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You Need a Lot of Tools in Your Innovation Toolbox

· March 26, 2013

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Last week, Senators Hatch and Baucus wrote the U.S. Trade Representative to insist on strong IP protection in the Trans-Pacific Partnership.  Their letter contrasts with a statement made by the Indian representative at the WTO TRIPS Council last month, which argued:

“The technological progress even in the developed world had been achieved not through IP protection but through focused governmental interventions like compulsory licenses, cross licensing, government funding, and competition policy.”

Developed-nation policymakers and lawyers talking about IP too frequently embody the saying, “when the only tool you have is a hammer, everything looks like a nail.”  Intellectual property is an essential tool in the innovation toolbox, but innovation is not just about IP, any more than carpentry is just about hammering nails.

But IP lawyers aren’t carpenters.  We’re specialists: hammer-users, if you will, having particular expertise in one tool.  While carpentry requires multiple tools, the IP bar and many developed countries lose sight of the other tools in the toolbox, evangelizing hammers exclusively.

There are some logical explanations for “hammer evangelism.”  First, developed countries happen to be good at producing them.  Developing countries, on the other hand, often are not.  In addition, there are international institutions focused on promoting hammers, whose advocacy extends to celebrating World Hammer Day.  (There’s no World Jigsaw Day.)  Hammer manufacturers and hammer-using professionals — paid handsomely for their skillful hammering — gather at conferences with panels titled, “Beyond the Garage: Culinary Applications for the Hammer.”  Merely suggesting that a jigsaw might be better than a hammer in one application makes one suspect.  Who are these anti-hammer zealots?  Don’t they know you need a hammer to build a house?  Or do you want to live in a mud hut?  It should not be entirely surprising, therefore, that a developing country might sour on all this boorish hammer business, and go so far as to declare them unnecessary.

But some degree of IP protection is a necessary condition for innovation promotion.  The other items cited in the Indian statement are also crucial tools, however.  Competition policy is a crucial tool to promoting technology innovation.  As DisCo regularly points out, small entrants benefit from robust antitrust enforcement, but that policy needs to be carefully shaped to ensure that incumbents don’t distort the regulatory apparatus to suppress disruptive start-upsGovernment-supported R&D and compulsory licenses also have a place in the policymaking toolbox.

Even more important than the above is a robust protection for free expression, which a few IP-skeptical nations resist with more vigor than they do IP regulation.  (Ironically, the chief attraction of online IP enforcement to such nations may be that it provides a pretext to police online content.)   Absent strong protection for the free exchange of ideas, no nation can hope to compete in the networked global marketplace.  And recent developments in the IP space suggest that other tools in the toolbox can produce creativity, invention, and discovery, such as crowd-sourced patronage and prize systems.

I happen to be a hammer user myself.  I think hammers are cool, so much so that I teach others about them.  But we should not confuse necessity for sufficiency.  You need a lot of tools in your innovation toolbox.

Digital Trade

Companies rely on clear, predictable rules that facilitate digital trade to export their products and services around the world. These rules include balancing the competing interests between encouraging investment and enabling information access; promoting the free flow of information online; and maintaining balanced intermediary liability regimes.

Innovation

New technologies are constantly emerging that promise to change our lives for the better. These disruptive technologies give us an increase in choice, make technologies more accessible, make things more affordable, and give consumers a voice. And the pace of innovation has only quickened in recent years, as the Internet has enabled a wave of new, inter-connected devices that have benefited consumers around the world, seemingly in all aspects of their lives. Preserving an innovation-friendly market is, therefore, tantamount not only to businesses but society at large.

Intellectual Property

The Internet enables the free exchange of ideas and content that, in turn, promote creativity, commerce, and innovation. However, a balanced approach to copyright, trademarks, and patents is critical to this creative and entrepreneurial spirit the Internet has fostered. Consequently, it is our belief that the intellectual property system should encourage innovation, while not impeding new business models and open-source developments.