What makes a particular creation a grand success? To me, this is the (so far) unanswered question in the philosophically minded first half of “Justifying Intellectual Property.” Professor Merges focuses, in his discussion on creators, on the oft-debated proportions of how much society and an individual, respectively, contribute to a particular creative work. This is so far beyond my knowledge that I instead ask two related questions. First, how much of the success that a particular creation has hinges on the creation itself, and how much depends on what we might think of as circumstance? Second, does the distinction between a novel product and an alteration of an existing product give us any guidance in making intellectual property guidelines if the two products have the same market effect?
In short, I think we answer the first question very differently depending on the field, whether we are wondering about the arts or the hard IP of technology companies. Merges gives due credit in his discussion of Jo Rowling to both her fortunate upbringing and her particular will in completing the first Harry Potter installment.[1] This distinction creates a compelling basis for his apparent endorsement of tax revenue from her income flowing back through the British state. But it is not clear to me that we understand what makes Harry Potter sell so dramatically more than “His Dark Materials,” or any other fantasy series for that matter. In other words, I think Merges needs to address the question of to what extent Rowling deserves her own reception, and to what extent it is the result of a fortunate context.[2]
Furthermore: compare, for fun, Salvador Dalí and Pablo Picasso. I believe that Pablo Picasso was consistently at the forefront of multiple artistic waves in Western Europe (cubism, surrealism, at least), but that other artists (Braque, for example) were almost equally responsible for the developments of those waves. I believe also that Salvador Dalí essentially spawned a painting form that was never actually recreated by another artist. A little crazy, I know, but pretend for a moment that I am right. Clearly each was a genius and both were incredibly successful. But we must believe that some artists are successful because they create something totally novel (for me, Dalí) and some because they perfect a form that is already in existence (for me, Picasso). They are both entitled to the same level of intellectual property protection, but should they be? Generalizing away from the high arts, we can recognize that both novelty and the perfection of an already existing product can generate huge success and both are often protected by intellectual property schemes.[3] But do we value both kinds of creation equally? Might that distinction affect the way we distribute any resulting prosperity?
To bring this discussion home, we might discuss any of the hugely successful technology products we see everyday. We might think that Google perfected e-mail, or that Apple perfected the cell phone. We might also believe that Microsoft did more of the grunt work behind the popularity of personal computers, and we remember when AOL brought many of us e-mail for the first time. But Apple and Google are reaping arguably more of the benefits from perfecting and releasing their products in the context of already-budding industries.
That might be fine if we value the perfection of products and the novel creation of products similarly, and if we think the same proportions of individual will and societal backdrop go into each type of creation. Personally, I do not, and I do not think I can justify intellectual property without a stronger protection for novel paradigm shifts than for perfections and compilations—even if they have identical market effects. I believe this comes intuitively from a sense that what makes a novel creation successful is a larger proportion of individual will or talent, and that a larger proportion of societal context and fortunate circumstance makes perfection and compilations successful. This may be empirically wrong. Either way, I think the distinction between novelty and perfection merits some consideration in any justification of intellectual property.
[1] Talk about a fortunate upbringing: http://en.wikipedia.org/wiki/Bill_Gates#Early_life
[2] Two caveats. I was an avid Harry Potter reader and think that Ms. Rowling is great. And I recognize the dangers of blogging about proportionality when it is the title of the next chapter in our reading.
[3] Dalí : Microsoft :: Picasso : Apple?
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