Abiola Lapite is somewhat nonplussed to find himself agreeing with John Quiggin:
Posted by DeLong at August 9, 2004 09:45 AM | TrackBack | | Other weblogs commenting on this postForeign Dispatches: Something on Which We Agree: I rarely agree with John Quiggin on political matters, so when such an instance does arise, it's worth commenting on. Today he makes an excellent case against the Australia-USA "Free Trade" Agreement, which turns out to be little more than an excuse for America to foist harsh intellectual property laws on the Australians.
I know that “Trade agreement said harmful to small faraway country” is the stereotype of a boring newspaper story, but this one is really important to Americans as well as Australians, and to anyone interested in health policy. If you ever hope to see affordable health care in the US, you’d better hope that (against all the odds) this agreement falls at the final hurdle.
Although it’s called a Free Trade Agreement, it’s nothing of the kind. Australia has hardly any trade barriers to speak of, and the US has given very little ground on its barriers and subsidies. The important bits of the agreement are those relating to intellectual property and (closely related) pharmaceuticals. In both areas, the Americans have pushed Australia to adopt the strong IP approach prevalent in the US, which of course is primarily concerned with preventing people from producing and marketing products covered by patents and copyrights. In other words, it’s a free trade agreement that’s primarily concerned with making trade less free.
On IP, the main, though not the only, concession made by Australia has been lengthening the term of copyright from the life of the author + 50 years (already overly restrictive) to life + 70 years. For some examples of the kind of nonsense copyrights on the works of long-dead authors can produce you need only look at the recent squabbles over This Land is Your Land (written more than 60 years ago) and Ulysses ( written set 100 years ago and completed more than 80 years ago)
The real action though, is in pharmaceuticals. Under the Pharmaceutical Benefits Scheme, the Australian government bargains with drug companies over bulk purchases of pharmaceuticals which are then sold at subsidised prices to the public. Before drugs can be included in the scheme, they undergo a cost-benefit assessment by an advisory committee. Big Pharma hates this, not so much because of the loss of profits in Australia as because of the fear that the US government might one day follow the Australian example. They managed to get Congress to pass legislation demanding that the Administration report on progress in “opening up” the Australian market. Then in the FTA, they inserted a clause allowing US drug companies to seek a review of unfavorable decisions, and some additional clauses about patent protections. The Australian government said that this concession was meaningless, and kept on saying it until they were black in the face.
For once we see eye to eye on something, though I myself am more exercized by the intolerable length of copyright required by the agreement than I am by the pharmaceutical agreement, which says something or other about my own values I suppose.
Anyway, I know that there are those who will make the argument that IP needs protection because it strengthens the incentive to innovate, yada yada yada, to which I can only respond "thanks for the arguments, but I've heard them all before, and in any case I believe in them myself - up to a point." It's one thing to make a pragmatic case for some degree of intellectual property protection, but it doesn't necessarily follow from it that more protection is always for the better; honesty demands that we recognize that there are costs as well as benefits to the enforcement of intellectual property rights, and that where the United States at least is concerned, the deadweight loss of the laws currently on the books now outweighs the purported benefits. Who, on sitting down to write a book or a play, says to him or herself "It'll only be worth seeing through if I can hold the copyright for 70 years after my death, and not a day less!"
Re excessive copyright:
In my field, which (believe it or not) is a technical one, copyright of "author's life plus 70 years" means that if the law is respected, a great deal of vital, intellectual work will simply be lost altogether. By the time we wait until copyright is over & the work in public domain, no one will remember the author nor why their work was important. So, as so often in my field, someone may later unwittingly "rediscover" or "reinvent" the same old thing, perhaps better, but perhaps not. Continually reinventing the past (it's not guaranteed, we are fortunate if it happens at all) means we do not learn from the past, we hardly advance at all.
When copyright was extended in the early 1990's, a lot of previously public-domain stuff was suddenly under copyright again. This, on the face of it, would appear to have criminalized many reprint houses, such as mine.
Posted by: Dave of Maryland on August 9, 2004 10:09 AMWhat Dave said. That extension was pushed by (inter alia) Disney, and all it was was an incentive NOT to create new characters/works. (Hence all the "Disney Princess" paraphernalia/crap now flooding the market: All it is, is repurposed intellectual property that long ago should have entered the public domain.)
W/r/t pharmaceuticals, I'd be a hell of a lot more tolerant of an aggressive IP stance if accurate accounting were taken of the amount of tax-funded research that often goes into producing these pharmaceuticals. But it doesn't look to this layperson as if that's on the horizon.
Posted by: Lex on August 9, 2004 10:13 AMQuiggin has a nice post on ways to pay for pharma research.
Posted by: theCoach on August 9, 2004 10:25 AMI heard it was the Disney & Gershwin estates. The late Sonny Bono was said to have pushed for it.
Posted by: Dave of Maryland on August 9, 2004 10:39 AMhttp://www.crookedtimber.org/archives/002283.html
That is the link for the above mentioned post - and I meant to have an 'also' or an 'as well' in there somewhere.
Posted by: theCoach on August 9, 2004 10:40 AMOverprotection of intellectual property is nothing but overtaxation by another name, with the proceeds redirected to private interests.
While a properly balanced patent, copyright and trademark system benefits competition by permitting recoupment and profit for beneficial inventions and discoveries, works of authorship, and designations of source or sponsorship respectively, overprotection of these assets leads to substantial deadweight loss, necessitates cartel behavior and vertical integration in major industries, and blocks new innovation by new entrants.
Nothing will be done about this until someone changes the tenor of the argument. This isn't some "free the mouse" campaign we are talking about. This is the massive overtaxation of the American people and businesses in dire need of tax relief -- I hate to use the Laffer curve as an analogy, but its an analogy that works.
Posner & Landis are on to this. Another book will be coming out soon. And if not careful, certain well known cartels could face a massive consumer backlash if IP rights and DRM are used as a market power lever to effectively, via contract, remove all remaining fair use, private use, and possible competition from small upstarts.
We need relief from "the patent tax." Its that simple.
Many IP attorneys and specialists agree, but our profession and our lobbying groups (AIPLA, ABA IP Section, etc) are victims of "market capture" just as we are.
Posted by: patentbuster on August 9, 2004 10:47 AMThe extension of copyright to today's absurd term is also evidence that a debate in Congress will only occur if there are well-funded special interests for both sides, as in insurance companies vs. trial lawyers or chemical companies vs. environmental groups.
With the copyright bill, there was no comparable counterbalance to big media, which also controlled the presentation of the issue on TV and in print, so there was no debate, despite the fact that the public interest certainly called for defeat of copyright extension. But it wasn't even close. It kind of makes you sick to think about it.
Posted by: wetzel on August 9, 2004 12:27 PMThe extension of copyright to today's absurd term is also evidence that a debate in Congress will only occur if there are well-funded special interests for both sides, as in insurance companies vs. trial lawyers or chemical companies vs. environmental groups.
With the copyright bill, there was no comparable counterbalance to big media, which also controlled the presentation of the issue on TV and in print, so there was no debate, despite the fact that the public interest certainly called for defeat of copyright extension. But it wasn't even close. It kind of makes you sick to think about it.
Posted by: wetzel on August 9, 2004 12:27 PMThe extension of copyright to today's absurd term is also evidence that a debate in Congress will only occur if there are well-funded special interests for both sides, as in insurance companies vs. trial lawyers or chemical companies vs. environmental groups.
With the copyright bill, there was no comparable counterbalance to big media, which also controlled the presentation of the issue on TV and in print, so there was no debate, despite the fact that the public interest certainly called for defeat of copyright extension. But it wasn't even close. It kind of makes you sick to think about it.
Posted by: wetzel on August 9, 2004 12:28 PMI've been wondering about this issue for a long time. How much of the recent trade agreements are about lowering tariffs and trade barriers and how much is about investment insurance and imposing unbalanced IP regimes that are favorable to a few powerful interests? Has anyone looked at this issue? Any analyses of the balance of these two elements?
Much of the IP issue is about balancing monopoly rights against the social welfare of many organizations utilizing new knowledge at a low cost. Since we live in a time when the very idea of social welfare is viewed with suspicion, it is difficult to have discussion about the right balance for IP protection where everyone starts on the same page. At least Hamilton and Jefferson could start on the same page when they debated the merits of patents and temporary monopolies. We seem to have regressed or become confused since then. Seems like the dominant players in this game say "Markets good, markets need property rights, so property rights good. More property rights the better! Here is my definition of property rights and if you don't like them you are anti-market and anti-free trade." But the market is good because it maximizes some kind of social welfare function. And property rights that create very long lasting monopolies may interfere with that. But these kinds of issues don't seem to faced squarely in the current debates.
At the time, it was said Disney needed protection for Mickey Mouse, which was to become public domain. In actual fact, Disney has a greater stake in Winnie the Pooh, the rights to which they bought decades ago & which are now being contested.
Posted by: Dave of Maryland on August 9, 2004 01:05 PMI am an inventor. I will invent whether there is a patent law or not, for the same reason that birds sing and poets rhyme, because it is in my nature to invent.
I have hundreds, thousands of inventions. And if I ever invent something that is workable, patentable, profitable, beneficial to humanity, and that doesn't require too much front money to develop, I'll tell you about it by filing for a patent, selling the concept to an investor, and working my butt off for several years making all the subsidiary inventions that make my primary invention work.
Unless you abolish patents again, like before 1982. Then I will continue to invent 'for the drawer', as the Russian writers used to say during the days of censorship.
Selling an invention is much harder than making one. I don't like sales. It's work. I want to get paid for work.
Life of author plus 70 years does not reward the author for creating or inventing, it rewards the author for producing offspring. Actually, it rewards the offspring for being spawned.
Posted by: ogmb on August 9, 2004 02:03 PMSimple thing you can do to day to help end the corrosion of the commons on copyright.
Stop using the phrase "Intellectual Property". Perhaps other nations recognize such a thing, but the constitution does not. Now, as with many other times, we are ignoring our constitution because it is economically inconvenient for very powerful interests to obey it, but that isn't the problem of the document, and it is Orwellian to infect the language.
What should one call it "intellectual capital". As in, you only have a just expectation of profit from the improvments made.
Posted by: Stirling Newberry on August 9, 2004 03:35 PMSimple thing you can do to day to help end the corrosion of the commons on copyright.
Stop using the phrase "Intellectual Property". Perhaps other nations recognize such a thing, but the constitution does not. Now, as with many other times, we are ignoring our constitution because it is economically inconvenient for very powerful interests to obey it, but that isn't the problem of the document, and it is Orwellian to infect the language.
What should one call it "intellectual capital". As in, you only have a just expectation of profit from the improvments made.
Posted by: Stirling Newberry on August 9, 2004 03:36 PMI've been holding out, with a great deal of success I might add, for "life+90 years". Proof? I have not patented or copyrighted anything. And I don't intend to until I get my way.
The clock is ticking.
Posted by: bobbyp on August 10, 2004 01:19 AMThe big thieves hang the little ones.
-- Czech Proverb
“Liberty is a food easy to eat, but hard to digest; it takes very strong stomachs to stand it.”
It may have been written in 1772, but Jean-Jacques Rousseau’s famous aphorism captures America’s ambivalent attitude toward freedom in 2004
Two Thumbs Up to thoughtful links by APO On
THE US–AUSTRALIA FREE TRADE AGREEMENT
Analysis and opinion
http://www.apo.org.au/webboard/items/2004/08/00800.shtml
FTA