At its recent fall conference, The IP Platform: Supporting Invention & Inspiration, the Center for the Protection of Intellectual Property (CPIP) at George Mason University School of Law explored the many ways in which intellectual property (IP) rights support and encourage creative innovation. The conference featured law professors, legal scholars, industry leaders, attorneys, musicians, and inventors, all demonstrating how patents, copyright, trademarks, and even trade secrets work in conjunction with one another to support creativity, scientific progress, and invention.
The conference kicked off with a panel on the music industry, which took a unique look at how intellectual property aids in the creative process from the conception of an idea to the final product. Matthew Barblan, Director of CPIP, set the tone by explaining how copyright is much more than a mere “incentive to create” or promise of fame and fortune. For many musicians—especially those juggling a musical career, a family, and other responsibilities—receiving a property right in the music they create is key to their ability to make ends meet and is essential if we expect them to be able to invest their time and resources into their music.
Songwriter Marc Beeson brought this narrative to life with a startling account of what it means to be a fulltime songwriter from a financial perspective. Beeson has led a successful career, writing hits for Billy Currington, Martina McBride, LeAnn Rimes, and many others. When a songwriter gets paid, it isn’t just for the 3-minute song we hear on the radio. Behind every hit, Beeson explained, there are “thousands of hours and hundreds of songs” that helped him get to that point. Intellectual property rights and the ability to generate income from those rights provides artists with the economic freedom it takes to devote that kind of time and effort. So when Beeson’s latest Number 1 single garnered 6 million streams on Pandora and amounted to a mere $120 in royalties, imagine his frustration.
Is this a sign that intellectual property rights have failed Marc Beeson and others like him? To the contrary, Beeson and Barblan discussed how intellectual property rights support and encourage an artist’s ability to invest in his or her craft, but weak IP rights yield weak results. However, it hasn’t always been this way. Beeson explained that in the 1990s, if you wrote a song that sold 1 million copies, you could expect to earn $60,000. Today, however, the way the public consumes music has changed dramatically, and the law hasn’t quite caught up.
Normally, when we think of music and intellectual property, we think about copyright—copyright in the sound recording, copyright in the musical composition, etc.—but that’s only half of the story. Sean O’Connor, professor at the University of Washington School of Law and a CPIP Senior Scholar, explained how patents have impacted the way music is made and enjoyed over the years.
O’Connor took to the stage, guitar in hand, and turned the auditorium into a concert hall. He walked us through the development of the instrument from the acoustic guitar of the early twentieth century to today’s electric guitars, demonstrating the strengths and limitations of each and how those limitations led to new patented innovation. It was the inability for large audiences to hear the quiet tone of the acoustic guitar that led an inventor to create a pickup to amplify the sound. The use of the pickup demonstrated to musicians that the hollow-body framework was no longer necessary, leading to the creation of solid-body electric guitars, and so on. As he played riffs and chord progressions, the message was clear: Copyright secures property rights in the music, but patented innovation in instruments like guitars makes much of the music possible.
David Kappos, former Director of the USPTO, was the conference’s keynote speaker. As the conference attendees discussed the day’s events over lunch, Kappos approached the podium to talk about innovation and interconnectedness. From a practical perspective, Kappos explained, IP-intensive industries make up a quarter of the jobs in U.S. These industries not only drive innovation, they also drive much of our economy.
Kappos showed us two photos: One from a crowd of people at Pope John Paul II’s funeral in 2005 and the other from a crowd at a speech by Pope Francis in 2013. In the photo from 2013, almost every person appears to be holding up a smartphone or tablet to record and take photos, while in 2005, there wasn’t a single person holding up a phone. “The internet of things,” he explained—made up of devices like smartphones, tablets, and smartwatches—“is our fourth industrial revolution.” As the two photos demonstrated, innovation is moving faster than ever, and through standards-based regimes and the interconnectedness of these devices, the way we communicate has forever changed.
IP skeptics argue that we do not need intellectual property rights in order to encourage innovation. Artists existed long before the copyright system, and inventors existed long before the patent system. Professor Stephen Haber of Stanford University added some historical context to help evaluate this argument. He explained that countries with high per capita income all tend to have one thing in common: Strong private property rights. Intellectual property rights, an important subset of private property rights, were established in the U.S. in the eighteenth century as a deliberate attempt to develop a modern economy. While there were inventors prior to the development of the patent system, Haber continued, the Patent Acts of 1790 and 1836 led to a significant increase in the number of inventions throughout a diverse set of industries.
If that wasn’t convincing enough, Garrett Brown—Oscar-winning inventor of the Steadicam camera stabilizer—shared his own narrative. Without intellectual property rights, would we have some of our most innovative creations? Brown didn’t think so. He set out to invent the Steadicam not only to improve the film industry, but to improve his own life and financial situation. Had he not been able to receive a property right to secure the value of his invention, Brown said that he would have stopped developing at a much earlier version of the camera—a version that was good enough to get the job done for himself, but certainly not the best, most marketable prototype, or one that he’d make available to the public. Brown isn’t alone in this line of thinking.
Terry Hart of the Copyright Alliance rebutted another common complaint, known as the “remix critique,” that every creation is to some degree a remix of existing things and that intellectual property, as it expands, further limits the ability to create by remixing. This critique overlooks the large “universe of authorized remixes” that are out there, capitalizing on the uniquely creative nature of remixing. These include retellings, like adaptations, remakes, and reboots, as well as new works based on previous works, like sequels, spinoffs, and mash-ups. Authorized remixes are common and benefit both the new creator and the original intellectual property owner alike.
Critics argue that intellectual property is bad for innovation in part because it allows for “monopolies” that prevent the public from using certain creations without permission for a period of time. As a preliminary matter, the use of the misleading scare-term “monopolies” to describe property rights in inventive and creative labor is clearly an attempt to skew the debate from the outset. After all, you wouldn’t call property rights in hard-copy creations, like the crops a farmer harvested, “monopolies” in those creations. Furthermore, if public access is the concern, a system that fails to provide inventors and creators the economic freedom to create things to market to the public in the first place will be far more harmful than a system that secures justly-earned property rights in inventors’ and artists’ productive labors.
CPIP went against the grain with this conference, and showed us, bit by bit, what our world might look like today without intellectual property rights. Music wouldn’t sound the same. Movies wouldn’t look the same. You wouldn’t be reading this on your smartphone or have access to the cutting-edge biopharma and healthcare products that you rely on. And some of our greatest artists and inventors might be so busy trying to make ends meet that they would never create the amazing artistic works and inventions that we all enjoy. In short, CPIP explored how intellectual property rights work together as a platform that enables us to innovate, share, and collaborate across industries to develop incredible new products and services at an astounding rate.