The Merges-Lemley

debate
JULY 6, 2018
Merges – Lemley
Debate
 The key readings

 Robert Merges, Justifying Intellectual Property – Chapter 1 (Introduction)

Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1924567;
 
 Mark Lemley, Faith-Based Intellectual Property, 62 UCLA L. REV. 1328 (2015).
Available at: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2587297
;
 
 Robert P. Merges, Against Utilitarian Fundamentalism, St. John's Law Review,
Vol. 90, No. 3, (2017) Available at
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2960712
 Merges’ argument

 “…..if we didn’t have a patent system, the evidence wouldn’t justify creating
one, but since we had one the evidence didn’t justify abolishing it.”
- Fritz Machlup

 “The vast empirical literature in the field generated since then has done much
to illuminate the wisdom of discrete practices and doctrines; but no one has
produced evidence sufficient to dislodge Machlup’s basic conclusion. At a
personal level, my interest (and belief) in efficiency led me to try to ground or
justify the entire field on this idea. My failure to do so, and the path opened
up by this failure, led me to write this book.”
Contd.

 “This is a truth I avoided over the years, sometimes more subtly

(for example, heavily weighing the inconclusive positive data,
showing IP law is necessary and efficient, discounting
inconclusive data on the other side), and sometimes less so
(ignoring the data altogether, or pretending that more solid data
were just around the corner). But try as I might, there was a
truth I could never quite get around: the data are maddeningly
inconclusive. In my opinion, they support a fairly solid case in
favor of IP protection but not a lock- solid, airtight case, a case
we can confidently take to an unbiased jury of hardheaded social
scientists.”
contd.

 “And yet, through all the doubts over empirical proof, my faith in the necessity and
importance of IP law has only grown. I seem to have a lot of company. Countless judges
begin their IP decisions with one or another familiar “stage setter” about how IP
protection exists to serve the public interest, often intoning one of a few stock
passages penned in a spare moment by Thomas Jefferson. But these utilitarian
platitudes quickly give way to doctrinal details, which often show the unmistakable
imprint of something more fundamental, something beyond utility— revealing, at the
end of the exercise, its real purpose and justification. That is, courts often wind up
talking about IP rights as rights. ….. make no mistake, the shift from social utility to
fundamental rights talk is an important one. For as we have learned from John Rawls,
Jeremy Waldron, and others before them (particularly Immanuel Kant), the hallmark
of a right is that social utility alone is not reason enough to override it. Waldron speaks
to this when he distinguishes handily between “mere interests” and true rights.”
 Merges’ theory of IP

 IP is property;

 Foundational principles – Merging Lockean appropriation,

Kantian individualism & Rawlisian attention to distributive
justice to justify IP on moral grounds rather than utilitarian
grounds:

 Midlevel principles – Efficiency, non-removal, proportionality &

dignity;
Lemley’s attack on ‘Faith based IP’

 “IP rights are a form of government regulation of the free market designed to
serve a useful social end—encouraging innovation and creation.;”

 “The problem isn’t that we don’t have enough evidence, or the right kind of
evidence. The problem is that the picture painted by the evidence is a
complicated one. The relationship between patents and innovation seems to
depend greatly on industry; some evidence suggests that the patent system is
worth the cost in the biomedical industries but not elsewhere.”
 Contd. – Ignoring evidence to justify
property as an end in itself
 “Participants on both sides of the IP debates are increasingly staking out
positions that simply do not depend on evidence at all. That is, their response
to evidence that doesn’t accord with their beliefs is not to question their
beliefs, or even to question the evidence, but to retreat to a belief system that
doesn’t require evidence at all. An example is Rob Merges at Berkeley, the
leading patent scholar of the last generation and the strongest voice for
economic analysis of the patent system.”
 “While one might think that the logical thing to do if the evidence doesn’t
support one’s theory is to question the theory, Merges instead observes that
“through all the doubts over empirical proof, my faith in the necessity and
importance of IP law has only grown.” IP rights, he decides, are Rights in the
moral sense: things to which people have some intrinsic entitlement that“
social utility alone is not reason enough to override.”
Contd. - Faith based IP?

 “Merges refers to his “faith” in IP law, and that is exactly the right word. I call
this retreat from evidence faith-based IP, both because adherents are taking
the validity of the IP system on faith and because the rationale for doing so is
a form of religious belief. The adherents of this new religion believe in IP.”
They don’t believe it is better for the world than other systems, or that it
encourages more innovation. Rather, they believe in IP as an end in itself—
that IP is some kind of prepolitical right to which inventors and creators are
entitled. Because that is a belief, evidence cannot shake it any more than I can
persuade someone who believes in the literal truth of the bible that his god
didn’t create the world in seven days. Sure, there may be geological and
archeological evidence that makes the seven-day story implausible. But faith
is not just ambivalent about evidentiary support; it is remarkably resistant to
evidentiary challenge.”
 Contd. – Cannot have a conversation with
faith based IP
 “But if you are one of the faithful, I probably haven’t persuaded you. The
psychology literature suggests that while people are willing to be corrected
about factual inaccuracies—things they think are true but are not—they are
essentially impervious to correction once the thing that turns out to be
untrue crosses the line into a belief. And that leads me to the last—and, to
me, most worrisome—problem with faith-based IP. If you are a true
believer, we have nothing to say to each other. I don’t mean by that that I am
giving up on you, deciding that you’re not worth my time to persuade.
Rather, I mean that we simply cannot speak the same language. There is no
principled way to compare one person’s claim to lost freedom to another’s
claim to a right to ownership. Nor is there a way to weigh your claim of
moral entitlement against evidence that the exercise of that right actually
reduces creativity by others.”
 The Indian debate

“if we are serious about democracy in the state then the first thing on our agenda
should be to give autonomy to writers and publications. They should be allowed
to criticize anybody legitimately and unmask the deeds of anybody. This will
enhance our democratic values. If on the one hand, we dilute the copyright laws
and on the other hand give them government patronage, this will amount to
buying the talent. People have died for the reason of money in the world; this
country’s writers will also prefer to drown themselves in the sea rather than
accept being slaves of the state.”
Ramdhari Singh Dinkar (M.P. Rajya Sabha)
Contd.

“…in the case of property, we do not permit people to charge any rent they like; in the
case of any industry, we do not permit the industrialists to make any prof t they like. We
restrict them. In society, the right of every individual is restricted, and likewise...the
rights of the authors, the rights of the painters, the rights of the artists and the rights of
the musicians should be restricted.”

“on its merits under a socialistic pattern of society and in the interest of advancement of
knowledge, especially when our country is going to have compulsory education and
adult education and the literary public is going to increase in large numbers, it is very
essential that we try to bring down the prices of books and restrict the profits of the
authors.”

Khemchand M.P (Rajya Sabha)

Contd.

 “I am certainly in full sympathy with the authors but they must take into
account the various other interests that are affected and the most important
interest is that of the society in general. The author does not exist in a
vacuum. The individuality of the genius does not express itself in isolation. In
protecting the interests of the authors, we should not forget the interests of
the society in general.
Minister of State for Education Shrimali Mukherjee
 IP & Public Policy
in
Historical Perspective
JULY 6, 2018
 Readings

 Susan Sell, Intellectual Property and Public Policy in Historical Perspective:

Contestation and Settlement, 38 Loy. L.A. L. Rev. 267 (2004); available at
http://digitalcommons.lmu.edu/cgi/viewcontent.cgi?article=2452&context=l
lr

 Lionel Bently, Copyright, Translations, and Relations between Britain and

India in the Nineteenth and Early Twentieth Centuries, 82 Chi.- Kent. L. Rev.
1181 (2007) available at
http://scholarship.kentlaw.iit.edu/cgi/viewcontent.cgi?article=3616&context
=cklawreview
 Prashant Reddy & Sumathi Chandrashekharan, Chapter 2 (p.36 to 54) &
Chapter 5 (p.115 to 152) of Create Copy Disrupt: India’s Intellectual Property
Dilemmas (2017)
 IP Policy depends on
a number of factors

 “Depending on the world in which one lives, piracy may be construed as theft
or as an important tool of public policy. Whether one is talking about books
or drugs, movies or software, the definition of what constitutes property
depends upon time, place, geography, constellation of interests, degree of
competition present, stage of economic development, and power. Insofar as
intellectual property is an instrument of public policy, all of these factors are
relevant.”

 IP is not fixed in time – keeps changing;

 How countries calibrate IP policies depending
on their national interests

 The Americans in the early 20th century had policies favouring domestic
inventors through various means;- confiscated patents in World War II;

 Germans and British did not recognize certain kinds of patents for chemicals
in the 19th and 20th century;

 India didn’t not recognize pharmaceutical patents from 1970 to 1995;

 Copyright policies are calibrated
differently across the world

 “Securing to myself from day to day the means of an honourable subsistence, I

would rather have the affectionate regard of my fellow men, than I would
have heaps and mines of gold. But the two things do not seem to me
incompatible. They cannot be, for nothing good is incompatible with justice;
there must be an international arrangement in this respect: England has done
her part, and and I am confident that the time is not far distant when America
will do hers. It becomes the character of a great country; FIRSTLY, because it
is justice; SECONDLY, because without it you never can have, and keep, a
literature of your own.”
Charles Dickens
 Copyright Policy in the US

 Known as the ‘international outlier’ in the world of copyright;

 Did not recognise international copyrights till 1891;

 Even then imposed restrictions such as domestic printing and copyright

registrations;
 Copyright in Independent India

 Property rights were being run over by Parliament in the name of

land reforms, nationalization etc.;

 Copyright law was surprisingly resilient despite a dedicated effort

by the government of the day to dilute copyright law in order to
facilitate access to knowledge;

 Indian authors in the Rajya Sabha put up a surprisingly fierce fight

against the government effort on the grounds that India would be
in violation of the Berne Convention;
The Minister & the Authors
A new education “One serious difficulty in the way of
introducing standard text-books, especially in
minister colleges, was the question of copyright…..we
had to translate the standard text-books
written in European languages. The stumbling
block in our way was the law and conventions
relating to copyright…We wanted these
Conventions to be amended so as to help
textbook production in developing countries.”
Chief Justice M.C. Chagla,
Roses in December (1974)
The International Crisis of Copyright
Law provoked by India and Africa

 India’s challenge to the Berne Convention at Stockholm in 1967;

 It won a major bout against the United Kingdom & the developing world
leading to major concessions for developing countries favoring an access
regime;

 Reduced copyright terms, compulsory licenses in exchange for just

compensation & absolute exceptions for educational & scholastic activities;
Indian govt. faces a huge backlash
from Indian authors
The Indian Govt. forced to retreat at
Paris in 1971
 Only 4 countries moved forward to implement the Stockholm
Protocol – India wasn’t one of them;

A revision conference in Paris in 1971 led to the replacement of

the Protocol with a Appendix that rolled back several gains in
lieu of a complicated CL system;

 An interesting example of how domestic politics rather than

international trade compulsions forced India to backtrack on a
significant international victory;
 The post nineties copyright champions

Copyright extension to 60 years 2012 amendments

Post TRIPS – The narrative in India begins to imitate
the free culture & A2K movement in the West –
America is now the villain

Image source: Spicyip.com

The trade aspect of IP
The seeds of TRIPS
 America’s crowbar
diplomacy forces India
to sign TRIPS
Carla Hills a.k.a ‘Crowbar Carla’
United States Trade Representative (USTR -
1989-1993)