Richard Posner: many creative industries don’t need patent or copyright

We couldn’t have said it better ourselves.

Richard Posner, one of the leading intellectuals on the federal bench, has been speaking out a lot lately on the patent and copyright laws — suggesting that they’ve both (especially patent) gotten out of control and need to be reined in. And now Posner has launched his latest salvo on the blog he co-authors with Nobel prize-winning economist Gary Becker. In a lengthy but very readable post, Posner argues that we have much more of both patent and copyright than we need.  The same patent rights that make good sense for the pharmaceutical industry, Posner writes, are useless and even mischievous when applied to other industries, such as software. And many of the arguments that Posner employs echo what we say in The Knockoff Economy:

Pharmaceutical drugs are the poster child for patent protection. Few other products have the characteristics that make patent protection indispensable to the pharmaceutical industry. Most inventions are inexpensive, and even without patent protection, or any other legal protection from competition, the first firm to invent a product usually has significant protection from competition in the near term. The first firm gets a headstart on moving down his cost curve as experience demonstrates ways of cutting costs and improving the product. And the public is likely to identify his brand with the product, and keep buying it even after there is competition, and at a premium price. Moreover, many new products have only a short expected life, so that having 20 years of patent protection would confer no real benefit—except to enable the producer to extract license fees from firms wanting to make a different product that incorporates his invention.

Nor does copyright escape Posner’s ire:

The most serious problem with copyright law is the length of copyright protection, which for most works is now from the creation of the work to 70 years after the author’s death. Apart from the fact that the present value of income received so far in the future is negligible, obtaining copyright licenses on very old works is difficult because not only is the author in all likelihood dead, but his heirs or other owners of the copyright may be difficult or even impossible to identify or find. The copyright term should be shorter.

There’s a lot here, and we urge you to read all of it.  But even if we differ with Posner on a few specifics, we find ourselves agreeing with his conclusion: that for a lot of creative industries, copyright and patent aren’t necessary to provoke innovation, and that sometimes the law does best by staying out.