Arts and Inventions: Don't Undermine the Freedom to Create


Joseph Schuman
April 10, 2013
United States Constitution

One of the great things about this Internet age is how much of the world we can now access for free. One of the awful things about this Internet age is that consequently, we now expect nearly everything to be free -- be it the stories or music of a hardworking artist trying to earn a living from her or his talent or the fruits of an inventor's toil. Copyright and patent holders beware.

Best-selling author Scott Turow, modern master of the legal thriller and president of the Authors Guild, notes in the New York Times that the United States' founders had the foresight to write into the Constitution protections for such work and their subsequent societal and economic benefits. Article 1, Section 8 authorizes Congress "to promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries."

"The idea," Turow says, "is that a diverse literary culture, created by authors whose livelihoods, and thus independence, can't be threatened, is essential to democracy." One could say the same thing about patented inventions: A thriving culture of invention is built on the incentives that originate in the protected rights of inventors to profit from their ideas and what are often years of expensive research. And this idea is essential to a free economy.

Yet the digitization of written works, recorded music and video for years have made it easier to diminish or erase the value of an artist's work -- all under what Turow describes as "the cri de Coeur that 'information wants to be free.'" Similarly, entities that have an economic interest in devaluing patented technologies they'd rather cheapen or use for free, are working hard to weaken the patent system.

Don Rosenberg, general counsel at Qualcomm and an attorney who's spent decades using the law to nurture growth in technology, draws this alarming parallel:

In "The Slow Death of the American Author," Scott Turow bemoans the disregard of our Constitution's guarantee of rights to authors and the literary culture it encouraged and protected. Unfortunately, if we don't wake up soon we may have to add an elegy for the other constitutional right protected by Article 1 Section 8 clause 8: patents and inventions.

Just as commercial interests have distorted a system that rewarded authors for their original, creative output in order to shift profits to themselves, so too are commercial interests -- call them implementers or exploiters --trying to provoke a steady realignment of our system of rewards for inventors. And in both cases, these commercial interests have formed an unlikely partnership with those who misapply concepts of open standards, freedom of access and collaboration. Like the tragedy of the commons, this will end badly. When those who are inspired by genius and rewarded for creativity can no longer protect what they produce, new inventions will decline and there will be nothing left to exploit or collaborate on. As Qualcomm founder Irwin Jacobs once put it, we shouldn't strengthen this tendency to place short-term gain ahead of long-term innovation and economic growth or "we'll measure the cost by the bells that don't ring, the cures that are not developed and the technologies that aren't invented."