Liddicoat, John --- "Against Intellectual Monopoly by Michele Boldrin & David K Levine" [2011] JlLawInfoSci 11; (2011) 21(1) Journal of Law, Information and Science 198

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Against Intellectual Monopoly

Michele Boldrin & David K Levine

Cambridge University Press (2008) ISBN:

270 pgs (plus appendices)

There is little doubt that intellectual property (IP) has a chequered past. From historical bequeaths of monopolies for playing cards to the control of the printed word, many would argue that the practical outcomes of IP regimes could only improve over the several hundred years that they have existed. Despite this, many IP issues today seem to be just as controversial and potentially detrimental as ever. Whether it is domestic access to drugs, tests for cancer, delayed or abandoned research, increased prices, pirated music, market manipulation or lack of medication to third world countries; it seems as pertinent as ever to question IP’s efficacy.

It is trite to state that monopolies are bad for economic and social welfare in our society. Accordingly, whether a world with IP regimes is better off than a world without them is a debate that deserves continual attention. For this reason, Boldrin and Levine’s Against Intellectual Monopoly is valuable, they consistently (and at times vehemently) take the view that copyright and patent law should be abandoned and do so in a form accessible to the lay person. There is no doubt that it is important to communicate intellectual property principles to lay people; IP regimes’ outcomes affect everyone. Subsequently, the authors’ examination of topics such as copyright extensions, pharmaceutical innovation, fashion and other issues are pertinent.

An interesting facet of Boldrin and Levine’s book is that many historical events are contextualised using an economist’s lens. One example is the authors’ first discussion of James Watt’s steam engine. A scenario in which up until the expiration of the patent, Watt and his business partner spent a significant amount of time in court extracting royalties. The authors bring evidence to show that Watt delayed innovation through various means including litigation and it was only when the patent expired that power in steam engines really accelerated (significantly influencing the industrial revolution). Their primary argument in this analysis is that the amount of time and money spent in court significantly detracted from effort that could have been directed into improving the invention; a scenario that would have been realised if a patent regime was not available to ‘protect’ Watt’s invention.

Whilst the authors show how Watt delayed subsequent innovation, they do not address the vital issues of how long it would have taken for the steam engine to arise without Watt’s successful commercialisation or what lessons could be learned to guide patent law into the future. The authors imply that if IP protection was not available, his product would have entered the market and by regular market forces a more efficient outcome with increased innovation and greater distribution of the invention would have occurred. What is not discussed is that Watt actually had significant trouble in the commercialisation of his steam engine and it was only with the help of one business partner in particular that it actually occurred. Accordingly, if commercialisation was difficult, would it have occurred at all without the patent rights that secure a means for investors to make money on their investment?

Boldrin and Levine’s colourfully titled chapter, ‘The Devil in Disney’, substantially deals with legislated retroactive extensions to copyright. An analysis of the economics of music and a contextualisation of the politics surrounding the extension raises some excellent points and does tend to indicate that the extensions are not needed to encourage creativity so much as protect a cash cow and a way of doing business. Maybe the most compelling argument is that if copyright is designed to encourage dissemination of creativity, then if the dissemination of creativity has already occurred, then surely no more ‘encouragement’ is needed. The authors use these arguments to bolster their position that copyright should be abandoned, however other conclusions can be drawn. For example, what are appropriate copyright based rewards for different types of artistic expression?

Boldrin and Levine also use as example the US Government’s 9/11 report to argue for the removal of copyright. They argue that in this unique example of the government allowing one publisher to release the report on the same day as the government, and use the term ‘authorized’ in the title, that this is cogent evidence of modern literary success without copyright. This conclusion is arrived at because the non-government publisher had no right to prevent other publications of exactly the same text (giving rise to other publications on the shelf within two weeks) and the government allowed free copies to be downloaded from its website. By corollary the authors then argue that J K Rowling’s Harry Potter and the Half-Blood Prince could also expect to make millions without having copyright because in the first few weeks the books sold almost 11 million copies.

This analysis is very interesting and is a classic application of economic principles. However, the 9/11 analysis seems to imply that everyone knew they could get free access to the report online (something most people probably did not know) and that people were either happy to print it or read it on their computer (something that probably at the time was not true either). Subsequently, handing over $10 to a publisher who does not have to pay the author seems like a good deal to the purchaser and the publisher. But how does this apply today with the rise of e-book readers and the reality that J K Rowling’s books sell for almost $50 in their first few weeks on the market? Moreover, J K Rowling may still make a fortune without copyright, but if copyright is removed, how does an author even get into the position that Rowling now occupies? How does a lack of copyright fundamentally change the market for the creation of literary works? Two things would be certain: many people would probably consider investing in scanners with page turning devices and the public would actually become aware that they only have to wait hours to get a ‘free’ version of their favourite author’s new title.

One of the authors’ last chapters is dedicated to the pharmaceutical industry. Amongst other issues the authors analyse the historical creation of pharmaceuticals and where modern funding comes from for biotechnological research (and medical milestones). Here the authors argue that because milestones and pharmaceuticals have arisen before without patent protection and this occurs frequently by public money, then patent law is only protecting certain business interests.

This is where writing a lay book on IP protection and economics really comes to a head. The authors throughout the book argue that ideas are patentable. Obviously, this is not true and although it seems like splitting hairs to a lay person, it is not. Subsequently arguing that the milestones of ‘germ theory’, x-rays or public sanitation were not patented is misleading. Similarly, analysing the pharmaceutical industry without making the distinction between discovery and development (as a general rule most public money goes to the former, but private money goes into the latter) and specifically not answering the question of how a private company can, without patent protection, raise tens of millions to conduct the modern, rigorous clinical trials that are now required, detracts from the end conclusion that patent law should be abandoned.

Throughout Boldrin and Levine’s book their ratiocination relies heavily on simplified economic and legal principles and contextualised historical events. In many ways the book contributes to the field by attempting to convey complex arguments in a simplified and colourful manner. Whether their arguments are consistently compelling is open to interpretation. Similarly, whether their arguments are better evidence for law or policy reform is also open to interpretation. But perhaps that is the whole point of this book. By polemically arguing for the abolition of copyright and patent law, middle ground is more likely to seem desirable.

John Liddicoat, LLB (Hons) BSc (Hons) (Melb)