Rivalry, Copyright, and Patents

For those who think that free copying will lead to the underproduction of new information, please explain why we don’t seem to have a dearth of architectural styles, jokes, riddles, hairstyles, perfume scents, tattoo designs, fashion designs, flower arrangements, landscape designs, furniture designs, bumper stickers, web site layouts, children’s names, mottoes, neologisms, definitions, playlists, dance moves, and recipes.

Why doesn’t the person who originally created that value own it and so own the ability to control it? For the same reason that the standup comic you saw at the comedy club shouldn’t be allowed to charge you for another ticket you every time you remember one of his jokes. If you create information that is valuable, what you own is not the information, but rather an option to disclose it (or not) through your freedom of association. You’re free to try to profit from that option through some combination of contract, insurance, bonding, watermarking, accrued reputation, tipping, etc. But you’re not free to impose your own price on someone who has never contracted with you about it and who isn’t putting his own price tag on it.

What is completely non-rivalrous cannot be property. So while you can’t own information per se, you should be able to own the reputational and commercial advantage of being the original creator of information, because those advantages are rivalrous. Therefore copyright should at most protect you from people selling the information you created, or from claiming they created it.

How to apply this logic to patents? Through a patent value tax.

Communities may for a limited fixed term grant exclusive rights in their jurisdiction to profit from an invention, in exchange for an annual tax to the community that is a fraction of the inventor's declared value for it, with that fraction increasing linearly to unity by the end of the patent's term. Anyone may buy the patent by paying the current owner more than owner's declared value, as long as the buyer also pays the incremental patent value tax. Patent applicants must publish a precise description of the problem being solved. For that problem anyone may then publicly register prior art, any subsequent use of which is not considered infringing. If other inventors file patents for the same solution before that solution's first patent is issued, then none of them may enforce their patents until they all agree on how to share ownership.

The term of a patent should ideally be the time it would take for the invention to become obvious to other practitioners. It would be nice to have a market mechanism to set the term of an patent at the time of its filing or issue. The mechanism would need to punish inventors who overestimate the non-obviousness of their invention. I haven't been able to think up such a mechanism.