Thursday, October 27, 2005

Anthropology of intellectual property law: In a nutshell

My theory:

Intellectual property comes in large part from the instinctive human concern for status and the scarcity of preeminence: Creativity and innovation, like money, aren't things we pull out of our pockets just to get food and shelter (or to get them more efficiently so as to have more leisure time). They're also largely for gaining admiration, power and influence--not to mention a mate. Note that it's easy to imagine societies without personal property but not societies without creativity based prestige--and likewise not a society without symbol-based designations of status, such as the headdresses, soldier stripes, priestly rituals and sumptuary laws. The king owns a sort of design patent or trademark on the crown and scepter and ermine that he wears.

An anthropological perspective on IP suggests why we need IP monopolies in modern society to incentivize innovation even though we didn't seem to need them before: In modern society, cultural and political affiliation encompass millions of people, and yet personal affiliations are remote and dispersed (family, friends and colleagues are not your neighbors). That suggests to me that in the absence of monopoly your innovation won't spread in a way that brings glory to you. It will spread fast, start bouncing off the national borders and soon seem to be coming from all directions-- originating from nobody, least of all you. Also the admiration of distributed fans is more abstract and less satisfying than being the village hero. And so nowadays we want and need our innovations to make us money, which we spend locally on the big home and fancy car that tells the people around us (wherever we drive) that we're special.

This perspective also arguably meshes with the natural poles of "wealth and fame" and Freud's "love and work." It explains why employers don't have to pay people so much money to be teachers and journalists--because such jobs pay a lot in prestige and influence. Scholarship is an almost entirely prestige-based economy that produces primarily IP[1]. Politics seems to be at least a little like this too.

Finally (for now) as I've blogged vaguely about before, I think this means that for "free culture" to work, creators will need to remain associated with their creations in the minds of consumers and somehow earn admiration at a higher margin than they often do in our money-based IP culture. The Web provides free world-wide distribution of creations, but not intimacy between the creator and the audience, and it doesn't actively generate community. It allows exchange with your peers, but it doesn't easily let you feel the admiration of your admirers or show your admirers how admired you are. Britney doesn't see or hear you shout when she shakes it all about. She doesn't even know you're listening. And neither do the other listeners. But once the Web is really up to speed she will and they will. Then, I predict, the monetary cost of a lot more intellectual property will drop to zero.

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P.S. Murky Thoughts is very proud (albeit not expressly licensed) to relate, "Judge Posner read your post and he says it sounds very sensible to him."

P.P.S.
I think of "God" and religion as a kind of patent office, and I think part of why organized religion has been so popular is that it gets people producing in all kinds of ways for nothing. I think it's no coincidence IP law has developed as religiosity has waned.

6 comments:

Jackson Lenford said...

"Note that it's easy to imagine societies without personal property but not societies without creativity based prestige--and likewise not a society without symbol-based designations of status, such as the headdresses, soldier stripes, priestly rituals and sumptuary laws."

Actually, I find it quite easy to imagine societies devoid of class distinctions based on symbols worn as apparel. As a matter of fact, such an ideal is one of the recurring tenents of utopian societies, and has been attempted many times even in recent history, not only by socialists and communists, but by religious groups such as 19th century Mormonism as well.

But your point that prestige, itself, is a necessary commodity for the creation of new ideas and inventions certainly has a lot of merit. I just wouldn't be so quick to confuse "invention" and "intellectual property." The former is present throughout history (going back even to homo-erectus), regardless of whether we have an intellectual property regime or not, and seems more to be born of neccesity and convenience than of prestige. The latter, IP, is more accurately called "Intellectual Monopoly", and cannot exist without the force exerted by a state to bring it into being.

Maybe that looks like nitpicking, but I think it's an important distinction and I think, based on your other writings, that we might agree on this point: it seems very likely that civilization will continue advancing its technology at the same pace even as we reduce the power of the Intellectual Property Regime. In fact, it seems more likely that removing the barriers imposed by our current IP system will result in an even greater flourishing.

Murky Thoughts said...

Thanks for the thoughts. I'm happy to concede a natural right to invent, but right beside it I see a right to copy, so it's not obvious to me as a place to start a plea for intellectual property rights, whether moral or monetary. I look forward to reading where you go with the idea on your blog though. I think it's no accident that your examples of status-symbol-free societies are utopian. That squares with my footnote comment about a belief in God being an internal patent office that lessens the need to distinguish yourself in the real world. Also, just because you require uniforms doesn't mean kids or communists won't find subtle ways to express themselves--haircuts, jewelry, posture, secret handshakes, etc.

Jackson Lenford said...

I'm happy to concede a natural right to invent, but right beside it I see a right to copy, so it's not obvious to me as a place to start a plea for intellectual property rights, whether moral or monetary.

Certainly, morals have a lot to do with this. Our own patent system, as allowed by the constitution, is moralistic in that it is justified only by promoting "the Progress of Science and useful Arts" -- a concept which is couched in the the common good for society and not in the individual self interest of the inventor or author... I'll have to give your point about the relation to "right to copy" some more thought. For now I'll just note that our copyright expiration system also embodies an eventual "right to copy," originating again from the constitutional concept of societal good ("securing for limited times").

t.s. said...

The Posner endorsement should help you sell a few more copies of the blog, but moreso if you plaster across the top of your main page . . . .

Murky Thoughts said...

I know, it's awfully tempting, but as regular readers know, Murky Thoughts eschews all unseemliness. I've no basis to claim Posner's read anything beyond this one post or that he thought too much about it before opining. Just making public that private communication in the quotation marks is pushing Murky Thoughts' lofty and iron-clad standards of decorum. i.e. Maybe. I'll think it over.

Murky Thoughts said...

Actually, this is really an ethical no-brainer. Richard Posner does not want to be associated with this blog. Even I don't want to be associated with most of what appears on this blog. Notice it's anonymous?