Afterword:

What the Author Really Thinks

Throughout this book, I’ve made an argument that is entirely practical. I think that it is right for organizations, whether non- or for-profit ones, to explore a range of intellectual property strategies because I believe it will help your organization achieve its own goals. I maintain that it’s more often the case that open strategies are the right idea for the long term and that full exclusion strategies will work over time only in certain circumstances. At no point in this book have I sought to convince you based on my views of what is best for society at large. My approach has been to suppress my personal opinions of what type of public policy we ought to adopt in matters of intellectual property.

If you’ve made it this far, I figure that it is only fair to say what I really think about intellectual property policy, independent of what might be good as a strategic matter for a given organization. So here goes.

At the most basic level, my view is highly conventional: I favor a balance between the rights of creators and the public. This balance ought to be set in such a way as to serve a series of occasionally conflicting interests. It also should ensure that creators are given adequate incentive to create, which means that they (“we,” I should say; I’m an author, for instance) are paid fairly for their work. Concurrently, this balance should be set in such a way as to ensure that the public has access to ideas and expression over time along with rights to make use of those ideas and expression in certain ways. Intellectual property policy should seek to promote innovation, fairness, and the public interest all at once.

To get one level more specific: I think our intellectual property law is today generally skewed too far in favor of creators and too little in favor of the public at large. There are a few areas where this skew is most apparent. I think the term for copyright in the United States is too long, especially after the Sonny Bono Copyright Term Extension Act. There is no need for a work to be subject to copyright for the author’s life plus seventy years in order to promote creativity and ensure fair compensation for artists. As a second example, I believe that the patent system ought to be reformed to improve the quality of certain types of patents and ensure the broad dissemination of lifesaving drugs.

Outside the public policy context, I believe that institutions—non- and for-profit organizations—tend to serve the public interest when they pursue strategies of openness rather than exclusion. This bias no doubt colors the strategic advice that I give in the book’s main text; it is for that reason that I point out the possibility of a conflict here. When a university makes its lectures or the works of its teachers broadly available online, people globally can benefit from this access to knowledge. When a public media outlet shares its documentaries and raw footage freely on the Web, we all benefit. When IBM or Microsoft engineers improve open-source code and contribute it to the commons, the world is better off. When generic drugs are sold at a low price to enable people suffering from AIDS to feel better or extend their lives, the benefits are obvious.

The business of intellectual property is about balance. The system needs to be calibrated such that there’s sufficient incentive for creative people to innovate and effective marketers to disseminate innovative things. Just as an organization’s approach to intellectual property ought to be about considering a range of options, so too should we think broadly and creatively about how the law of intellectual property evolves over time, in the public interest.