Against Intellectual Monopoly

Instead, in keeping with our odd tradition
of looking where our arguments have fewer chances of holding water, we
will try to make our point by looking at some less obvious industries - for
example, where imitation is cheap and there is lots of fierce competition.
World without Patent
    Historically, very few ideas and innovations have been rewarded with government protected monopolies. Although the Venetians introduced limited
patent protection to "accutissimi Ingegni, apti ad excogitar et trouar varij
Ingegnosi artificij"2 in 1474, this was an exceptional provision aimed at
attracting particularly skillful artisans and merchants from other states.
Such it remained for about a century and a half, with kings, princes, and
doges giving or taking away exclusive privileges as they saw fit either to
promote the economic vigor of the state or, more often, to promote the
financial well-being of their purse.
    It was English Parliament that, in 1623, pioneered patent law in its modern version with the aptly named Statute of Monopolies. At the time,
the euphemism "intellectual property" had not yet been adopted - that
a monopoly right and not a property right was being granted to innovators
no one questioned. Moreover, the act of Parliament introducing the statute
did not create a new monopoly. It took the power of granting monopoly
away from the monarchy (represented at the time by King James I) and
lodged it instead with Parliament. This basic fact is often missed in discussions over the role of patents in the economic development of the United
Kingdom. Before the statute was enacted, the royal power to sell monopolies (on either new or old products, it did not matter: think of the salt
monopoly) went completely unchecked and its use aimed at maximizing royal revenues. The economic incentives of innovators or, more generally,
of entrepreneurs were nobody's concern in issuing letters of patent.

    The statute, therefore, replaced the super-monopolistic power of expropriation and arbitrary grants of monopoly the Crown had enjoyed until
then, with the milder temporary monopoly actual inventors would receive
from Parliament. This, no doubt, represented progress in terms of private
property rights and incentives to private economic initiative. Further, the
range of products to which patent protection could and would be given
was greatly reduced, as it was restricted to actual inventions (that is, forget
the monopoly of salt) that satisfied the tight requirement that "they be not
contrary to the law nor mischievous to the state by raising prices of commodities at home, or hurt of trade, or generally inconvenient. ,3 Last but
not least:
    All Monopolies and all Commissions, Grants, Licenses, Charters and Letters Patent
heretofore made or granted or hereafter to be made or granted to any Person
or Persons, Bodies Politic or Corporate whatsoever, of, or for the sole Buying,
Selling, Making, Working or Using any Thing within this Realm ... or of any other
Monopolies, or of Power, Liberty or Faculty... are altogether contrary to the Laws
of this Realm, and so are and shall be utterly void and of none effect and in no wise
to be put into use or execution.4
    In current parlance, the Statute of Monopolies amounted to a gigantic
liberalization or deregulation of the British economy, which came together
with a strengthening of private property rights, a reduction of royal power,
and the establishment of restrictive -by current standards, extremely restrictive - criteria for patent grants. These historical facts are worth keeping in
mind vis-A-vis the frequent claims that the introduction of patent privileges in seventeenth-century England played a crucial role in spurring the
subsequent Industrial Revolution. The statute did not replace intellectual
competition with intellectual monopoly, as we are often led to believe, but
an indefinite and broad government monopoly with a definite and restricted
private monopoly. The second is a much lesser evil than the first, as it provides the innovator with both protection and economic incentives, whereas
before there was nothing but royal arbitrium and widespread monopoly.
    The Statute of Monopolies, in any case, defined the basic concept of
patents and allowed for the possibility of a fourteen-year monopoly provided that "they be not contrary to the law nor mischievous to the state
by raising prices of commodities at home, or hurt of trade, or generally