What stroked me the most about Merges’ book is how the author started it. The author admitted something very hard to admit by people who defend the IP system: there is no empirical evidence that we are better off in a world with IP than in a world without IP (“I simply cannot justify our current IP system on the basis of verifiable data showing that people are better off with IP law than they would be without it”).
If that’s true, what is the support that Merges present? Believe it or not, faith! (or as Yohsuke said in his post, hope). Merges himself explain this:
“Here is an analogy: Say you and I are scientists, old pals from way back who have worked long and hard in the lab in our chosen field. Suddenly I am plagued by doubts about where nature came from, why it is the way it is. I read widely and decide there is some sort of unseen intelligence, some higher power behind the whole thing, that set the universe in motion. My doubts go away and I rejoin you in the lab. My day-to-day work does not change, but I am somehow more serene about the whole enterprise, I have found a grounding for it that makes sense to me. That’s what the normative grounding in Part I of this book is like-it helps me push on through foundational doubts.”
I have to admit that this confession of the author gives me serious doubts about the real support of his arguments (probably that’s why after reading the first 5 chapters I could say that I disagree with Raphael in considering this book “the best book I have ever read regarding fundamental justifications of Intellectual Property”). For me faith is not good enough to support a legal system like IP.
This scream for faith in the system may explain why Merges tried to find some justification for the IP system by using concepts elaborated by Locke, Kant and Rawls that don’t fit to the “world of ideas” (as Asher and Melanie points in their posts). In the next paragraphs I want to make some brief comments about two topics that arise from Merges’ book.
Locke and his idea of Labor
Using Locke’s theories Merges raises a kind of “moral” justification for the IP system. We can summarize his position like this: If every human being (naturally) owns his labor, we should recognize property to every creation he makes with it.
The first thing that we should take in account is that labor itself is not enough justification. Actually, the IP system recognizes it very clear. That’s why the system only gives protection to certain kind of ideas created by men, not to all. Indeed, there is an important amount of ideas developed by man (with effort and labor) that are not protected by IP. If Merges is right and “labor” is the (moral) justification for property rights, we should give protection to any idea (considering that the development of any idea requires some labor).
Probably because of the weakness of this justification, Merges smoothly introduce a “utilitarian” perspective. Even when Merges said that his justification is far away for utilitarianism, it is not. Indeed, Merges accept that Locke’s idea of “labor” as a justification for property relies in the incentives it creates: without property individuals are not going to have the right incentives to work (create new ideas in the case of IP) because they are not going to obtain profits from it.
About this Merges said:
“Few would bother laboring to recast, reshape, or improve them if that work had to be shared with all comers”.
“Crowning this labor with property serves two ends: it honors the effort involved and calls forth more of it.”
“My use may not take the information out of your hands; but it may take some money out of your pocket”.
“The need to survive and thrive therefore justifies removal from nature”
But, if the justification relies again in the goal of creating incentives for the development of new ideas, we faced what Merges himself already accepted: There is no evidence that without IP people are not going to have the right incentives to create new ideas.
As a matter of fact, reality shows us something different. A very good example is the music market. In this market, for example, the changes in the business model shows us that without IP we still can generate incentives for the development of new ideas. As Merges said, right now “(…) the de facto zone of freedom for consumers of IP (…) is really quite large (…)”, but still we can find people creating new ideas (and making profits of it!).
Even Merges accepts the need of changing the business model in the market of ideas, when he said: “Those who sell cultural products that significantly restrict freedom will either have to make those products especially attractive (to offset the loss of value to consumers occasioned by the greater restrictions), or change their policy on restrictions”.
Exclusion costs
Merges avoid any reference (unless in the first 5 chapters) to the costs of exclusion and administration of the system.
Any legal system needs enforceability to work. A legal system without enforceability is doomed to fail. The problem is that enforceability costs. And some time cost very much.
If we want to shape an efficient system we cannot analyze it in abstract. We must take in account the real possibility of applying it to the real world. In the case of IP we crashed against a wall: new technologies make almost impossible to enforce the IP system. The cost is too high and (as Merges accepted) we don’t know if the benefits of the system are higher than the costs.
It is important to notice that Merges accept this problem when he said that “(…) enforcement costs in IP can be very high; so it is often financial constraints that prevent holders of IP rights from enforcing them”. If that is true, how we can enforce a system like this?
I don’t deny that is important to give people a way to make profits with their ideas (and so, create incentives for the creation of new ideas). But, is the property right system the only way? Probably the better way is to accept that the new era and the new technologies are leading us to a different approach. Maybe the solution is more a business model one, than a legal one.
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