Intellectual Property (IP) is, in 2019, what a gold mine was in 1918. Technology companies of all stripes, pharmaceutical companies, media companies, and many others live or die by their intellectual property. Because of this it has become a litigeious business. Companies constantly sue other companies and individuals for IP theft, patent infringement, copyright infringement and a host of other related issues. 

What if, and this is only a what if – a thought experiment – not really a recommendation yet but what if we changed how we deal with IP in a way that ensured fair compensation for the IP owner but made it less litigious and more cooperative without discouraging creativity:

What if we regulated patents and copyright in such a way that anyone could use a patent or piece of copyrighted material, provided they paid a fare rate to do so? Those ‘fair rates’ would be negotiated between the government regulatory agency and representatives of the IP owners. In calculating the fair rate, the agency would take into account the dollar value of the IP, the overhead of the copyright holder, and the financial state of the person using the IP (how much can they reasonably afford ?

Some companies pay, or previously paid, a lot of money to own specific IP – whether we’re talking about Disney buying Lucas Film or Google buying a startup just to own the patents they hold. Those companies deserve to be compensated a more, at least until their current patents and copyrights expire and/or this new system has been around for a generation and radically changed the landscape. Some companies spend millions of dollars developing their IP and that should also be kept in mind when setting a fair price. 

At the same time, you can’t let the IP owner set the price alone because that would wind up solving nothing – IP owners could simply set the price too high for anyone to possibly afford it. So, federal negotiators need to sit down with them and decide what’s fair and reasonable – allowing the IP to be licensed but making sure that the IP owner isn’t paid so little that they are driven out of business. 

Under my imaginary system, IP owners could opt to take a percentage instead of a set fee. That percentage too would be set with the help of regulators. Taking a percentage would be an invitation to anyone who could improve upon or make money from your creation. 

So, a writer or publishing house could take previous work that didn’t sell very well and say “if anyone can turn this into a best seller, go ahead just send us 10%). 

A songwriter could say “I think this is a good song, play it if you want to, but if it’s a hit cut me a cheque”. 

A movie studio could flag films in its library that flopped and say “If you’d like to remake it, go ahead just send us our cut”. 

Inventors, scientific laboratories, universities and others could use it as a way to encourage others to take a risk, with both parties hoping for a reward. This invitation would be more appealing because the party taking the risk doesn’t have to lay out a large sum to start with. They only pay if they are successful. Again, this would completely optional for copyright holders. I’m not asking Marvel to put the X-Men under a Creative Commons license.

I’ve been trying to think of how this might actually work, and what some of the consequences and side effects might be. Without exclusive rights to their IP would some companies fold? I don’t know. Would it cool down investment in new technologies and medicines? I don’t know.  In both of these cases I think it would depend on where that fee was set. 

But, at first glance anyway and with unforeseen consequences remaining unseen, it could have some very positive outcomes. It would create more competition, especially in industries like tech and pharma. It would encourage artists, promote creativity and spread the wealth among all levels from corporate CEOs and Hollywood’s elite to struggling artists and inventors who work in the garage on Sundays. Who knows, maybe someone can make a better Google with the same tech? Maybe Netflix can make a really good Star Wars series, maybe there are great works of art hidden in the collections of amateur songwriters and the pile of scripts movie studios optioned but never made. 

Please share your thoughts and insights if you have any … 

p.s. Trademarks are kinda off the table. They are as exclusive to companies as your fingerprints are to you, and there is really no benefit in letting people borrow them.

p.p.s. I understand that certain technologies, such as weapons systems are too sensitive to share with anyone, for any amount of money. Classifying a patent as exclusive on national security grounds is valid.

p.p.p.s. Creators should be able to claim initial rights, so someone can’t take a leaked screenplay and make it before the creator.