Intellectual Property and Merit

Mark and I had an offline discussion about how intellectual property law (intended to reward innovators) can often be co-opted by large financial interests who have much more bargaining power.  The classic example is a band signing up for their first record deal -- there is a lot of pressure to sign with a label and the negotiations may be asymmetric unless the group has an amazing agent. 

In the same sense, Chris Dillow has a great piece on how many innovators were too far ahead of their time and never reaped the rewards of their innovation.  The classic example is Doug Engelbert:

Doug Engelbart, who invented the computer mouse, did not make much money from his invention because its patent expired in 1987, before the surge in demand for home comupters. This fact poses a problem for people daft enough to think that markets reward merit - because it's quite common for very meritorious people to fail simply by being ahead of their time.

He goes on to discuss a number of other examples in technology, music, and sports.  That this happens is, I think, quite clear unless the definition of innovation becomes aliased with the definition of marketing; if you do alias innovation with marketing (e.g. making the mouse computer tool popular and/or getting large companies interested in it) then it becomes rather unclear what the compelling government interest is.  Selling good ideas to large companies is its own reward and does not really need a government subsidy to continue to be a rewarding activity.  Creating a new drug or technology, on the other hand, is important and the compelling interest in making these things happen is much clearer. 

Now, this may be a straw man in the sense of market theory (as you can have rich and complex theories about how markets should reward merit and it is hard to easily generalize).  But I think it bears reflection in the sense of intellectual property.  In what sense are we motivating innovation with these laws and what is the right balance to strike.  That is a much more interesting line of discussion.