In a time when unemployment seems to be stuck above nine percent, it’s not surprising that the debate over practically every public policy proposal seems to begin with the question, how will it affect jobs? Sometimes, as with government stimulus spending, the question makes sense: if we inject $X into the economy, Y jobs will be created. Other times, however, the jobs question seems quite tenuously connected to the policy under consideration. Nowhere is this clearer than recent debates over intellectual property. The jobs question has been raised over and over again by people on every side of the issue:
- The President has urged Congress to pass the Patent Reform Act (HR 1249/S 23) on the grounds that it will “help create good jobs.”
- The White House IP Czar has characterized the Administration’s enforcement efforts as all about protecting “jobs and our economy.”
- Proponents of the PROTECT IP Act (S 968), a genuinely awful bill for the reasons Derek has highlighted, have tried to deflect criticism of the bill’s innovation-squelching characteristics by focusing on its effect on jobs.
- Not to be outdone, the Computer and Communications Industry Association has tried to muster increased support for a strong fair use doctrine by highlighting—wait for it!—the fair use doctrine’s effect on jobs.
I understand the practical PR imperative of bending every available tool to the service of whatever position you’re promoting. When you’re trying to sell a policy proposal in an era of, say, high inflation, you’ll emphasize its tendency to contain prices. When you’re trying to sell a proposal in an era of high unemployment, you’ll stress its job-creating potential. (Or, if you’re against the policy, you’ll label it a “job killer,” as the National Association of Broadcasters did with the proposed performers’ rights bill).
Just because it is currently fashionable to say that IP proposals are all about jobs, however, doesn’t make it so. The jobs issue is ultimately tangential to the core concerns of intellectual property, which are spurring creative production and containing monopoly power. The proper balance between those competing concerns is difficult to maintain when the debate is artificially constricted in a way that marginalizes both of them. By framing the IP debate in terms of its effect on employment, partisans on both sides are enforcing a sort of tunnel vision that obscures the most salient issues and makes it harder for policy makers to judge the wisdom of their proposals.