Chalk up another conservative legal scholar who’s skeptical of longer and stronger intellectual property laws. And in National Affairs!

In a broader essay on the relationship between technological progress and inequality, John McGinnis explains some of the drawbacks of the current copyright system and cautions that reformers need to be discriminating in their approach. First, he clarifies that intellectual property does not actually entail the ownership of ideas:

…  innovations are not really free. In our society, ideas are considered intellectual property — protected by patents and copyrights — and inventors and authors can and do charge for the use of that property. What this argument misses, however, is that only expressions of ideas are subject to intellectual-property laws; the ideas themselves are not. Once the idea of a big-box store or mobile telephony is introduced, it immediately enters the public domain. Our laws also limit protections even for expressions of ideas — requiring, for instance, that patents describing new ideas in detail be fully public in return for their protection, thereby providing the inspiration and foundation for further innovations. And even these limited protections expire; ultimately, the ideas become part of a common pool open to all.

McGinnis is mostly talking about material technology, and therefore patents, but it’s worth noting that in the case of copyright the difference between an idea and the expression of it can be more or less nonexistent. He concludes:

At first glance, it might seem like we need to strengthen intellectual-property laws in order to generate more innovation — but that intuition is almost certainly wrong. Excessive protections of intellectual property can actually decrease the rate of innovation. In Launching the Innovation Renaissance, George Mason University economist Alex Tabarrok notes that there has been a great deal of innovation in the field of fashion, where intellectual-property protections are very limited. By contrast, in some fields in which these protections are ample — such as software development — companies use patent litigation to prevent innovation by competitors. Of course, as Tabarrok notes, firms in some sectors — like the pharmaceutical industry — must invest huge sums in developing hard-to-discover products that are extremely easy to copy; they really do need the generous protections they currently have. This suggests the need for greater discrimination in the development and reform of intellectual-property laws to ensure that they promote optimal innovation.

McGinnis’s call for discrimination in determining which areas actually benefit from stronger protection is well taken, and I’m with him on the pharmaceutical industry. It seems unfair that patent protection begins when a drug is registered rather than when it’s approved for sale, because the patent holder doesn’t get to take advantage of exclusivity while the drug is undergoing clinical trials and the approval process. But in general McGinnis is making the same case Derek Khanna was making in the RSC’s retracted policy memo, and the case many others have been making for years–they aren’t opposed to the institution, they just think it’s overgrown.

Still, approaching copyright policy from the perspective of promoting “optimal innovation” does have its limitations, especially in the realm of copyright where such a thing is impossible to quantify.

Recent IP coverage at The American Conservative:

Sheldon Richman — “Patent Nonsense
Scott Galupo — “A Portrait of the Artist as a Young Vampire
Jordan Bloom — “Monopolies for Monks,” ”The Right Way to Fix Copyright

Follow Jordan Bloom on Twitter.