The Burden of Challenging the Importance of IP Rights

About a month ago, the Mercatus Center released a paper questioning what the authors claim are a number of “misleading reports” that show that U.S. output and employment depend on expansive Intellectual Property (IP) rights. Mercatus authors Eli Dourado and Ian Robinson argue that IP proponents do not consider whether jobs created by stronger IP protections actually benefit society. They also claim that reports will often underestimate the “extent to which resources not spent on IP-protected products are spent elsewhere.” In other words, they suggest that jobs might be created in other industries without the protection of IP rights.

Mark Schultz and Adam Mossoff, scholars associated with George Mason University Law School’s Center for the Protection of Intellectual Property, replied to the Mercatus paper in a piece published with AEI’s Tech Policy Daily. They refer to James Madison who said in the Federalist Paper No. 43, regarding copyright, that “the public good fully coincides…with the claims of individuals.” They argue that proper institutions are the foundation of prosperity and development, emphasizing economic freedom, political liberty, and “a robust IP system that has secured property rights in innovative technology and creative works under the rule of law” as fundamental institutions that undergird economic growth.

While the Mercatus paper claims that many pro-IP rights reports do not provide empirical evidence about the relationship between output, employment, and protection of IP rights, Schultz and Mossoff claim that IP skeptics should bear a heavy burden of proof if they wish to disparage the value of IP rights. This is so, they suggest, because it is clear that the United States has prospered under its current IP system – and, importantly, because IP rights rest upon principles embodied in our Constitution.

For over a year, my colleague Seth Cooper and I have been engaged in the process of writing a series of papers elaborating foundational principles relevant to the protection of intellectual property rights. These papers discuss the views of John Locke, James Madison, Thomas Jefferson, Noah Webster and much more. Here are the first seven “Perspectives from FSF Scholars” in the IP series.

1.     Randolph J. May and Seth L. Cooper, "The Constitutional Foundations of Intellectual Property," Perspectives from FSF Scholars, Vol. 8, No. 13 (2013).

2.     Randolph J. May and Seth L. Cooper, "Reasserting the Property Rights Source of IP," Perspectives from FSF Scholars, Vol. 8, No. 17 (2013).

3.     Randolph J. May and Seth L. Cooper, "Literary Property: Copyright's Constitutional History and Its Meaning for Today," Perspectives from FSF Scholars, Vol. 8, No. 19 (2013).

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4.     Randolph J. May and Seth L. Cooper, “The Constitution's Approach to Copyright: Anti-Monopoly, Pro-Intellectual Property Rights” Perspective from FSF Scholars, Vol. 8, No. 20 (2013)

5.     Randolph J. May and Seth L. Cooper, "The ‘Reason and Nature' of Intellectual Property: Copyright and Patent in The Federalist Papers,” Perspectives from FSF Scholars, Vol. 9, No. 4 (2014).

6.     Randolph J. May and Seth L. Cooper, "Constitutional Foundations of Copyright and Patent in the First Congress," Perspectives from FSF Scholars, Vol. 9, No. 18 (2014). 

7.     Randolph J. May and Seth L. Cooper, “Life, Liberty, and the Protection of Intellectual Property: Understanding IP in Light of Jefferson Principles,” Perspectives from FSF Scholars, Vol. 9, No. 25 (2014).