Against Intellectual Monopoly

widespread
and common as sand in the Sahara Desert.
    General design concepts, and even quite particular and specific ones, are
de facto not patentable. On the one hand, too many features of the design
of a useful object are dictated by utilitarian concerns; on the other hand,
even very minor ornamental variations are enough to make a certain design
different from the original one. Practically speaking, what this means is
that car companies imitate one another in shaping and styling their cars;
architects and engineers do the same with buildings and bridges, not to
speak of university halls; furniture makers copy one another's beds, sofas,
and coffee tables; lamp makers are continuously coming up with yet another
variation on the design of Artemide's Tizio; all tailleurs are copycats of
Chanel - and so on and so forth.
    Although design is not all that there is in a coat or in a sofa, it is more and
more the factor around which a competitive edge is built. Even the most
casual of observers can scarcely be unaware of the enormous innovation that
occurs in the clothing and accessories industry every three to six months,
with a few top designers racing to set the standards that will be adopted by
the wealthy first, and widely imitated by the mass producers of clothing for
the not-so-wealthy shortly after.19 And "shortly after," here, means really
shortly after. The now-worldwide phenomenon of the Spanish clothing
company Zara (and its many imitators) shows that one can bring to the
mass market the designs introduced for the very top clientele with a delay
that varies between three and six months. Still, the original innovators keep
innovating and keep becoming richer.
    The pace of innovation, the lack of artificial intellectual monopoly,
and the speed and ease of innovation in the fashion design sector is well documented by Kal Raustiala and Chris Sprigman. Once again, a picture is
worth a thousand words.

    What may be hard to read in the picture is the text of the "Steal" ad: it
advertises both its own price and the "Splurge" price. The splurge trench
coat, for example, costs $1,565 and the steal only $159.
    Similarly, in the fine arts, while individual works can be protected by copyright, methods, techniques, styles, and concepts cannot be patented. Varnedoe provides vivid documentation of the enormous inventive activity in the
modern figurative arts - and the equally rampant imitation that occurred
in that field - all in the complete absence of intellectual monopoly.20 His
discussion of widespread experimentation and imitation - by a variety of
artists - on the use of perspective is but one example. Finally, consider the
enormous growth of the contemporary stepbrother of the fine arts, advertising and marketing. The economic impact of advertising and marketing
are one or two orders of magnitude greater than that of the traditional
fine arts sector (though the borders have become more and more blurred
during the course of the past century). Also, in this sector, neither patents
nor copyrights play a relevant role. Still, and almost by definition, if there is
a sector of economic activity for which innovation and novelty are the key
factors, advertising is certainly the prime candidate.

Sports
    When examining the social merit of public institutions, a useful question
to ask is whether the same institutions are used in the private sector. For
example, government bureaucracies are widely thought to be inefficient. Yet
we observe, for example, in the very competitive information technology
industry, that IBM's internal bureaucratic structure has survived, and indeed
thrived, over many years. Hence, we have to conclude that it is likely that
bureaucracies do achieve some socially desirable goals.
    We can ask the same question about intellectual monopoly. If intellectual monopoly is a good idea in the public sector as a way to encourage
innovation, is it used in the private sector for that purpose? A case in point
is sports leagues. Typically, these leagues have near-absolute power over an
entire sport and the rules by which it is played; they also have full control
of the commercial part, and stand to benefit from anything that increases
demand for their product. Innovation is also important in sports, with such
innovations as the Fosbury flop in high-jumping, the triangle offense in
basketball, and of course the many new American football plays that are
introduced every