مالکیت معنوی و سازمان تولید اطلاعات

This paper analyzes an area that economic analysis of intellectual property has generally ignored, namely, the effects of intellectual property rights on the relative desirability of various strategies for organizing information production. I suggest that changes in intellectual property rules alter the payoffs to information production in systematic and predictable ways that differ as among different strategies. My conclusion is that an institutional environment highly protective of intellectual property rights will (a) have less beneficial impact, at an aggregate level, than one would predict without considering these effects, and (b) fosters commercialization, concentration, and homogenization of information production, and thus entails normative implications that may be more salient than its quantitative effects.

As information production has become more central to our economy, we have seen a Cambrian Explosion of exclusive private rights in information. The past half decade has seen the term of copyright extended, patents granted in business methods, property rights sought for compilations of raw data, trademark morph from a confusion-prevention law to a goodwill-retention law, and a vast increase in the legal effect of privately created and enforced exclusion—created by contract and enforced by technology. In this article I explain why strong intellectual property rights such as these are systematically less beneficial in terms of increasing aggregate information production than usually thought, and why they are likely to lead to commercialization, concentration, and homogenization of information production. Economic analysis of intellectual property falls, broadly speaking, into two main clusters: welfare economics1 and neo-Schumpeterian economics of innovation.2 The neo-Schumpeterian literature focuses on the relationship between market structure and investment in innovation.3 This literature typically treats the market structure in which an information producer operates as the primary determinant of information production activity, rather than focusing on the incentive effects of legal rights. This paper shares with this literature a concern for the relationship between information production and the organization of production, but looks not at the relationships between market structure at the macro level and innovation, but at the relationship between legal rules and the organization of production at the micro level. Welfare economics of intellectual property has three primary sub-clusters. The first sub-cluster, rooted in the work of Arrow4 and Nordhaus,5 focuses on the welfare tradeoffs between the incentives created by property rights and the social cost of enforcing rights—both the costs of administering the system and, more importantly, the cost of losing access to information—a non-rival public good—at its marginal cost of zero.6 This tradeoff is often seen as involving static losses (in consumption of existing information offered at an above-marginal cost price sufficient to compensate producers) and dynamic gains (through incentives to invest in production), but the effects on second generation producers who use information as an input into their own productive enterprise adds a dynamic loss as well.7 This paper is largely situated in this sub-cluster. The second sub-cluster follows Demsetz, focusing on the signaling effect of property rights—whereby consumers signal producers what innovations or information goods are most valuable.8 A variant of this argument focuses on private parties’ advantage in reaching efficient tradeoffs between incentives and access using property-based contracts.9 A central difference between the first and second sub-clusters is that the first treats limitations on rights—like fair use—as inherent elements in fine tuning rights to achieve optimal protection, while the second justifies such limits only insofar as necessary to overcome market failures—primarily those based on transaction costs.10 The third and final sub-cluster analyzes the ways in which intellectual property rights can cause or limit inefficient over-investment and uncoordinated production.11 This paper operates largely within the first sub-cluster of welfare economics treatments of intellectual property, but adds one aspect that has not been the focus of prior work. I take the basic parameters of this sub-cluster and apply them to the question of how intellectual property rules affect the business strategies used by information producers. In particular, I explain why strong property rights prefer certain kinds of information producers, like Disney and Time Warner, to other kinds of information producers, like Tim-Bernhers Lee who developed the WWW, Kenneth Arrow, or the Electronic Frontier Foundation. I also suggest why Disney-like producers are likely to over-invest in repackaging Mickey Mouse cartoons, or more generally why those who benefit most from strong intellectual property are likely to misapply talent to information inputs. Recognizing this effect also differs from the approach used in empirical literature that studies information production strategies, because that literature describes how firms actually use (or don’t) property rights, but does not attempt to define analytically the relationship between the structure of property rights and the strategic choices of firms. 12 My analysis relies on assumptions and observations commonly accepted in the welfare economics literature in this area, and which drive the analysis of the Arrow/Nordhaus sub-cluster. Information is a public good. Once produced, it is purely non-rival and partially non-excludable.13 Moreover, information is both input and output of its own production process.14 Consistent application of these observations suggests that intellectual property rights have systematic predictable effects on the payoffs from various strategies for organizing information production. The effects I identify are entirely derived from these basic observations, and are therefore independent of and cumulative with transaction costs effects on the incentives of information producers. Section 2 uses examples from software and genomics to introduce the basic intuition that, if information producers use diverse strategies to acquire information inputs and manage information outputs, then intellectual property has different effects on different strategies. Section 3 develops an ex ante analysis of how this diversity arises and how changes in intellectual property are likely to affect payoffs to various strategies. Section 4 abstracts from this model nine ideal-type strategies that organizations use to produce information, which accords with the empirical literature that describes information production. Section 5 suggests how changes in intellectual property rights affect the payoffs to these strategies in predictable ways. Increased protection makes some strategies more attractive and others less so. Specifically, increased protection benefits commercial information producers that vertically integrate new production with management of large-scale owned inventories of existing information, and that have incentives systematically to misapply human capital to information resources. This benefit comes at the expense of alternative strategies, both commercial and non-commercial. In Section 6, I note a series of feedback effects likely to result from the shifts in organizational strategies that the analysis in Section 5 predicts. These feedback effects will likely amplify, speed up, and lock in the effects of the changes in payoffs identified in Section 5. Section 7 explains the two primary policy implications of this analysis. First, intellectual property rights will systematically yield less of their desired effects than usually predicted by models that do not consider divergent effects on different strategies. Second, intellectual property policy has an irreducibly normative element. Strong intellectual property rights tend to lead towards commercialization and concentration of information production, and to a certain type of inefficient homogenization of the information produced. Whether these effects are desirable or not, and if undesirable, whether they are worth the quantitative increase in outputs that results from stronger protection, is a normative question that cannot be resolved within economic analysis.