Intellectual property régimes are the worst means of encouraging progress in science and the useful arts… except for all the others.
Although I think Ernest Miller's objection to Jim DeLong's self-defeating rhetoric is well taken, I think they have both missed the point. The point is not "is IP good?" or "is a compulsory-licensing system good"; the point is "what is the least governmentally intrusive means of encouraging progress in science and the useful arts?" Or, flipped on its head, "which broad methodology for encouraging progress in science and the useful arts is least likely to be so thoroughly abused that it is counterproductive?"
The IP Clause posits that an individual exclusive right—an IP régime—is the best way to encourage (not guarantee!) "progress." No IP system can be perfect; no IP system can completely avoid abuses (Exhibit A: Disney, in all its glory, as I've remarked over and over in this blawg and in papers); no IP system can actually guarantee progress. That the system has abuses in it, though, does not mean that we should throw the system out in favor of a completely different régime; it means we should work to improve it. Consider, then, that there remain only three logical alternatives to an IP régime, remembering that starving artists don't create more art (they're too busy pushing up daisies):
- A system of private patronage, which essentially means that only those who already have money will be supporting the arts (and sciences, too; I think it logically impossible to change copyright to a non-IP régime while leaving patent law as IP, or vice versa). In turn, that's going to mean self-censorship and redefining "art" based on the whims and preferences of a small, well-defined group. To say the least, this means that satire is going to suffer a great deal, especially satire of the rich and powerful; and I think the world would be a far lesser place without Main Street, without The Grapes of Wrath, without Jeeves and Wooster.
- A system of government patronage, which has all of the drawbacks of private patronage with the bonus of eliminating the whims of the occasional iconoclastic private patron. To put it another way, the government gets to define what is "art," what is "science," and who is entitled to support as an "artist" or "scientist." Satire would be even more improbable, and we would need to add Candide, virtually all of Kafka, and—ironically enough, given the rhetoric being thrown about—The Gulag Archipelago (and, for that matter, One Day in the Life of Ivan Denisovich) to the heap of works never produced in this alternate reality, where Galileo Galilei and Charles Darwin could keep them company. Notice that I didn't even need to use loaded language like "socialist" here—which should be a hint to Mr DeLong.
- Reliance on leisure production, which depends both upon a greatly increased minimal standard of living affording true leisure (and true education, and experimental facilities, and) to a huge portion of the population, and assumes that such leisure won't be merely frittered away on activities that, however worthwhile in their own right, do not promote progress in the sciences and useful arts. The subtle implication of this régime is eliminating the underclass, or more properly eliminating the perception of the underclass. There go Invisible Man, The Prince and the Pauper, etc., etc., etc.
That the system "works" to at least some extent is very difficult to deny. The problem with wholesale attacks on the concept of IP, though, is that they founder on the problem of replacing it.
So, then, where does a compulsory license system fall? Isn't that just another variety of IP, with the means of compensation being established on a regulatory rather than a market basis? To some extent, at least, I think that's a fair characterization, as long as the compensation is adjusted on a regular and realistic basis. The problem with that "as long as," though, is that it's veering awfully close to the "government patronage" model again; it's somewhere on the border between that model and a pure, market-based IP régime. It might give one pause to look back at the debates over the expiration of the Licensing Acts in the 1690s (for you libertarians out there, there's substantial evidence that John Locke wrote some of the most-influential speeches in Parliament against renewing the Licensing Acts) and the sixteen years of consideration that led to the Statute of Anne in 1710.1 The Licensing Acts were thinly disguised government censorship: the ultimate problem with government patronage. That as conformist a group as the post-Glorious Revolution (1688) Parliament considered this enough of a danger to wrest control from government proxies and put it in the hands of the authors should be all the indication one needs of the problems with allowing government—whether an absolutist monarch, a representative democracy, or an anarcho-syndicalist collective (see, e.g., Le Guin's The Dispossessed)—to control the engines of Progress. For all of the problems with market-based solutions, they seem to as a group be better alternatives.