Summer Reading – Intellectual Property

For lawmakers on vacation, a day at the beach presents a plethora of possibilities. You can read a work of fiction (your political opponent’s autobiography), tinker around with a dangerously drooping beach umbrella, or down a greasy slice of boardwalk pizza. Each of these things would be unfathomable without the magic and majesty of intellectual property (IP) rights. Copyright laws ensure that authors can write about their (embellished) lives without someone else stealing the material and claiming it as their own. Patent protections give innovators the incentive to perfect beach umbrellas, along with all the unseen gadgetry within. And, trademark rights let consumers know that a franchise selling boardwalk pizza is in fact the business they claim to be. These various types of IP rights come in different forms with different applications, but they all have a pivotal role to play in supporting growth and innovation. And, unfortunately, they’re all under threat.

Patents are usually the go-to target for lawmakers and policymakers who fail to appreciate the importance of IP protections. For example, members of the Senate Judiciary Committee have repeatedly made the link between patents and drug prices. The argument is seductively simple (and of course wrong), alleging that drug makers have used “thickets” of patents that make it impossible for rivals to make any drug remotely similar to the one protected by IP. According to a 2016 analysis in the American Economic Review, the weakening of IP protections for medications leads to lower availability and delayed launch times for new drugs. The authors examined data on the “launches of 642 new molecules in 76 countries during 1983-2002” and found that, all else equal, “longer and more extensive patent protection strongly accelerated diffusion [of new drugs], while price regulation delayed it.” A more recent preliminary analysis by Princeton scholars confirms these findings. Government seizure of patents
“is associated with 5.10% decrease in innovation. Specifically, when the market share affected by compulsory licensing increases by 1%, patenting rates for the licensed disease decrease by 12.7% to 16.3%.” The Bayh-Dole Act of 1980, “allowed individuals and private institutions the ability to gain title for inventions whose creation involved federal funding... The Bayh-Dole Act sought to promote the successful commercialization of federally funded projects – and the law changed everything. In the two decades following its enactment, American universities’ rate of patent generation increased tenfold...The... Act provided for instances in which the government may counteract perceived private-sector abuses by exercising ‘march-in’ rights... NIST is now considering updates to march-in guidance that would place more weight on the pricing decisions [the government can] make... updates to march-in guidance could be used to impose back-door price controls on innovators.” The government
“marching-in” to seize patents would be a disaster for drug development, effectively drying up the pipeline for new and innovative treatments.

Policymakers should also be wary of regulation that claims to act in defense of IP protection, but in reality, chokes the development of new technologies to advance a political agenda. This conduct is most evident in certain proposals and public statements surrounding artificial intelligence (AI) and copyrighted content. For example, the Federal Trade Commission’s comment to the Copyright Office is essentially a catch-22 for AI companies, as it criticizes AI companies for training their models on copyrighted content without authorization, but at the same time condemns companies for engaging in data licensing deals. Other proposals, like the COPIED Act, would place onerous liability on developers and users of generative AI trained by publicly available and potentially copyrighted content. As some have noted, the bill disguises various mandates as voluntary technical standards, and places an unrealistic expectation that all content used to train an AI model must have explicit consent from its
creator. While it is important to ensure that the deployment of this technology does not result in an erosion of IP rights, policymakers ought to be wary of overcorrection that would erode other IP rights such as fair use.

Policymakers should stop exploiting IP laws and halt attempts to undermine protections for innovators. It’s easy to take intellectual property for granted during a doctor’s appointment, a (disappointing) ride on the streetcar, or a day at the beach. But, those experiences would all be far worse (or non-existent) without patents, copyrights, and trademarks.

BLOGS:

Monday: Grading The 2024 DNC Platform ([link removed])

Tuesday: TPA Submits Comments to the IRS Opposing Proposed Regulations on Business Partnerships ([link removed])

Wednesday: Patrick Hedger Speaks at Erick Erickson’s “The Gathering” ([link removed])

Thursday: Don’t Regulate Data Centers Out of Existence ([link removed])

Friday: Summer Reading: Intellectual Property ([link removed])

Media:

August 16, 2024: WBFF Fox45 Baltimore (Baltimore, Md.) quoted TPA in their story, “Timing of investigation into DPW heat safety practices under scrutiny.”

August 17, 2024: The American Spectator ran TPA's op-ed, "Don't Regulate Data Centers Out of Existence."

August 17, 2024: Florida Daily ran TPA's op-ed, "FDA Stuck in the Slow Lane."

August 18, 2024: WBFF Fox45 Baltimore (Baltimore, Md.) quoted me in their story, "Calls for accountability at DPW increase after employee's tragic death."

August 19, 2024: Heartland Daily News ran TPA's op-ed, "Postmaster General Louis DeJoy needs to face reality."

August 19, 2024: The Daily Pouch ran TPA's op-ed, "UK Vape Legislation State of Play – Part 1, The Tobacco and Vaping Bill."

August 19, 2024: Patrick Hedger appeared on the Ross Kaminsky Show on KOA (Denver, Co.) to discuss Kamala Harris' price control proposal.

August 19, 2024: WBFF Fox45 (Baltimore, Md.) interviewed me about keeping cell phones out of schools.

August 19, 2024: Patrick Hedger appeared on nationally syndicated Stacy on the Right (Sirius XM Patriot) to discuss Kamala Harris' price control proposal.

August 19, 2024: I appeared on WBFF Fox45 (Baltimore, Md.) to discuss the push for a taxpayer-funded DC United minor league stadium in Baltimore.

August 19, 2024: WBFF Fox45 (Baltimore, Md.) mentioned TPA in their article, "Waste Watch: The Cost of Moving D.C. United's Minor League To Baltimore."

August 22, 2024: Real Clear Markets ran TPA's op-ed, "Global Regulators Want To Hamstring AI Innovation."

August 22, 2024: I appeared on WBFF Fox45 (Baltimore, Md.) to discuss the DNC platform.

August 22, 2024: WBOB (Jacksonville, Fla.) interviewed me about the Democrats’ policy platform.

August 23, 2024: David McGarry appeared on the Job Creators Network podcast to discuss his Townhall op-ed on Kamala Harris' proposed price controls.

Have a great weekend!

Best,

David Williams
President
Taxpayers Protection Alliance
1101 14th Street, NW
Suite 1120
Washington, D.C. xxxxxx

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