For the purposes of technological innovation, information becomes more valuable when augmented by new information: innovation is a collective process. If firms in an industry share information by tacit cooperation or open collaboration, this speeds innovation and reduces costs. Patents, which put information into the market and raise information costs, actually slow the innovative process.[13]
It should be noted that although the scale and pace of intellectual work has increased over the past few centuries, the duration of protection of intellectual property has not been reduced, as might be expected, but greatly increased. The US government did not recognise foreign copyrights for much of the 1800s. Where once copyrights were only for a period of a few decades, they now may be for the life of the author plus 70 years. In many countries, chemicals and pharmaceuticals were not patentable until recently. This suggests that even if intellectual property can be justified on the basis of fostering new ideas, this is not the driving force behind the present system of copyrights and patents. After all, few writers feel a greater incentive to write and publish just because their works are copyrighted for 70 years after they die, rather than just until they die.
Of various types of intellectual property, copyright is especially open for exploitation. Unlike patents, copyright is granted without an application and lasts far longer. Originally designed to encourage literary and artistic work, it now applies to every memo and doodle and is more relevant to business than art. There is no need to encourage production of business correspondence, so why is copyright applied to it?[14]
Intellectual property is built around a fundamental tension: ideas are public but creators want private returns. To overcome this tension, a distinction developed between ideas and their expression. Ideas could not be copyrighted but their expression could. This peculiar distinction was tied to the romantic notion of the autonomous creator who somehow contributes to the common pool of ideas without drawing from it. This package of concepts apparently justified authors in claiming residual rights — namely copyright — in their ideas after leaving their hands, while not giving manual workers any rationale for claiming residual rights in their creations.[15] In practice, though, the idea-expression distinction is dubious and few of the major owners of intellectual property have the faintest resemblance to romantic creators.
The marketplace of ideas
The idea of intellectual property has a number of connections with the concept of the marketplace of ideas, a metaphor that is widely used in discussions of free speech. To delve a bit more deeply into the claim that intellectual property promotes development of new ideas, it is therefore helpful to scrutinise the concept of the marketplace of ideas.
The image conveyed by the marketplace of ideas is that ideas compete for acceptance in a market. As long as the competition is fair — which means that all ideas and contributors are permitted access to the marketplace — then good ideas will win out over bad ones. Why? Because people will recognise the truth and value of good ideas. On the other hand, if the market is constrained, for example by some groups being excluded, then certain ideas cannot be tested and examined and successful ideas may not be the best ideas.
Logically, there is no reason why a marketplace of ideas has to be a marketplace of owned ideas: intellectual property cannot be strictly justified by the marketplace of ideas. But because the marketplace metaphor is an economic one, there is a strong tendency to link intellectual property with the marketplace of ideas. As discussed later, there is a link between these two concepts, but not in the way their defenders usually imagine.
There are plenty of practical examples of the failure of the marketplace of ideas. Groups that are stigmatised or that lack power seldom have their viewpoints presented. This includes ethnic minorities, prisoners, the unemployed, manual workers and radical critics of the status quo, among many others. Even when such groups organise themselves to promote their ideas, their views are often ignored while the media focus on their protests, as in the case of peace movement rallies and marches.
Demonstrably, good ideas do not always win out in the marketplace of ideas. To take one example, the point of view of workers is frequently just as worthy as that of employers. Yet there is an enormous imbalance in the presentation of their respective viewpoints in the media. One result is that quite a few ideas that happen to serve the interests of employers at the expense of workers — such as that the reason people don’t have jobs is because they aren’t trying hard enough to find them — are widely accepted although they are rejected by virtually all informed analysts.
There is a simple and fundamental reason for the failure of the marketplace of ideas: inequality, especially economic inequality.[16] Perhaps in a group of people sitting in a room discussing an issue, there is some prospect of a measured assessment of different ideas. But if these same people are isolated in front of their television sets, and one of them owns the television station, it is obvious that there is little basis for testing of ideas. The reality is that powerful and rich groups can promote their ideas with little chance of rebuttal from those with different perspectives. As described in chapter 2, the mass media are powerful enterprises that promote their own interests as well as those of governments and corporations.
In circumstances where participants are approximate equals, such as intellectual discussion among peers in an academic discipline, then the metaphor of competition of ideas has some value. But ownership of media or ideas is hardly a prerequisite for such discussion. It is the equality of power that is essential. To take one of many possible examples, when employees in corporations lack the freedom to speak openly without penalty they cannot be equal participants in discussions (see chapter 5).
Some ideas are good — in the sense of being valuable to society — but are unwelcome. Some are unwelcome to powerful groups, such as that governments and corporations commit horrific crimes or that there is a massive trade in technologies of torture and repression that needs to be stopped. Others are challenging to much of the population, such as that imprisonment does not reduce the crime rate or that financial rewards for good work on the job or grades for good schoolwork are counterproductive.[17] (Needless to say, individuals might disagree with the examples used here. The case does not rest on the examples themselves, but on the existence of some socially valuable ideas that are unwelcome and marginalised.) The marketplace of ideas simply does not work to treat such unwelcome ideas with the seriousness they deserve. The mass media try to gain audiences by pleasing them, not by confronting them with challenging ideas.[18]
The marketplace of ideas is often used to justify free speech. The argument is that free speech is necessary in order for the marketplace of ideas to operate: if some types of speech are curtailed, certain ideas will not be available on the marketplace and thus the best ideas will not succeed. This sounds plausible. But it is possible to reject the marketplace of ideas while still defending free speech on the grounds that it is essential to human liberty.
13
Thomas Mandeville,
14
David Vaver, “Rejuvenating copyright,”
15
James Boyle,
16
C. Edwin Baker,
17
On these points, see respectively Jeffrey Ian Ross (ed.),
18
Robert M. Entman,