Shakespeare's IP Issues

First, a thank you to readers Devin, Charles, and Sergey for their thought-provoking comments in reaction to my post on potatoes, plants, and innovation. Devin and Charles both raise interesting questions about the nature of the innovation ecosystem and the co-evolution of humans and food sources. Sergey, meanwhile, has happily lengthened my reading list. Thanks, guys: great stuff for further discussion.

Now to Shakespeare and those troublesome intellectual property issues. Tangled questions of patents, copyright, licenses, use restrictions, etc, inevitably pop up in most discussions of innovation these days. They have been high profile in the last few years because of Supreme Court cases and the well-chronicled ills of the music industry. Larry Lessig in particular has been at the forefront of these matters: to what extent should we allow copying and "mashups" in the production of new intellectual property?

I don't really have a hard and fast position on this either way, but I've been reading Bill Bryson's slim biography of Shakespeare and found it interesting that the golden age of Elizabethan drama was also marked by--and perhaps had its source in--constant copying and even outright theft. "To Elizabethan playwrights," says Bryson, "plots and characters were common property." Some of the greatest names in drama--Jonson, Shakespeare, Marlowe--were inveterate IP infringers.

The point, however, is not to diminish their achievements, but to show that this sharing was precisely a major reason for the period's flowering of creatity. Boundaries and rules were "exceedingly elastic" with the result that all of the strictures of classical drama were gleefully defenestrated. Strict divisions between comedy and tragedy, limits on dialogue, the prohibition on soliloquies--"Elizabethan playwrights refused to be bound by such rigidities." Without the falling away of these rules and the blurring of boundaries, "Shakespeare could never have become Shakespeare." (Bryson, by the way, is a phenomenal writer and I highly recommend his books to anyone.)

The idea that creativity and innovation result from the combining and recombining of old ideas is well-grounded in the research literature. (See in particular Dean Keith Simonton's work.) And, obviously, our time differs a great deal from the late sixteenth and early seventeenth centuries--many businesses and jobs depend on heightened protection of intellectual property. But the parallel is still instructive: should we choose to limit what people can do with others' ideas, we may miss out on great amounts of innovation. This is sort of the direction in which all of the much-heralded new social media points, as well as Tim's discussion of the jobs of the future.

There's no correct answer, of course, and it may be that muddling through turns out to be the best course. I have doubts, in any case, about the ability of any society to truly limit its members' creative drive.

Comments

[Michael F. Martin]

Ideas have to be differentiated well-enough to be distinct contributions before they can then be integrated back into a whole and wholly different work of art. It's a balancing act, but once the transactions costs are low relative to the gains from trade, delimiting property rights (even in intangibles) is still the best institutional mechanism we know for promoting growth, and probably for the same reason.

Recently, I came to a different perspective on copyright. The development of recording and reproduction technology is important on the human level not only because it makes getting the best performances cheaper, but because making the best performances cheaper means the demand for the second best performances dropped off like a cliff. Any enjoyment of music used to demand in-person performance, and the experience of performing and watching a live performance are quite different from the experience of listening to (even a worldclass) recording on an ipod.

Will the technology get good enough so that we can connect the same way electronically? I doubt it. I see a rebirth of a culture of live performance in the works as people begin to realize better and better what has been lost.

[geoff]

Among other things, I would just point out that modern copyright law would likely not prohibit the copying of "plots and characters." Patent and copyright are very different, and patent (of course) protects ideas; copyright only specific expressions of ideas. This permits an enormous amount of copying of the sort you seem to prefer, but less of the "mashups" that Lessig seems to want--although for the life of me I cannot figure out how the fate of the world hangs on a kid in Kansas being able to "mash" an Obama speech with a Jay-Z song.

[Charles Johnson]

The fate of the world may not hang on to a kid being able to "mash" an Obama speech with a Jay-Z song. (Good taste would seem to prevent it, though I'm sure you can find it online.)

The question of intellectual monopoly (i.e. patents) gets to the heart of how much growth can we have in an information, knowledge based economy. The optimists, of which I am one, see nothing but possibility and a continuum of property rights based upon paying fees to the government. The pessimists see reducing the standards of patents as akin to the Wild West. Don't know yet which one will win out, but I suspect it will be a bit of both. Interesting post, Dane. I would recommend Against Intellectual Monopoly as a good place to start for people. http://www.dklevine.com/general/intellectual/against.htm

(True to form, it is free online!)

[Sergey Kurdakov]

I think that here one of the question is - what are potential ways to improve the situation with inventions etc?

Some of them have no connection to patents.
For example - Kindle ( and future derivatives , maybe open (paid ) access to all scanned google books ) will enable people to combine quite a bit of ideas ( otherwise which would not be combined ).

another way is better communications in scientific community. Maybe near future 'telepresence' ) will make some significant differences in how scientific ideas are discussed and evolved.

and maybe important step should be some measurements how older expired patents, which are easily accessed, generate new approaches. Seems if all old international patents are well structured and discussions are organized then the effect might be seen.

Then if payoff to society proves to be significant - then talks on patent will have quite different tone.

so I see an evolutionary approach.
at least no one will loose in such way.

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Tim: As I wrote on my blog, Truth on the Market, I think Tyler is pretty far off base with this one. See http://www.truthonthemarket.com/2009/04/28/what-does-tyler-know-about-law-and-economics-anyway/

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