An odd idea

[avevale_intelligencer]

Sparked by discussion of Martin Shkreli:

Assuming one could get it done, what would be the positive and negative effects of making intellectual property legally inalienable? By which I mean, impossible to sell outright (I suppose there would be no way of stopping people like me giving away their rights). All patents and copyrights would be vested in their originators and their heirs in perpetuity, anyone who wanted to sell derived products would have to lease the rights directly for fixed periods, and nobody could trade speculatively in such things as Shkreli has done. I'm sure there must be a downside, but I can't see one. (I am not interested in whether there would be a downside for large corporations. Just for human beings.)

Any thoughts?

Comments

[pbristow.livejournal.com]

Hmmm... It would certainly change the relationship between inventors/creators and their investors/employers. "You're not hiring me to invent things that you then own; We're contracting with each other for me to invent things that you have a limited time to help exploit for your own gain, in return for funding my work." That might make it harder to get jobs/investment in inventive/creative roles, but with the upside that this smaller pool of have bosses/investors would be more committed to developing and marketing what you've done with reasonable haste, and that they would have a vested interest in keeping you happy about how they're doing it, so that you don't walk away with the golden goose.

Hmmm...

You wouldn't even need to make it "all IP rights", though, to prevent the Shkreli case. There's already the distinction between copyright and patents.

I think rather than melding all IP into one, there's a growing case for patents to be subdivided further in to those where the thing being patented is something you *invented*, and those where the thing is something that was already there in nature, but you did all the work to *discover* or *reveal* it (e.g. a specific gene). But then the physicist/platonist in me wants to say that everything we invent/create is only possible because the potential for it already exists in nature, and all we ever do is discover what's possible (often by wondering in advance *whether* it's possible), and then start consciously doing it... So where do you draw the line(s), and why?

Non-trivial problems.

But whatever IP regime we imagine for the future I think the biggest problem would be "how do we get there from here?". As flawed as our current IP systems are, they have a huge thing going for them: Over time, whole clumps of nations have got together and hammered out a (mostly) shared understanding of how to handle these things. America is going slightly its own way compared to Europe, but that's because it's big enough that it can afford to rock the boat. (And China has always gone its own way on IP.) But both over there, and over here, any chances going forward are likely to be incremental rather than revolutionary. So the question becomes "given the overall kind of IP regime we think appropriate for the future (and bearing in mind that we will probably have to rethink that a little as new discoveries/inventions are made that start affecting the world in surprising new ways - as the printing press and the internet have done), what specific changes do we need to argue for in the short term that will start to get us closer? And what feedback do we need to be looking for in how those changes affect the world, to judge whether we're still taking the best route, or should take a detour around that nasty puddle of quicksand or the big hungry grue... Or that we still even have the best destination in mind?

[pbristow.livejournal.com]

The "in perpetuity" bit fills me with horror. Can you imagine the paperwork in tracking down the right and proper heir of that lady who invented the wheel 40,000 years ago? The potential for fraudulent claims and other lawyer-enriching shennanigins in trying to untangle the family tree...?

I think, realistically, *whoever* owns the rights, there has to be a cut off point beyond which it becomes unreasonable to expect our future benefactors to know or care which one of us first invented/discovered some particular ancient component of that amazing future technology that you and I haven't even glimpsed the beginnings of a context in which it might be possible to start to try to imagine yet.

[alun dudek (from livejournal.com)]

The Shkreli case neatly shows why the "in perpetuity" idea is , in my opinion, a very bad idea. Alright, it is an extreme example, but unfortunately humans tend to push things to extremes ("to see what happens" as often as not).

There is certainly an argument for the idea of copyright and patent rights being "inalienable" as you suggest, and that would preclude a Shkreli-type of situation, but there again, maybe Mr Shkreli is currently studying for a degree in bio-chemistry with Open University even as we speak, so maybe not.

As some of the more thoughtful writers have pointed out, Mr Shkreli does raise a valid point - even if the point is not particularly relevant in this particular drug's case. Getting some products from bright idea to the shop shelves is expensive, and in some industries - like pharmaceuticals, a lot of money is spent on products that, in the end, can't go on the shelves. (I saw one quote that 95% of drugs get to trials before they are recognised as unusable.) Which is used to justify the high prices charged even when Mr Shkreli isn't around. (It also explains why there are so many cases of drugs that shouldn't have got onto the shelves getting there thanks to selective use of test results, but that is another kettle of fish.)

The problem - at root - is that profit is both necessary and - in a very real sense - legally required for such activities as creating new pharmaceutical drugs. Which is the real reason it would be so hard to get there from here.

Note, that whilst I am certainly against the "in perpetuity", I do think there are arguments for changing the length of time rights last - and/or possibly changing the start date when those rights start from - for things like drugs. After all, those times scales were originally based on life expectancies a century or more ago.

EDIT. Dammit, this was meant to be a reply to the original blog, not to pbristow's specific reply. My bad. If anyome knows how to correct this (other than rewriting the whole thing), please let me know. AD

[zanda-myrande.livejournal.com]

If you discover in mid-comment that it's in the wrong place, my experience has been that if you just click on the right "Reply" button, the whole thing shifts to where it should be. After it's posted, I think you're stuck.

My suggestion would not, as you say, be the whole solution to the Shkreli problem. There would have to be some regulation to prevent unreasonable profiteering by originators as well. Some profit is necessary. Any Amount Of Profit You Want is ridiculous, especially in cases where lives hang in the balance and people have no choice but to pay or die. Ideally I'd disengage everything healthcare-related from the market economy and the profit motive altogether, but I'm sure that would not be a popular solution. And of course I'm aware of the development cost of drugs and the need for profit-driven corporations to recover that investment. Whether there's a better way of handling that problem is another question.

As for "in perpetuity," I don't see any way round it if the goal is to prevent intellectual property being traded as it has been here. As soon as the title to something people actually need gets on to the open market you have the potential for people like Shkreli to hold human life to ransom. If you can think of a better and fairer way to keep that from happening, then tell all.

Realistically, of course, the thing is not doable at all, so that's no argument against it. :) But I would certainly not advocate trying to make it retroactive. (Though if it had been thought of earlier, think of all the Siegel-and-Shuster-style horror stories that might have been prevented.)

As for a set cut-off point, I don't see a need. At some point, either the family of the inventor will die out or the invention will become obsolete, either of which is your natural cut-off point right there. I'd prefer it if, at that point, there were some non-profit body to which all such IP could automatically revert, so that at least it was being looked after. Either way, though, the original vesting of title in the originators would have to be open-ended, because those natural cut-off points would not be predictable. Hence "in perpetuity."

Of course there would be problems. There are always problems. The question is, would those problems be worse than the problems we are looking at right now? I don't think so.

[alun dudek (from livejournal.com)]

Families can, and regularly do "die out" if one only counts the male line. But if, as we now are starting to do, you also count the female line, families (though not their surnames) tend to persist if the person you are starting with has children. Though I must admit that that may change due to the change in numbers of children people have nowadays as opposed to a couple of centuries ago - says the oldest of two children, whose father was youngest of five, and whose paternal grandfather was the youngest of twelve, and was himself the son of a man who also was the youngest of twelve.

The time limit does actually partially shield us from long-term Shkreli problem. With drugs, when the patent runs out, anyone can start producing the drug. The patent owners have the advantage of already producing the stuff, but if there is a big demand for it, others will move in and - hopefully - undercut the price the ex-patent holders are charging. Of course, the ex-patent holder can reduce the price to the point where it's not worth the while of competitors ... but that is also a solution. Which is great if you are talking about a better aspirin, not so good in the short term with drugs that save lives from otherwise fatal diseases.

And would you want access to your favourite 19th century author or composer dependent on the whims of some random great-great-great-grandson (or daughter) who may see the holding of those rights as their main source of income? The descendants of famous artists are often not nice people (come to that, many artists, when you get down to it, are not nice people either). My understanding is that te original reason why rights were extended to a set period of time, as opposed to for the lifetime of the creator, was to allow the creator to provide for their children, particularly if they died relatively young - which a lot of creatives we hear about did.

As you say, getting the profit motive out of the medical profession (using the term in its widest sense) would be best. Basing it on the idealistic point that you are making lives for people longer and healthier is the obvious approach, and indeed is why many people enter the that field. But whilst humans are capable of truly amazing feats of idealism (and if we displayed better taste in which ideals we did these feats for, we would be a far better and nicer species) for some reason positions controlling the application of science seem to end up in the hands of people who - by the time they get into those positions, if not originally - seriously lack much in the way of idealism. Maybe that's the nut we have to crack.