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In Praise of Copycats

In this weekend’s Wall Street Journal, Kal Raustiala and Chris Sprigman have penned a thoughtful piece on the relationship between innovation and intellectual property. It’s called “In Praise of Copycats,” and it’s excerpted below.

The conventional wisdom today is that copying is bad for creativity. If we allow people to copy new inventions, the thinking goes, no one will create them in the first place. Copycats do none of the work of developing new ideas but capture much of the benefit. That is the reason behind patents and copyrights: Copying destroys the incentive to innovate.

Except when it doesn’t. There are many creative industries, like finance, that lack protection against copying (or did for a long time). A closer look at these fields shows that plenty of innovation takes place even when others are free to copy. There are many examples of successful industries that survive despite extensive copying. In fact, some even thrive because they are so open to copying.

The empirical case for intellectual property has not been proven (of course, finding a control group is difficult), and it seems as though many are successfully plying their trade in industries where copying is permitted. Ralph Lauren, for example, does not find it hard to land a paying job despite the lack of copyright protection for his designs. Vanguard Funds found no difficulty attracting billions to its S&P 500 index fund despite the lack of a process patent.

But it seems to me that the real question is whose interests a putative system of intellectual property is to protect. Is it more important to create a strong property right in patents, copyrights and trademarks so that inventors and their business interests are protected? Or is it more important to loosen the system so that the general public reaps the benefits? Ultimately, that seems to be the tradeoff.

I would personally prefer the latter, not just for the social consequences, but because the property right to what we now call intellectual property is a synthetic one anyway. It finds its justification more in the law than in first philosophy.

But given that, wouldn’t we do well to determine the legal foundations of intellectual property? Of course, we have to turn to Article 1, Section 8, Clause 8 of the U.S. Constitution:

To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

“To promote the Progress of Science…”? Interestingly, this assumes that granting a private property right as such would do so. On the other hand, if it does not, then perhaps the legal protection of intellectual property is ironically unfounded.

In areas as diverse as fashion, finance and football, intellectual property is unprotected, and not only does the consumer ultimately benefit, but it certainly seems as though progress is not hindered. Perhaps there’s something to the copycats after all.

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