In a Wikipedia age, should all ideas be free?

Contributors to open-source software can gain personally from enhanced reputations in their tightknit communities. Inventors may also rely on secrecy (Coca-Cola's unpatented formula has never been duplicated) or simply take advantage of competitive lead time – making a profit before copycats enter the market.

The US Patent and Trademark Office, overwhelmed by the large volume of applications that it receives every day, tends to err on the side of granting new patents and copyrights, shifting resolution of predictable disputes to trial lawyers and the courts.

The hard questions are: What kinds of ideas should be eligible for patent and copyright protection, and how long should that protection last?

One size doesn't fit all

What's needed is a middle ground. Even if we can all agree that intellectual property (IP) is an important social commodity, one size doesn't fit all in the modern Digital Age. While a 20-year monopoly may be appropriate for new drugs, it may not be appropriate for software, a new electronic game or, as Justice Sonia Sotomayor seemed to suggest during questioning in the Bilski case, a new "speed-dating service."

Rather than abolishing patent and copyright protection for some categories of intellectual property, Congress and the courts should consider varying the length for which exclusive monopoly privileges are granted, depending on the expected commercial vitality of the creative work.

It is certainly true that, as contemplated by the 1998 Sonny Bono Copyright Term Extension Act, the authors of books, Walt Disney characters, and computer software will not likely be deterred from being creative if their children or grandchildren are denied royalty payments.

Science and engineering is a different story.

Incentives matter. Although there may be a passionate few who don't require payment for contributing to the common pool of knowledge, technological advancement will be much more rapid if an explicit economic payoff is available.

William F. Shughart II, a senior fellow with The Independent Institute in Oakland, Calif., is the F.A.P. Barnard Distinguished Professor of Economics at the University of Mississippi.

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See also:

Opinion: The patent system: End it, don't mend it

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