Against Intellectual Monopoly

Thirty years ago the ordinary lawyer did not need to know about copyright save perhaps in the trite phrase “Copyright protects the form in which an idea is presented but not the idea itself”. Copyright issues were left to a specialist IP Bar of which I was then a member. Today copyright issues arise in the day to day work of a commercial solicitor. But while there are balanced practitioners textbook for every other field the main practitioners textbooks (Copinger & Skone James on Copyright   ISBN: 9781847031280 and The Modern law of Copyright and Designs ISBN: 9781405717984) both fail to genuinely set out the law and the intellectual arguments in a comprehensive and sensible form.  Written by practitioners in specialist IP chambers they are a history of the world written by the victors.
Partly this is a consequence of the English legal systems’ requirement that the loser pays the other side’s costs—so English judges never have the benefit of any amicus curiae briefs to assist the court in deciding a matter before it. But mainly it is because of professional blindness—a coterie of practitioners and judges who work so closely together that they fail to see how their developing jurisprudence is harming society and the public at large.

In recent years we have suffered radical extensions of the scope and enforceability of copyrights to the detriment of citizens, libraries, innovators and anyone except copyright “rentiers”. It can no longer be said that “copyright protects the form in which an idea is presented but not the idea itself” because private rights have confiscated content from the public weal and new and expanded rights have been bolted retrospectively onto existing works. UK Litigation, with front end loading, is now so expensive and the copyright law has been made so extensive that innovators are constantly at risk. The lack of compulsory licensing in copyright, the burden of copyright clearance (which undermines new development) means that copyright lawyers just say “no” to almost all creative endeavors.  But outside, a major debate has been taking place which is tacking some of the fundamental shibboleths of the UK IP Bar

Against Intellectual Monopoly: Michele Boldrin and David K. Levine 

A fascinating book by two well respected economic theorists which make a compelling case for abolishing most copyright and patent rights.  Though a thorough presentation of historic and contemporary examples the authors show that economic growth and socially beneficial activities only take place at optimum speed when there is minimal intellectual property protection. Furthermore the authors present evidence to suggest that the most innovative and creative individuals are still adequately rewarded in a world of minimal protection. Through lots of illustrations they make a compelling case for killing copyright and patents stone dead. God help the IP Bar if the Chinese read it and adopt it as their policy in future WIPO and WTO negotiations.

Alistair Kelman, barrister & forsensic scientist. Longer reviews are available at www.alikelman.com

Against Intellectual Monopoly
Michele Boldrin and David K. Levine 
Cambridge University Press 2008 £17.99
ISBN: 978-0521879286

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