Boyle’s Thoughts About Current Intellectual Property Policy
But fundamental changes need to be made in both role and attitude if the organization is to serve its real goal - the promotion of innovation in science, technology and culture for the benefit of the peoples of the world.
Trademarks (and the related ‘trade dresses’) meanwhile protect consumers from ‘mistake, confusion and deception’ about the sources of commercial goods: the ‘G’ in Gucci, Apple’s apple, a distinctive packaging. Finally, there are trade secrets, or secret information that confers economic benefits on its holder and is subject to the holder’s reasonable efforts to maintain its secrecy.
Using the environmental movement as an analogy, I pointed out that a successful political movement needed both a set of (popularisable) analytical tools and coalition built around the more general interests those tools revealed. Welfare economics and the idea of ecology showed that "the environment" literally disappeared as a concept in the analytical structure of private property claims, simplistic "cause and effect" science, and markets that do not force the internalisation of negative externalities. Similarly, I claimed the "public domain" is disappearing, both conceptually and literally, in an IP system built around the interests of the current stakeholders and the notion of the original author, around an over-deterministic practice of economic analysis and around a "free speech" community that is under-sensitized to the dangers of private censorship. In one very real sense, the environmental movement invented the environment so that farmers, consumers, hunters and birdwatchers could all discover themselves as environmentalists (David Lange, 1981). Perhaps we need to invent the public domain in order to call into being the coalition that might protect it. Is the environmental analogy of only rhetorical or strategic value, then? For my part, though I would be happy to acknowledge its imperfections, I would say that it also shows us some of the dangers inherent in the kind of strategies I have described. Right now, even under a purely instrumental economic analysis it is hard to argue that intellectual property is set at the appropriate level. Just as the idea of "activities internalising their full costs" galvanised and then began to dominate environmental discourse, the economic inadequacy of current intellectual property discourse has been emphasised by skeptics. But the attraction of the economic analysis conceals a danger. The problems of efficiency, of market oligopoly and of future innovation are certainly important ones, but they are not the only problems we face. Aldo Leopold expressed the point powerfully and presciently nearly fifty years ago in a passage entitled "Substitutes for a Land Ethic."
We need a politics—an analytically and rhetorically sophisticated political economy—of intellectual property, and we need it now.
William D. Ruckelshaus, Environmental Protection: A Brief History of the Environmental Movement in America and the Implications Abroad, 15 Envtl. L. J. 455, 456 (1985).
Jane C. Ginsburg, Putting Cars on the "Information Superhighway": Authors, Exploiters and Copyright in Cyberspace, 95 Colum. L. Rev. 1466 (1995).
Paul Goldstein, Copyright, 38 J. Copyright Soc'y of the U.S.A. 109, 110 (1991) (emphasis added.)
David Lange, Recognizing the Public Domain, 44 Law and Contemp. Probs. 147 (1981).