an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
The conventional justification for IP is that information is a public good (i.e., it is non-rival and non-excludable), and making information excludable through IP allows it to be efficiently supplied by private markets. Both sides of this account have been questioned: not all information has the characteristics of a public good or can be made excludable through IP, and propertization is not the only way the state compensates public-goods providers. As Daniel Hemel and I analyzed in Beyond the Patents–Prizes Debate, the state also encourages information production through mechanisms such as tax incentives and direct spending. One challenge for domestic innovation policy is recognizing that, like conventional public finance mechanisms, IP facilitates a transfer from consumers to innovators, and that the off-budget nature of this IP “shadow” tax should not affect the innovation policy choice.
In our paper "Intellectual Property as Global Public Finance," Daniel and I examine information production at the global level, where conventional public finance mechanisms are lacking. Many information goods are global public (or quasi-public) goods, so under the conventional account, global coordination is needed to prevent countries from free-riding on each others' information production. Global IP treaties such as the TRIPS Agreement help solve this global coordination problem by requiring countries to contribute to the extent that they use the information produced under IP laws, with defection punished by trade sanctions. In the global context, the off-budget nature of IP laws may be an asset, as it facilitates creation of this stable Nash equilibrium in a way that maps onto very different national public finance regimes.
If this were the full story, one would expect to find little state investment in non-IP innovation mechanisms for which free-riding cannot be prevented. And yet governments at all levels do invest significant resources beyond IP in producing information goods. Daniel and I offer a number of hypotheses to explain these investments. For example, producing information goods has local production externalities, so nation-states may compete to attract innovative individuals and firms. Relatedly, rent-seeking may cause countries to use information subsidies to circumvent free-trade limits on industrial subsidies, and may cause industry interest groups to lobby for grants and tax credits to extract subsidies from the state. Non-pecuniary motivations such as altruism and the pursuit of prestige may supplement these incentives for high-profile goods.
Notably, many of the motivations we describe are supported by the existence of international IP agreements. To the extent that public investment in information production can be translated into patentable inventions and copyrightable works, TRIPS allows countries that produce information goods to appropriate a larger share of the benefits from their products. IP laws thus encourage the provision of grants, prizes, and tax incentives for information production at the domestic level.
Finally, we think the standard account misses the point that global production of an information good depends on how the benefits of that good are distributed across countries, which can occur in three distinct ways:
Aggregate global benefits exceed the cost of producing the information, but domestic benefits are smaller than that cost in every country individually.
Domestic benefits exceed the cost of the information in one—and only one—country, perhaps because demand for the information is geographically localized.
Domestic benefits exceed the cost of the information in multiple countries.
The conventional free-riding narrative is based on the first category, for which the incentives seem to resemble a global prisoners’ dilemma: the world is better off if each country contributes, but each country has an incentive to defect. As noted above, TRIPS offers a partial solution to this collective action problem.
Finally, the third category presents an anti-coordination problem (more akin to “chicken” than a prisoners’ dilemma): too many countries have incentives to invest, so each has some incentive to wait and hope the others will produce the information first. This coordination challenge is markedly different from the challenge traditionally considered by public goods theorists, and it may become more significant as larger numbers of countries increase their capacity for information production. For a chicken-type challenge, one imaginable solution is for all countries but one to sign a treaty committing not to produce the good; the one remaining country would thus have an incentive to produce the good independently (as in the second category). More broadly, we think that chicken-type coordination for information goods deserves future attention.
We do not mean to suggest that the current system of using IP as a form of global public finance for producing information goods results in socially optimal investments. Rather, we think that any realistic system of incentivizing information production involves distortions. Identifying the factors that motivate global investments in information-production despite the appeal of free-riding may enable more robust predictions as to which sorts of information goods are likely to be under-produced both with an IP based system and without.
Lisa Ouellette is Assistant Professor at Stanford Law School. She and Daniel welcome feedback on this project, which remains an early work in progress. She can be reached at ouellette at law.stanford.edu.