From Knowledge Product to Intellectual Property (BW)
We have seen that economists are influenced by epistemological conceptions of knowledge, even though it goes against their disciplinary tendency to see all resources as scarce, or at least divisible. This tension comes to a head in attempts to define "intellectual property." Epistemologists portray knowledge as unbiased by nature, with no interest of its own, and hence potentially in the service of any interest. With the help of legal theorists, economists translate this lofty notion into the idea of a public good. The idea of knowledge as a public good filters through the legal system by the characteristic way in which the burden of proof is distributed over ownership claims to intellectual property. Here lawyers typically distinguish between copyrights and patents.
The quick and dirty way of distinguishing these two forms of legal protection is by noting that copyrights typically cover written works, while patents cover inventions. However, the epistemologically salient feature of this distinction lies in the sort of credit that legal theorists have deemed appropriate for producers of copyrightable vis-à-vis patentable materials. Copyrights are designed to assign credit for past achievements, whereas patents are designed to stimulate future ones.
Copyrights essentially offer backward-looking protection to a knowledge producer by acknowledging her as the independent originator of a particular product. But the protection offered is minimal, implying no judgment about the product's novelty. Anything short of plagiarism is copyrightable. Not surprisingly, copyright law arose from publishers' concerns with maintaining a monopoly over the products of their presses. However, by the late 18th century, authors began to separate their own copyright interests from those of publishers by arguing that an author's writing contains a unique "genius" that contributes to a book in a way that cannot be substituted by the labors of other authors as a generic factor of production. In contrast, applications for patents typically require substantial investigations into the novelty of the product in question. The applicant must demonstrate the uniqueness of her invention, while at the same time establishing its relevance to whatever subsequent research is done in the area served by the invention. As we shall now see, this is quite a subtle process that involves negotiating, by means of counterfactual historical reasoning, the degree of dispensability of the inventor to her invention.
Consider the case of invention. In order to stake a strong claim to ownership, an inventor will focus on the most intuitively apparent features of her invention, which also happen to be its most divisible ones, namely, the features that point to the invention's material uniqueness. At the same time, the inventor will downplay the invention's less tangible and indivisible features, namely, the combination of generally available procedures and principles that explain how and why it works. The claim to ownership would be weakest if a putative invention came to be regarded as nothing more than an occasion for universal physical principles to play themselves out. However, the law typically burdens any claim to ownership with a "fair use" requirement, which forces the inventor to say why her invention should not be made generally available at a nominal cost to other interested parties. At first, this may seem to be a case in which the law acts in the public interest at the expense of individual creativity. But on closer inspection, the law serves the creative individual as well, for if the inventor deserved all the profits that accrued from those who use her invention to their benefit, then, by parity of reasoning, she would also deserve to suffer all the liabilities incurred by those who use her invention to their detriment. What the law supposes here is a symmetry principle for the efficacy of personal agency. In other words, my power to do good can only be as great as my power to do harm. And so, in order to make bearable my responsibility for the consequences of introducing a new knowledge product into the world, the law must portray me as substitutable with some other people who could have just as easily introduced the same product.
From the foregoing considerations, we can see that even if economists are ambivalent about treating knowledge as something that is fully embodied in the world, this ambivalence is routinely resolved when issuing judgments and prescriptions about the sorts of social relations into which things can enter, which is the business of the law. A judge or legislator does not have the epistemologist's (or even the economist's) luxury of suspending the products and processes of knowledge in ontological limbo. However, from this it hardly follows that the issues raised by intellectual property law are less subtle than those raised by epistemology. For, as we have just seen, the more we take seriously the idea that knowledge products have determinate consequences in the world — as decisive contributors to or inhibitors of public welfare — the more we will need to regard the knowledge producer as having a less determinate identity, that is, as one of a number of people who could have caused the same effects. Thus, the more efficacious the telephone became in a variety of disparate settings, the more accidental it seemed (at least from a legal standpoint) that Alexander Graham Bell was its inventor. By ceding most of her claim to cognitive uniqueness, the individual producer becomes a morally tolerable member of her community. The crucial presupposition for this argument is that social life is facilitated by agents presuming that they are not in complete control of their fates (e.g. the telephone would have been invented around the time it actually was, even if Bell had not existed), and hence can only be held responsible for a limited range of consequences from their actions.
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