Intellectual Property

Is 'Balanced Intellectual Property' Code For 'Anti-Intellectual Property'?

Advocating for a balanced IP system actually encourages more creative works and innovations.

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I often write about some of the crazy claims of copyright, patent, or trademark infringement, the ways rightholders try to exploit loopholes to protect their monopolies, and complain about overprotection and misuse of intellectual property rights. Because I like to talk about what I consider to be particularly egregious examples of overprotection and point out where our system doesn’t work, people sometimes ask me if I’m anti-intellectual property. The answer? Of course not.

The intellectual property system supports innovation, providing an incentive to create by giving the rightholder an exclusive monopoly to exploit, use, or prevent others from using a particular work or invention. The rightholder can invest time, energy, and resources into creating and inventing with the hopes of recouping a financial reward. While the intellectual property system creates this incentive, advocating for balance — for the rights of users — isn’t anti-intellectual property. In fact, it is completely in line with a functioning copyright or patent system.

There are, of course, examples of where intellectual property wasn’t necessary to discovery and creation. Jonas Salk famously did not patent the polio vaccine, for example. There may be alternatives to copyrights and patents to incentivize creation, such as prizes or direct government funding. But, looking at the current system, there is no denying that intellectual property protection has provided powerful incentives. Some of the most entertaining feature films were created precisely because the rightholder is willing to invest time and money with the expectation of exploiting the monopoly rights of copyright — and thank goodness for that, because I like The Avengers franchise as much as the next person. Pharmaceutical companies invest millions into research and development in the hopes of reaping the reward of a breakthrough drug.

While I can acknowledge that exclusive rights can provide powerful incentives, it is also important to recognize the role of balance in a functioning intellectual property system. Nothing is created in a vacuum and new culture and innovation relies on information that already exists.

Take almost any popular animated Disney film. Cinderella, Beauty and the Beast, Sleeping Beauty, Aladdin, The Little Mermaid, Mulan — all based on public domain folktales, and represent a tiny fraction of the Disney universe that relies on old stories. While Disney provides the most obvious and well-known examples, there are many more from almost every artistic field: film, literature, music, paintings, you name it.

James Joyce relied on The Odyssey in his novel, Ulysses. Some of the great classical composers copied from each other, with Schubert, Mendelssohn, and Brahms all borrowing from Beethoven; Beethoven borrowing from Mozart; Mozart borrowing from Haydn, and so forth. Andy Warhol is a noted “appropriation” artist, copying many images and transforming them in his pop art style. The painting Las Meninas by Diego Velazquez was copied and interpreted by other famous artists, including Picasso, Goya, and Dali. Some of my teen/pre-teen self’s favorite movies were based on classic literature like Clueless — based on Austen’s novel, Emma — or 10 Things I Hate About You, based on Shakespeare’s play Taming of the Shrew. Musicals West Side Story and Kiss Me Kate are similarly retellings for Shakespeare’s works. Plenty of other examples are collected in this paper, “Nothing New Under the Sun.”

This very practical fact — that all innovation and creation depends on innovations that came before it — guides the United States’ intellectual property system. The Constitution’s intellectual property clause grants Congress power “[t]o 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.” The entire purpose is to promote progress, which cannot be accomplished with unfettered power around patents and copyright. The founders make clear that balance is critical, noting that monopolies may only last “for limited times.”

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Indeed, SCOTUS has repeatedly acknowledged the bargain of the intellectual property system which, ultimately, supports progress and the public interest.

In the 1966 patent case, Graham v. John Deere Co., SCOTUS pointed out that the intellectual property clause, “is both a grant of power and a limitation . . . The Congress in the exercise of the patent power may not overreach the restraints imposed by the stated constitutional purpose. Nor may it enlarge the patent monopoly without regard to the innovation, advancement or social benefit gained thereby.” Similarly, in a 1975 copyright case, Twentieth Century Music Corp. v. Aiken, the Court said, “The limited scope of the copyright holder’s statutory monopoly . . . reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts. The immediate effect of our copyright law is to secure a fair return for an author’s creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good.” Going back even farther, in 1858’s Kendall v. Windsor, the Court stated, “It is undeniably true that the limited and temporary monopoly granted to inventors was never designed for their exclusive profit or advantage; the benefit to the public or community at large was another and doubtless the primary object in granting and securing that monopoly.”

In line with the Constitutional rationale for the intellectual property system, SCOTUS has repeatedly acknowledged the important of balance. For example, in the 1984 case of Sony Corp. v. Universal City Studios, the Court explicitly states that the intellectual property system “involves a difficult balance between the interests of authors and inventors in the control and exploitation of their writings and discoveries on the one hand, and society’s competing interest in the free flow of ideas, information and commerce on the other.” SCOTUS has explicitly pointed to the dangers of overprotection, such as the 2010 patent case of Bilski v. Kappos which found that “[i]f a high enough bar is not set when considering patent applications of this sort, patent examiners and courts could be flooded with claims that would put a chill on creative endeavor and dynamic change.”

The copyright and patent system in the United States acknowledges both the need to incentivize innovation as well as the need for public access. It is a utilitarian view that promotes further creation. Advocating for a system that incentivizes the creator or inventor while simultaneously protecting the interest of the public isn’t an anti-intellectual property stance, it’s one that encourages more creative works and innovations.

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Krista L. Cox is a policy attorney who has spent her career working for non-profit organizations and associations. She has expertise in copyright, patent, and intellectual property enforcement law, as well as international trade. She currently works for a non-profit member association advocating for balanced copyright. You can reach her at kristay@gmail.com.

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