Keep the Innovation And What Really Creates It In Mind On World Intellectual Property Day

In 2000, the World Intellectual Property Organization designated today, April 26, as World Intellectual Property Day, as it is the date on which the 1970 WIPO Convention entering into force.  This date serves as an occasion to raise awareness about and celebrate intellectual property.

Choosing the date of the establishment of an inter-governmental bureaucracy as the anniversary to celebrate reflects peculiar priorities. (April 26 also has the dubious distinction of being the anniversary of the Chernobyl catastrophe, so the date has its baggage in any event.)  Celebrating WIPO rather than authorship or invention elevates the regulatory apparatus constructed to incentivize creativity, rather than lionizing the actual creative act itself.  It reflects a top-down perspective, whereas creativity generally occurs from the bottom-up.  Governments don’t produce innovation; people do.

Nor is celebrating the notion of intellectual property the same as celebrating creativity, authorship, or innovation.  Not all creative activity is motivated by exclusive rights, and not all rightsholders are necessarily interested in promoting innovation.  Indeed, a recent article by Harvard scholar James Allworth in the Harvard Business Review, provocatively titled, “Big Content Is Strangling American Innovation” criticizes a variety of recent IP enforcement strategies sought by rightholders on the grounds that they will undermine American innovation.  Controversial strategies such asdomain name seizure, are ineffective, counterproductive, and bad for new businesses, Allworth suggests, since the next YouTube may incorporate overseas so as not to risk “having the government simply switch off your site at the behest of Big Content.”

Allworth also points out that giving up on aggressive but ineffective enforcement might in fact aid rightsholder constituencies by compelling them to address the market failure of infringement, rather than petitioning law enforcement to do it for them.  Here Allworth echoes an insightful 2009 Ars Technica article and a brief filed earlier this month by the Consumer Electronics Association in the Viacom v. YouTube case, both of which recount how content industries have decried tech innovation as piracy for over a century, only to adapt and profit after policymakers ignored their special pleading.

Sometimes the right solution to a technological advance is more protection for IP, but often restricting technology to suit outmoded business models does more harm than good.  This fact is easily forgotten when we celebrate intellectual property – a means to an end – instead of the end itself – progress.

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