مخترعین و سارقان: فعالیت های خلاقانه و حقوق مالکیت معنوی

This paper focuses on the choices that link the security of intellectual property rights to the environment for pirating ideas, which includes the legal system, and to the interpersonal distribution of talent. These choices include the decisions made by potentially creative people either to engage in creative activity or to be pirates of the ideas created by others and the decisions made by people who are engaged in creative activity to allocate time and effort to guarding the ideas that they create from pirating. Among other results, the analysis shows that, holding fixed the average level of talent, the existence of geniuses, who are much more talented than ordinary potentially creative people, can cause a larger fraction of potentially creative people to choose to be pirates, thereby making intellectual property rights less secure, but also can result in a larger value of ideas being created. The analysis also shows that intellectual property rights probably are too secure, in that the amount of time and effort allocated to guarding ideas from pirating probably is larger than the amount that would maximize the value of ideas created.

The law is only one of the arms the individual uses in his essentially lawless struggle. (Tim Parks, 1992, p. 77) It is a commonplace idea that the incentive to engage in creative activity depends on the security of intellectual property rights. In analyzing this dependence, the literature typically takes the security of intellectual property rights to be a direct consequence of the legal system, and, consequently, to be exogenous with respect to creative activity.1 This exogeneity assumption, however, neglects an essential part of the story, in that it abstracts from the choices that link the legal system to the security of intellectual property rights. The present paper focuses on these choices. The paper analyzes a model in which within a given environment for pirating ideas, which includes the legal system, both creative activity and the security of intellectual property rights depend on the decisions made by potentially creative people either to engage in creative activity or to be pirates of the ideas created by others and on the decisions made by people who are engaged in creative activity to allocate time and effort to guarding the ideas that they create from pirating.2 In this model, in contrast to the standard analysis, creative activity and the security of intellectual property rights are jointly determined, and the security of intellectual property rights is endogenous. The model defines pirating to include any appropriation of the saleable value of ideas created by others, whether such appropriation involves economic espionage and surreptitious commercialization, the violation of patents and copyrights, as in the case of pirated editions of books, or merely the creation of unauthorized imitations of ideas, as in the case of “knock-offs” of original designs. The exogenous variables in the model are the environment for pirating ideas and the interpersonal distribution of talent. The environment for pirating ideas depends both on the technology of pirating and on features of the legal system, such as patent law, copyright law, laws against economic espionage, and their administration, that either impede or facilitate pirating. The interpersonal distribution of talent allows for the existence of geniuses, who are much more talented than ordinary potentially creative people. For simplicity, the model abstracts from differences among scientists, authors, composers, and artists, using the generic term “inventors” to denote people who engage in creative activity. The model assumes that each potentially creative person's choice to be either an inventor or a pirate depends on whether being an inventor or a pirate would yield more wealth for him (or her). The guarding of ideas from pirating includes any costly activity that decreases the ability of pirates to appropriate the saleable value of the ideas that inventors create, but also decreases the saleable value of these ideas, net of the costs of guarding. Ways of guarding ideas include everything from physically securing the premises at which either creative activity takes place or ideas are implemented, to filing patents, to hiring lawyers to enforce patents and copyrights, to directing creative activity to ideas that are intrinsically less readily pirated, even if these ideas are less valuable than alternative ideas, to developing and implementing strategies, like encryption, that make ideas harder to pirate, to the promotion of customer loyalty through product differentiation and other strategies.3 Each of these ways of guarding ideas requires either the direct use of an inventor's time and effort or the spending of part of an inventor's gross income on hiring other people, such as lawyers, to act as guards. For simplicity, the model abstracts from different ways of guarding ideas, assuming only that inventors allocate a fraction of their time and effort either directly or indirectly to guarding their ideas. The model assumes that inventors choose this fraction to maximize their wealth. The paper begins by analyzing a simple version of the model in which each potentially creative person is equally talented. The implications of this analysis are unsurprising, but in showing how, through the choices made by potentially creative people, the value of ideas created and the security of intellectual property rights depend on the environment for pirating ideas, this analysis sets the stage for an analysis of the effects of the interpersonal distribution of talent. The paper then extends the model by assuming that some potentially creative people are geniuses. Analyzing this extended model, we find that if geniuses are sufficiently talented relative to ordinary creative people, and if the fraction of potentially creative people who are geniuses is small, but not too small, then the existence of geniuses causes a larger fraction of potentially creative people to choose to be pirates, and, consequently, causes intellectual property rights to be less secure. However, we also find that holding fixed the average level of talent, if the fraction of potentially creative people who are geniuses is not too small, then the existence of geniuses can result in a larger value of ideas being created. The analysis of the choices made by the geniuses and by the ordinary potentially creative people enables us to ask whether the amount of time and effort that inventors allocate to guarding their ideas is optimal in the sense of maximizing the value of ideas created. In answering this question, we find that, because the wealth of an inventor depends not only on the saleable value of the ideas that he creates but also on the fraction of that saleable value that he retains, the allocation of time and effort by inventors results both in intellectual property rights being too secure and in the value of ideas created being too small. This result is an instance of the general proposition that the private benefits from allocating resources to securing property rights exceed the social benefits.4