to reconcile the competitive and cooperative aspects of IP. Indeed, as I hope to show, what it takes to 32
Warren and Brandeis, Samuel D. Warren and Louis D. Brandeis, “The Right to Privacy [the implicit made explicit]”, originally published in the Harvard Law Review, and republished in Ferdinand D. Schoeman, Philosophical Dimensions of Privacy: An Anthology, (Cambridge University Press, Cambridge, 1984),74–103. 17 justify ‘winner takes all’ solutions to political competition, illuminates the deontological constraints that are necessary to make ‘winner takes all’ a morally acceptable solution to competition in the production, distribution and use of creative ideas and expressions. On other hand, the possibility of ‘proportional’ solutions to political competition suggest that efforts to incorporate and, even, reward losers for participating in peaceful competition, may expand our approach to public goods and, therefore, to the public goods justification of IP. In short, democratic elections can help us to think about appropriate incentives and limits to competition in ideas – or so I will argue. In what follows, I will briefly explain and support these claims. However, at present these can only remain a sketch and a promise of future performance. Part 2. Democracy as a Public Good It can seem odd to talk about democracy as a public good – not because it is not good, and not because it is not supposed to serve the interests of all who it governs, but because the term ‘public good’, in the economic sense, is something that we tend to associate with public utilities, such as roads and railways, or with environmental conditions such as clean air or clean water. But, of course, one way of interpreting the central argument of Hobbes’ Leviathan is that peace is a public good, like clean air or water – the sole environment in which any of us can expect to flourish – but which none of us, individually, can secure for ourselves.33 If it sounds odd to talk of democracy as a public good, therefore, it is partly because we are used to thinking of democracy as a competitive business, rather than a cooperative one – and partly because it is clear that the justification of democracy cannot depend on the idea that democracy is a public good. As Hobbes thought, if the alternatives are dire enough, any government may have a public goods justification, including an absolute monarchy, so the fact that democracy has the features of a public good economically is insufficient to show that it is a justified form of government. Still, the fact that there is public goods justifications of democracy are morally inadequate, does not mean that democratic government does not meet the technical definition of a public good, or that it is unhelpful to think of it that way. After all, 33
For a systematic reading of Hobbes’ Leviathan using the tools of game theory see Jean Hampton’s Hobbes and the Social Contract, (Cambridge University Press, 1988). 18 democracy is indivisible for any given group of citizens, since you can’t arrange it so that Tories get to vote, but Whigs don’t. Whatever you would have in such circumstances, it would not be a democratic election. And democratic government is non-­‐rivalrous for any given group of citizens, as my ability to vote in no way affects your ability to vote. Of course, democratic elections are competitive – so failure to vote, or to vote for the winning candidate -­‐ may threaten us with serious losses: loss of our political hopes and prospects, the likelihood of certain burdens that we had hoped to avoid, and so on. It may mean that we face unemployment, business failure, the loss of state benefits and much higher taxes. It may also have predictable and, from our perspective, misguided and unjustified consequences for foreign and domestic policy. The costs of democratic politics, in other words, can be real, predictable and painful. However, these are risks to our interests that other people are entitled to impose on us, via the exercise of their rights; and risks that we are entitled to impose on ourselves, by altruistic voting. So, setting aside the case of parties wedded to racist and undemocratic agendas, the point about democratic elections is that they can be non-­‐rivalrous in the technical, economic, sense, even though they inevitably have a competitive dimension, which is morally and politically important. Indeed, it is precisely because democratic elections have a competitive as well as a cooperative aspect that they are so helpful in thinking about the differences between a democratic approach to public goods, and the alternatives. One of the difficulties with existing justifications of IP is their failure to take seriously the fact that people have competing, but potentially legitimate, interests in the production and distribution of creative ideas and expressions. They ignore, if I can put it that way, the private dimensions of public goods, or suppose that from a moral point of view, the former must be less significant than the latter. 34 34
The failure to recognise the private dimensions of IP, understood as a public good, lie behind my concern with James Wilson’s treatment of creators’ rights in ‘On the value of the intellectual commons’, in ed. Lever. While I am sympathetic to his reasons for thinking that IP rights on medicines are hard to justify morally, I think he underestimates the moral claims of creators and inventors in their products, because your ability to use my inventions may be inconsistent with my conscientious convictions and the motivations which led me to develop them in the first place. See A. Lever, ‘Introduction’, pp. 14-­‐15 in ed. Lever, supra. For similar concerns about the failure to recognise the private moral dimension of technical public goods, in the case of arguments for compulsory voting, see Annabelle Lever, ‘Compulsory Voting: A Critical Perspective’, supra, 913-­‐15. 19 The private dimension of public goods is morally important, because the fact that we would all benefit from an arrangement does not mean that we should be indifferent to the various ways in which we might arrange its costs and benefits, or that considerations of justice and morality are irrelevant whenever we are dealing with something that meets the technical definition of a public good. That would be to confuse the economic sense of a public good with the moral and political sense. On the former, we are talking about a good which can only be had by ensuring its provision for everyone within a given group, although the costs of so doing, including the opportunity costs involved, may mean that it is undesirable actually to provide that good for anyone.35 On their moral and political sense, when we talk about a public good, (and especially when we talk about the public good), we are talking about something that is supposed genuinely to be in the interests of all, whether or not it requires universal provision. Thus, a concern for the public interest does not determine whether motorways should be paid for solely from taxes, or whether tolls should also be used to finance them, although the latter inevitably limit access to those willing and able to pay the toll. Likewise, we may conceive of our self-­‐interest in such a way that we all benefit from the care of the disabled, whether or not we expect ever to need such care. Of course, what is supposed to be the case, and what is actually the case can come apart. Things that we believe, or hope, to be for the public good, in the moral and political sense, may turn out to be no such thing. But the key point, for our purposes is this: there is nothing in the economic idea of a public good that requires its provision to be consistent with democratic norms and values and, as Hobbes illustrates, there may be a great many things which meet the economic definition of a public good which have nothing to do with democratic government. Hence the significance of democratic elections. For if, as it seems, a democratic conception of public goods requires us to recognise and protect interests which are legitimately private, in the sense of not being shared by all,36 then we need some way to determine what those legitimate interests are, and how to protect them. Of course, we also need some way to determine which, of 35
Geert Demuijnck has a helpful discussion of the ethics of free-­‐riding on institutional cooperative schemes in ‘illegal downloading, free-­‐riding and justice’, 265 -­‐268. 36
No implication here that those interests must be confidential, secret, anonymous or intimate – though these, of course, are all important aspects of privacy, as commonly understood. See Annabelle Lever, On Privacy, (Routledge, 2012), Introduction and ch. 1 20 the potentially infinite number of things that might qualify as a public good economically, we are justified in pursuing on democratic grounds. Democratic elections can help us handle both these problems, not simply because they enable us to choose amongst eligible options, but because the values they seek to instantiate can help us to see what can count as an eligible option.37 First, the familiar rights, duties, opportunities, and resources which democratic elections require can provide a ‘test’ of whether or not a given conception of an economic public good is consistent with morally compelling norms. So, for example, if there is no way to institutionalise intellectual property rights without threatening the ability of scientists to talk publicly about threats to public health, we would have good reason to think IP rights inconsistent with democratic government. On the other hand, if it turned out that, in the absence of IP rights, inventors would be powerless to prevent uses of their creative efforts which they find unconscionable, we would also have reason for concern. Democratic governments can require people to pay taxes for policies that they believe to be morally wrong, even grossly unjust. However, treating people as moral agents generally precludes forcing them more directly to support ends which they repudiate morally,38 even though the precise contours of moral exemptions from otherwise justified laws are controversial, as are people’s legitimate claims to disobey democratic legislation that conflicts with their conscientious convictions.39 So if it turned out that we need to grant inventors some type of control rights in their creations, in order to treat them as our equals, rather than as our servants, familiar conceptions of democratic rights and liberties would serve as a test of the deontological constraints necessary for a public goods justification of intellectual property rights. 37
For an example, see Joshua Cohen, ‘Procedure and Substance in Deliberative Democracy’, in T. Christiano ed. Philosophy and Democracy: An Anthology, (Oxford University Press, 2003), and reprinted in J. Cohen, Philosophy, Politics, Democracy: Selected Essays, (Harvard University Press, Cambridge MA., 2009), ch. 5, pp. 154-­‐180. 38
See Annabelle Lever, ‘Taxation, Conscientious Objection and Religious Freedom’ in Ethical Perspectives, no. 1 (2013), 135-­‐141, and the symposium and debate on ‘Obamacare’ and Conscientious Objection, of which it is a part. 39
The contrast between Will Kymlicka and Brian Barry on the question of exemptions can illustrate the point, and the differences between Emanuela Ceva and Kimberlee Brownlee illustrate current debate on the scope for the claims of conscience. See Will Kymlicka, Multicultural Citizenship: A Liberal Theory of Minority Rights, (Oxford University Press, 2000); Brian Barry, Culture and Equality: An Egalitarian Critique of Multiculturalism, (Harvard University Press, 2002); Kimberley Brownlee, Conscience and Conviction: The Case for Civil Disobedience, (Oxford University Press, 2012); Emanuela Ceva, ‘Political Justification Through Democratic Participation: The Case of Conscientious Objection’, unpublished paper presented to the Geneva Colloquium in Political Theory,(December, 2013). 21 But democratic elections can help us to think about the differences between morally acceptable and unacceptable regimes of IP for a second reason – because elections can model different ways of providing public goods, while protecting the legitimate, but competitive, interests of individuals. There are different forms of democracy because there are different ways to interpret and instantiate democratic ideals, values, rights, duties and permissions. Hence, reflection on democratic elections themselves can suggest different models for the regulation of intellectual property rights. In particular, as we will see, the differences between majoritarian and proportional representation can illuminate the range of options for regulating the production and distribution of intellectual property, consistent with the moral and political claims of democratic government. ‘Winner Takes All’ and Proportional Representation There are at least two forms of representation which are consistent with democratic government: the one is majoritarian, the other proportional. On the first, systems for aggregating votes in democratic elections are chosen according to the principle of ‘winner takes all’, with the aim of ensuring, so far as possible, that national elections result in a clear winner, with sufficient votes in the legislature to govern effectively. As Bingham Powell explains, the general rationale of such systems is to enable electoral winners to implement their legislative agenda, and therefore to facilitate effective and accountable government. 40 Conversely, the aim of proportional systems is to include all politically significant cleavages and groupings in a society within the legislature, roughly in proportion to their numbers. Although proportional representation may make government more complex, and make lines of accountability harder to trace, the hope, as Bingham Powell explains, is that inclusion will foster solidarity and a sense of belonging amongst social groups who might otherwise feel excluded, or be at risk of marginalisation by those who are more popular or powerful. Of course, the principles underlying these different forms of representation do not guarantee that the former foster effective and accountable government, or that the latter 40
George Bingham Powell, Elections As Instruments of Democracy, (Yale University Press, New Haven, 2000) ch. 2, pp. 20 -­‐46. 22 foster social solidarity, and Bingham Powell’s book provides a helpful account both of these two models of democratic elections and a fascinating glimpse of how they work in practice. Nonetheless, for our purposes, the important point is that we appear to have two contrasting models of democratic representation which, whatever their respective strengths and weaknesses, can help us to think about the different ways we might approach IP rights on democratic lines. Let’s take them one at a time, before trying to draw some conclusions from their differences and similarities. Democracy and ‘Winner Takes All’ solutions to Socially Useful Competitions. Majoritarian political systems are sometimes referred to as ‘Winner Takes All’ systems, because the political party, or candidate, who gets the majority of votes in a constituency receives all the legislative seats or votes in parliament for which that constituency is eligible. So, whether you ‘scrape home’ by one vote, or win with a majority of thousands, your party will get two MPs in the legislature, if two seats in Parliament are the prize in that competition, or 10 votes in the electoral college, if that is the prize for which you are competing. But ‘winner takes all’ elections are democratic, rather than undemocratic, in so far as one’s status as a citizen is not up for grabs, and so far as elections are fought according to principles designed to protect people’s freedom and equality, as well as their ability to make reasoned decisions about what they ought to do. Democratic forms of ‘winner takes all’ demand effective protections for losers’ status as citizens, and for the freedom, equality, and solidarity which that status requires. Hence, democratic elections put a floor under the losses of losers, and a ceiling over winners, in order to ensure that both winners and losers can see each other as equals. In short, in democratic elections ‘losers live to fight another day’ and ‘those who lose on the swings can gain on the roundabouts’, because defeat in one election, or on one issue, does not guarantee of defeat on all. Obviously, this is a rather schematic picture of democratic elections in majoritarian systems, and in a fuller presentation would need to be qualified in various ways – to distinguish parliamentary from presidential systems, ‘normal’ political parties from those which have non-­‐democratic goals, and so on. But the important point for our purposes is that democratic elections suggest that ‘winner takes all’ can be a legitimate 23 solution to socially useful competitions, even if some critics of IP imply otherwise. 41 However, it is clear that considerable thought and experience has to go into constructing such competitions to insure that the results are fair, whoever it is who wins the election. Thus, ‘winner takes all’ elections, in democracies, are now generally thought to require ceilings and floors on campaign spending by competitors, so that competition centres on the merits of opposing candidates, rather than being affected by extraneous factors, such as the distribution of wealth and power long ago or far away. Because democratic elections are meant to be socially useful competitions, designed to realise ideals of self-­‐
government in ways that are consistent with other democratic values, it is now usual for the state to organise and subsidise these competitions, and to take responsibility for their fairness and for the enforcement and protection of people’s rights. Generalising from the case of democratic elections, then, we can say that ‘winner takes all’ is a fair solution to socially useful competitions only when the terms of competition are deliberately constructed so as to be fair and socially useful, and when they include adequate protections for people’s freedom of expression, association and decision-­‐
making, whether they are winners, losers or bystanders to an election. Winner Takes All and IP Rights What can we learn about IP rights from ‘winner takes all’ forms of democratic elections? One suggestion would be that the enforcement of IP rights, as well as their registration, should be treated as a public good, in the moral and political sense, and therefore be undertaken by the state (or international community), or subsidised, so that rich or powerful companies are not able to intimidate or to ride rough-­‐shod over would-­‐be competitors. It is also desirable to avoid the situation, common in the USA, where the funding of patent offices by the fees of those registering patents creates an incentive to weaken the requirements for successful registration in order to increase fees.42 It may 41
Compare Geert Demuijck’s claim that ‘winner-­‐takes-­‐all markets are essentially unfair’ in ed. Lever p. 273. In support of this claim he cites Frank and Cook’s concern that people tend to overestimate their chances of ‘winning’ because ‘people much more often see the winners rather than the losers’ and because ‘people are notoriously inadequate in estimating their own talents against those of others’. Demuijnck footnote 39, p. 273. These may be reasons to think that winner takes all competitions are likely to be unfair in some cases – perhaps where the stakes are very high for everyone – but they hardly suggest that they are always unfair as a way to distribute scarce goods, in part because these problems could, in principle, be mitigated through adequate information and education. 42
See Seth Shulman, ‘Patent Medicine’, Technology Review, (1995) p.7
24 also be necessary for governments to second scientists from universities and companies to advise patent officers on the latest research, in order to improve the evaluation of patents on the understanding that, as in other areas where citizens are asked to help the government, such secondment involves legally enforceable duties of confidentiality and non-­‐disclosure. It may also be necessary to improve the transparency, publicity and availability of information about the grounds on which patents have been granted or rejected, so that competition is won or lost ‘on the merits’ of the respective parties in ways that are suitably transparent and verifiable. 43 But there is more that we might learn from democratic elections for the treatment of IP rights as a solution to collective action problems. It is clearly consistent with the idea of ‘winner takes all’ competitions, on democratic principles, that we can tailor the ‘prize’ of patent rights in much more egalitarian ways than we do at present and that, indeed, we ought to do so. Put simply, democratic elections, even under ‘winner takes all’ rules, appear inconsistent with the particular package of control and income rights which currently define patents, copyright, trade secrets and trade-­‐marks, under international and domestic law. For example, the constraints on freedom of expression created by existing copyright laws, for those unable to pay the requisite fees, or to secure the requisite approvals, are inconsistent with the idea that IP rights are rewards amongst people whose interests are entitled to equal consideration by government, and who are equally entitled to determine the laws under which they live. Although those principles hardly indicate a determinate number of years for copyright law, they preclude favouring the producers of copyrightable ideas and expressions at the expense of users, since the wellbeing of both groups is of equal importance to the legitimacy of copyright, and the interests of the latter include the ability to hold the powerful to account, to share in the knowledge of their society, and to contribute to it. 43
My concern here is consistent with, though different from, Laura Biron’s discussion of public reason, information and intelligibility as enforceable standards in patenting, in ed. Lever pp. 257-­‐259. As she says, ‘it does not follow from the sheer existence of patents or the sheer disclosure of information about invention on behalf of patentees that others can find, follow or use such information optimally’. While this problem motivates the requirement for patentees to disclose ‘the best mode’ of performing an invention in the United States and Australia, this requirement can be difficult to interpret and enforce. 25 Likewise it is plausible, as Hettinger argued, that patent law should protect ‘independent invention’, as with copyright.44 As Hettinger believes, concerns for economic efficiency do not requires us to force independent inventors to seek license fees, though the costs of determining who is, or is not, an independent inventor may be high, and perfect enforcement cannot be expected. In addition, however, it seems unfair to prevent someone from using ideas that they have created, simply because someone else managed successfully to register them at a patent office first. So, taking seriously the thought that ‘winner takes all’ is meant to answer to ideas of fairness between equals, suggests that protection for independent creation, in patents as in copyright, may be justified given the importance of our ability publicly to acknowledge each other’s creative capacities, and our legitimate interests in developing and exercising them. These are merely two examples of many and, of course, a great deal more thought is required adequately to elaborate them. However, I hope that they are sufficiently concrete to indicate what I have in mind. Proportionality and Socially Useful Competitions The existence of proportional alternatives to ‘winner takes all’ elections reminds us that it is sometimes better to minimise the differences between winners and losers in socially useful competitions, out of a sense of respect and solidarity, as well as for instrumental reasons.45 There is no reason, therefore, why we should suppose that the choice of regulatory regime for economically valuable ideas should be treated as a choice between ‘winner takes all’ or nothing. It is consistent with democratic solutions to the provision of public goods that the state actively seeks to regulate the control and 44
Hettinger, 44 ‘Independent inventors should not be prohibited from suing or selling their inventions. Proving independent discovery of a publicly available patented invention would be difficult, however. Nozick’s suggestion that the length of patents be restricted to the time it would take for independent invention may be the most reasonable administrative solution. In the modern world of highly competitive research and development, this time is often much shorter than the seventeen years for which most patents are currently granted’. The reference to Nozick is to Anarchy, State and Utopia, (Basic Books, New York, 1974), pp. 175-­‐82. Of course, you do not have to be a Lockean to think that the current situation is unfair. 45
For the differences between proportional and consociational electoral systems, see Arend Lijphart, Thinking About Democracy: Power Sharing and Majority Rule in Theory and Practice, (New York: Routledge, 2007), George Bingham Powell, Elections as Instruments of Democracy: Majoritarian and Proportional Visions, (New Haven: Yale University Press, 2000). 26 income rights in the IP bundle,46 in order to make them contingent on a willingness to cooperate with other producers, in a way that gives each an incentive to innovate, and therefore to ‘win’ property rights. Thus, grants of IP protections may depend on a willingness to contribute to a central fund that subsidises the costs of production for smaller producers, and to do so in some rough proportion to income received from IP rights, up to some given maximum. Just as electoral forms of proportional representation may seek to reward losers for competing, so we could regulate IP with a view to rewarding small companies or small artists’ cooperatives, who actively seek to produce socially useful ideas. Sometimes, of course, governments may want to subsidise such efforts directly. But whether they do or not, it may also be desirable to provide some on-­‐going forms of competition which are designed to reward innovation, but to do so in ways that minimise the losses of losers, and, in some cases, actively reward a willingness to compete. The ’proportional model’ of IP rights, if I may call it that, would facilitate the creation and maintenance of a national ‘pool’ of competitors each of whom is, in principle, capable of generating important innovations, though none alone may be capable of dominating in their field, or of withstanding losses from unlicensed copying, or from legitimate international competition. The creative potential of small countries, and of small companies, would be recognised and protected, and the importance of sustaining creative potential in the face of long term challenges, such drug-­‐resistance, or of emergencies, such as zoonotic pandemics, might thereby be fostered without sacrificing the interests of scientists and entrepreneurs in independence, in excellence, and in solidarity. In this way, proportional solutions to the problem of incentivising the creation, distribution and use of productive ideas can be seen as the IP equivalent of 46
My willingness to have the state impose proportional sharing is different, I think, from Pogge’s quest for voluntary pooling and sharing. But I am also not interested, here, in proportioning rewards to a matrix of benefits measured in terms of wellbeing, rather than seeking to achieve other types of fairness. The sort of voluntary pooling and redistribution of rewards that he advocates is perfectly compatible with my qualified forms of ‘winner takes all’, although it would, I think, be harder to implement for the cases which I am here discussing, which involves a fairly substantial form of state-­‐sponsored redistribution of costs and benefits amongst competitors, in the interests of social solidarity as well as utility. 27 ‘niche’ forms of production for tangible goods, as compared to ‘mass’ forms of production.47 Of course this is just a brief and very sketchy presentation of the ways we might apply the lessons of democratic elections to the ways we approach challenges in the production and distribution of ideas. Before closing, I want briefly to respond to two challenges. The first is to the idea of taking political competition as a model for economic competition, and the second is to the challenge of finding market-­‐based solutions to problems of poverty and inequality. Re The Alleged inappropriateness of using politics as a model for economics: A natural question raised by the argument of this paper is whether we can, or should, take politics as a model for economics? After all, one might think, the whole point about markets is that in enabling some companies to fail and others to succeed, they foster collective well-­‐being, and avoid the necessity for state manipulation, intervention and direction of economic affairs. You don’t have to be a rabid free-­‐marketeer to see the advantages of minimising the role of the state in the choice of economic winners and losers. Nor need you suppose that politics should be subordinate to economics in order to wonder whether modelling intellectual property rights on democratic elections would be a good idea, even if feasible. It is wrong to exaggerate the differences between political parties and companies, by assuming that companies must all seek to make a profit – something that is, by definition, and in practice, false for ‘nonprofit’ companies. Moreover, the merits of ‘creative destruction’, through competition, may apply as well to political parties as to companies, although we tend to underplay their advantages for the former, and to overstate them for the latter. We all live in countries where democratic politics has a very significant bias towards the status quo, and where the justification of that bias – or its extent – is rarely discussed. So it is unclear that the empirical differences between political parties and companies must be as sharp as they are at present or that the current situation is normatively desirable. 47
For the comparison of niche and mass production, and their respective economic logics and institutional supports, see Michael J. Piore and Charles E. Sabel The Second Industrial Divide: Possibilities for Prosperity, (Basic Books, 1986). 28 However, setting aside this first objection to my approach leaves the second intact, because it is unclear how modelling IP regulation on either majoritarian or proportional forms of electoral competition will promote access to medicines and other inventions for poor countries and poor people. Clearly, such help as comes from my approach to IP, even if implemented, will mainly be indirect. Reducing global and domestic poverty is an urgent goal, and one that is distinct from a further urgent goal, which is to reduce domestic and global inequality too. However, I tend to suppose that reform of IP rights will be better at doing the latter than at tackling the former. Democratising IP regimes, on the models which I have sketched, seeks to remedy problems of ineffective market demand created by poverty, by making IP regimes more open, accountable and representative. That way a greater variety of people, companies, and countries can develop their creative resources and use them in ways that reflect a credible conception of the common good. Both my revised ‘winner take all’ model and, particularly, my proportional model for organising IP protections, will offer much greater support for ‘niche’ production than is possible at the moment, by putting a floor under losses and by subsidising legal costs of registering and enforcing legal rights. It should therefore be possible for small, specialised companies – or countries – to flourish even though their focus is innovation in solutions for the needs of poor people and poor countries – in medicine, but not only there. Given that national and international organisations constitute a market for goods that help those who are unable to buy what they need, democratising the way we protect innovative and creative ideas helps to ensure that those involved in supplying these organisations have the goal of combatting poverty as a central aim, rather than seeing it as a potentially lucrative side-­‐show to their other activities. Nonetheless, I doubt that there is any purely market solution to the problems of absolute and relative poverty pre-­‐empting effective demand for innovation. But that is no reason to suppose that the goal of democratising IP regimes is impossible or undesirable, or that it is misguided about taking democratic politics as a model for economics. After all, many of these problems have their counterpart in politics. Most democracies urgently need to attend to their failure to engage – rather than actively to denigrate and marginalise – those who are poor, young, and from disfavoured social 29 groups, where high rates of political abstention relatively, and absolutely, mean that ‘political demand’ is low and/or unpredictable. The idea of democracy as a public good has been associated with the idea that compulsory voting is a desirable and acceptable solution to such problems. As I have argued elsewhere, such arguments wrongly construe non-­‐voters as free-­‐riders, and mistakenly construe high turnout as a public good, on the assumption that it is a good proxy for legitimacy. 48 Democratising politics is urgent and important. But the best way to do that is to break down the barriers to representation and political participation which people face at work, as consumers, and as the users and providers of public services such as transport, healthcare, education, policing and the law. Democratising IP regimes, and other areas of our economies, forms a necessary part of that process. Hence, while I agree with Hettinger that ‘we must begin to think more openly and imaginatively about the alternative choices available to us for stimulating and rewarding intellectual labor’,49 I have tried to show that we might also look to democratic elections as a model for a more open and imaginative approach to the justification of IP itself. 48
See, for example, Annabelle Lever, Compulsory Voting: A Critical Perspective’, British Journal of Political Science, 40.4, Autumn 2010, 897-­‐915 and ‘Democracy and Voting: A Reply to Lisa Hill’, British Journal of Political Science, 40.4, Autumn 2010, 925-­‐929. It was my interest in compulsory voting which first made consider democratic elections as a public good although, as I explain in these articles, it is a mistake to treat non-­‐voters as free-­‐riders, in the way suggested by many proponents of compulsory voting. 49
Hettinger, p. 52.