Jan
25
IP’s purpose: economic incentive or progress?
Posted by Dirk Avery at 6:17 am under Copyright, Incentive, Patent.
Article I, Section 8, Clause 8 of the US Constitution, often referred to as the Intellectual Property Clause, states: “[Congress shall have the power] To promote the Progress of Science [knowledge] and useful Arts [technology], by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Patent and copyright are generally considered economic incentives for discovery and authorship, which, in general, they are. However, like the other enumerated powers, the IP clause includes the end or purpose to which the power is to be used: “To promote the Progress of [Knowledge] and [Technology].” Confusing the economic-incentive means with the progress end, distorts copyright and patent. For example, if economic incentive for creation is the end, then statutory protection of author’s and inventor’s rights becomes the means. More rights simply provide more economic incentive. Taken to the logical extreme, such a policy’s weakness becomes evident. Eventually, so much protection will be provided that it thwarts creation and discovery. If, on the other hand, “Progress” is properly regarded as the end, the end, by definition, will serve as a limit on the means, incentive, so as to optimize creation and discovery.
The original patent term in the Patent Act of 1790 was 14 years. Today the term is a modest 20 years minus an average 2.5 year prosecution time. Copyright, under the 1790 Act, also originally had a term of 14 years. Today, however, copyright lasts for the life of the author plus 70 years, or 95 years for corporations.