Economic Foundations of Intellectual Property Rights
| Autor | Joseph E. Stiglitz |
| Páginas | 31-55 |
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Anuario Andino de Derechos Intelectuales.
Año VIII - N.º 8. Lima, 2012
Economic Foundations
of Intellectual Property Rights*
JOSEPH E. STIGLITZ
Summary: Introduction. I. The role of intellectual property in innovation systems. A. Static ineffi-
ciency: knowledge as a public good. B. Dynamic costs. II. The innovation system. A. The patent
system. B. Prizes. C. A portfolio approach to innovation. Conclusion.
Introduction
My work in the economics of innovation began some forty years ago. I realized, as I
was beginning my work on the Economics of Information, that knowledge and information
are very similar.1 In fact, you can view information as a particular kind of knowledge, and
so the problems that I was analyzing at the time, such as how well the market economy deals
with information, corresponded to the question of how well the market economy deals with
knowledge. My work showed that the standard paradigm (the neoclassical model, which
argued that well-functioning markets solved all economic problems) just did not work when
information was imperfect and endogenous (that is, could be affected by what individuals
or firms did), and, by extension, when knowledge is endogenous (that is, when technology
is changing). Adam Smith’s theory argued that individuals in pursuit of their self-interest
(firms in pursuit of maximizing profits) were led as if by an invisible hand to the general
well-being of society.2 One of the important results of my work, developed in a number
of my papers, was that the invisible hand often seemed invisible because it was not there.3
* Originalmente publicado en Duke Law Journal Vol. 57, 2008. Se reproduce con expresa autorización del
autor.
1 See J.E. Stiglitz, Information and Economic Analysis, in CURRENT ECONOMIC PROBLEMS 27, 27–28
(J.M. Parkin & A.R. Nobay eds., 1975).
2 ADAM SMITH, AN INQUIRY INTO THE NATURE AND CAUSES OF THE WEALTH OF NATIONS
423 (Edwin Cannan ed., Modern Library 1937) (1776).
3 E.g., Bruce C. Greenwald & Joseph E. Stiglitz, Externalities in Economies with Imperfect Information and
Incomplete Markets, 101 QUART. J. ECON. 229, 230 (1986) (providing the basic theoretic analysis showing
that markets with incomplete risk markets and imperfect information are not (constrained) Pareto optimal,
that is, taking into account the costs of obtaining information or creating markets, there are government
interventions that can make some individuals better off without making anyone else worse off); Joseph
E. Stiglitz, The Invisible Hand and Modern Welfare Economics, in INFORMATION STRATEGY AND
PUBLIC POLICY 12, 15 (David Vines & Andrew Stevenson eds., 1991).
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ANUARIO ANDINO DE DERECHOS INTELECTUALES
MARCO JURÍDICO GENERAL
This led me to a certain degree of skepticism about the standard perspectives on
intellectual property. When I was at the Council of Economic Advisors4 we opposed
the Trade-Related Aspects of Intellectual Property Rights agreement (TRIPS), part of
the Uruguay Round of trade negotiations. Interestingly, so did the Office of Science and
Technology Policy. We were not alone in our opposition; indeed, it was a view held by
many, if not most, of the people who understood the issues. These views stood in contrast
to the views of most of the people who had some special interest on this issue, particularly
from the pharmaceutical and entertainment industries, who argued that the stronger the
intellectual property rights the better. When I went to the World Bank,5 I continued to be
involved in the issue. We had concluded that what separates developed and developing
countries is not just the disparity, the gap, in resources, but also the disparity in knowled-
ge, and closing that gap in knowledge is an essential part of successful development. We
had become concerned that TRIPS might make access to knowledge more difficult—and
thus make closing the knowledge gap, and development more generally, more difficult.
We also worried about the effects of TRIPS on access to life-saving medicines; TRIPS
attempted (successfully) to restrict access to generic medicines, putting these drugs out
of the financial reach of most in the developing countries. The World Bank has an annual
report called the World Development Report, which highlights a key development issue
every year. During the first year I was at the World Bank, we focused on the problems of
knowledge for development.6 That year’s report argued that TRIPS imposed an unbalanced
intellectual property regime.7
4 I served as a member of President Clinton’s Council of Economic Advisers from 1993 to 1997, and chair-
man and a member of the cabinet from 1995 to 1997.
5 I served as its chief economist and senior vice president from 1997 to 2000.
6 See THE WORLD BANK, WORLD DEVELOPMENT REPORT 1998/1999: KNOWLEDGE FOR DE-
VELOPMENT (1999), available at http://www-wds.worldbank.org/external/default/WDS ContentServer/
IW3P/IB/1998/11/17/000178830_98111703550058/Rendered/PDF/multi0page.pdf.
7 Id. at 33–36. One of my minor victories was that I anticipated the U.S. Treasury’s unhappiness with our
stance. At the meeting of the board of the World Bank where this was discussed, we welcomed India’s
criticism that we had not gone far enough in criticizing TRIPS. Right after the U.S. representative gave the
predictable speech about how we were “soft” on intellectual property and had to revise our report, India
spoke up, followed by a couple of other countries, saying how our report was in fact very unbalanced with
too much pro–intellectual property language. After their strong criticism, the United States decided not to
pursue the issue any more, lest they actually wind up with a report that was less favorable than the report
that we had written. The final document reflected our more balanced judgment.
Since then, the developing countries have further articulated their concerns. At the World Intellectual
Property Organization (WIPO), they have called for a Development Oriented Intellectual Property
Regime. See WIPO, Gen. Assembly, Proposal by Argentina and Brazil for the Establishment of a
Development Agenda for WIPO, WO/GA/31/11 (Aug. 27, 2004), available at http://www.wipo.int/
documents/en/document/govbody/wo_gb_ga/pdf/wo_ga_31_11.pdf. In a keynote address to the
Ministerial Conference on Intellectual Property for Least Developed Countries, World Intellectual
Property Organization, I further developed the case for a development oriented intellectual property
regime. Joseph E. Stiglitz, Keynote Address at the Ministerial Conference on Intellectual Property for
Least Developed Countries, World Intellectual Property Organization: Towards a Pro-Development
and Balanced Intellectual Property Regime (Oct. 25, 2004) (transcript available at http://www2.gsb.
columbia.edu/faculty/ jstiglitz/download/2004_TOWARDS_A_PRO_DEVELOPMENT.htm). Reso-
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