29 March 2013

Visiting a Foreign Country Without a Passport

Today's theme music:

  • Once in a while, a feline stops merely treating humans with disdain and expresses something that humans need to hear. (That's different, of course, from what the feline needs the human to hear.) This blawg's only feline friend the IPKat did just that today.

    And so the question—should we be rethinking our notions of employer-employee-contractor ownership of IP rights in light of these changes to labor market composition? After all, there is nothing cast in stone about our current arrangements regarding IP ownership, which can be seen as the product of the intersection of law and social policy in response to given historical circumstances. It has always been this Kat's understanding that the legal framework favoring employer ownership of employee works and inventions arose from the industrial model of organization that took hold in the 19th century. Whether those arrangements can be seen as benign or malign depends on your overall socio-economic view.

    Indeed, it seems reasonable to conclude that, if production had remained a matter of local cottage industries, the legal treatment of intellectual property ownership might well have been different. Nor is it inevitable that the employer will always have the permanent upper legal hand regarding IP ownership. It appears that the German system, which is particularly favorable to employees, derived from legal provisions enacted in the middle of World War II to encourage employee inventions. The upshot is that the status of employee/contractor/employer ownership of IP rights is a dynamic process, depending upon both time and place. Given this, what should we make of the decline in full-time employment and the concomitant rise in part-time and freelancing?

    "Is It Time to Rethink IP Ownership?" (IPKat, 29 Mar 2013).

    These are underasked questions. Let's leave aside, for the moment, the cognitive dissonance that arises from comparing the purpose of intellectual property — broadly, "innovation"; specific to US constitutional law, "promot[ing] progress in the useful arts and sciences" — and mandatory transfer of ownership of individual pieces of intellectual property to inherently noninnovative capital accretions (employers), whether by the work-for-hire doctrine or enforceable, customary assignments of rights enshrined in what passes for employment law. Let's also leave aside, for the moment, the incredulity that arises from a cold, harsh, context-sensitive appraisal of the terms of those transfers as they have become customary, both in expression-oriented and in idea-oriented intellectual property (generally, "copyright" and "patent" law, but it's not nearly that simple). That leaves a fundamental question that is even deeper than the two critical policy issues that this particular Kat's mewsings conclude with: Assume for the moment that the US Constitution's IP clause means what it says, says what it means, and accurately reflects the economic foundation of and justification for intellectual property... and that this economic foundation and justification are both necessary and sufficient conditions. Under that assumption, who is being incentivized, and what is being incentivized, when the default legal condition forces transfer of ownership of (or, at minimum, ownership of the most-critical aspects of) intellectual property to a noninnovative capital accretion? The obvious second-order question that arises, whatever the answer to that first question may be, is whether the answer to that first question is consistent with the statements of purpose.

    If your eyes are not sufficiently glazed over yet, perhaps a specific example will make sense. Consider the application of the American work-for-hire doctrine to the production of a film. Under the WFH doctrine, the patron is the author (17 U.S.C. § 201(b)); in this instance, it's an essentially mandatory transfer "as a part of a motion picture or other audiovisual work" because the industry — secure in the enforceability of its contracts — has made that an essentially nonnegotiable condition of obtaining compensation, aided and abetted by the abject failures of the unions purportedly representing the participant and especially the writers. So, that means that all innovation is incentivized only by the actual third-party-defined-in-advance terms offered to the actual innovators. Conversely, those third parties — the capital accretions, whether individual producers or production companies or the broader securities market or whatever — have budgets (and anyone who thinks H'wood is a land of excessive cost overruns should take a look at weapons procurement some time). Their incentive is to pay for no more innovation than is actually and absolutely necessary to their projection-from-past-experience income streams... and the farther the innovation gets from past projections, the less likely they are to compensate the innovators for that innovation based on mandated transfers of ownership. If one assumes perfectly rational actors, one ends up with an "innovation industry" dominated by barely distinguishable copies of other innovations; with stagnation; with a remarkably narrow definition of what constitutes an acceptable innovation; and, frankly, shock that there is as much innovation as there is. That sounds awfully close to H'wood as it is...

  • If you need any proof that as a whole even the innovation industries are living in the past, just consider the ridiculous tale of Adria Richards.

    I don't know whether what she did was right or not. I wasn't there. I didn't hear the joke that the guys in question allegedly told. What I do know is that for a member of the minority out-group, there is frequently no action that will be accepted as "right" if it includes the assertion that the majority did something offensive.

    (emphasis in original) Just about everyone involved is letting the past rule their reactions, and I'm not excluding the participants in this little contretemps. I shouldn't need to point out the irony of this sort of 1960s-Birmingham-steel-factory nonsense occurring at an innovation-oriented industry conference, but I almost certainly do. It's rather sad that treating others with respect is "innovation"...

    The corallary that many of us — as the "smart kid" in the class — have been through a version of this ourselves should have taught us differently indicates that "learning through experience" is insufficient should also be obvious without being said. But it isn't and it does.

  • Or connect everything to concepts of "the business of literature" based upon a past-worshipping restrictive definition of "literature" that excludes innovations in form and content. Don Quixote, 100 Years of Solitude, and The Lord of the Rings would be outside the "business of literature" as Mr Nash conceives it. That's not to say that his observations are invalid (often underinclusive, but at least he acknowledges that not all history of publishing is from/in the Anglo-American realm) — only that they are not universal.
  • As a thought experiment, connect the preceding items and infer the socioeconomic/racial/gender/religious/whatever status of the actual decisionmakers for each instance. What does that say about incentivizing innovation?