Patents are rights, not privileges; Jefferson story is “historical myth”
Is it any wonder why patents are widely despised and holders mistrusted?
Patents and other IP rights have been caught in the perfect storm of anger towards the government, the entitled, and ideas too complex to fathom on Instagram.
Patents are difficult to explain and uncertain in nature. To many people they represent inscrutable and insurmountable barriers to entry that are erected with government sanction and controlled by an elite class of corporations, lawyers and speculators acting on their own behalf.
Ten-Second Lesson
Many people are introduced to the world of IP by nasty anti-piracy notices: two ten-second screens on the head of DVD and Blu-Ray discs that the viewer is forced to sit through.
That may or may not be an effective piracy deterrent, but it is a hell of a way to introduce viewers, especially young people, to copyright protection. It would not make a believer out of me. Surely, the government and motion picture industry can do better.
Such warnings are accompanied by an advisory that “For more information about how digital theft harms the economy, please visit, www.iprcenter.gov.”
I doubt that anyone (other than IP CloseUp) is dumb enough to actually visit the IPR Center. Did you know that it is home of National Intellectual Property Coordination Center, which is run by the U.S. Immigration and Customs Enforcement (ICE) and Homeland Security Investigations (HSI)? I did not know that.
Its website explains that the IPR Center “stands at the forefront of the United States Government’s response to global intellectual property (IP) theft and enforcement of its international trade laws.”
Heavy Baggage
In “The perils of privilege” in the September issue of IAM Magazine, I weigh some of the heavy baggage that accompanies IP ownership, especially patents, which to this day still are confused with royal grants of authority bestowed by English monarchs.
“In reviewing primary historical sources in the eighteenth and nineteenth centuries, it is apparent that the Jeffersonian story of patent law [as privilege] is a historical myth,” writes George Mason Law Professor Adam Mossoff in a provocative 2007 article in the Cornell Law Review, “Who Cares What Thomas Jefferson Thought About Patents?”
“Judge Rich once criticized labeling patents as monopolies due to the negative ‘emotional’ baggage that the term ‘monopoly’ carries with it. He recognized that ‘talk of the patent monopoly weds patents to prejudice, which is not conducive to clear thinking.’”
Modern patents are not privileges, but natural rights and may present an opportunity for the holder, in rare circumstances, to profit for a limited period of exclusivity in exchange for disclosing information about an invention. Patents are about sharing ideas to inspire more and better ones, and facilitating new and occasionally important improvements. They are natural rights, not monopolistic grants of privilege.
Blurred Lines
In a digital world, the line between ownership and fair-use continues to blur. Walking off with other people’s IP is as reflexive as going to the tap for a drink of water. To be fair, it is not always clear who owns what.
Violating the IP rights of others is more widely regarded as acceptable than perhaps at any time in American history. It is difficult to know who or what is responsible. One thing is for sure, educators and lawmakers are ill-equipped to answer the most fundamental questions about patents: why do they exist and whom do they benefit?
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Image source: upfromslavery.com; iprcenter.gov