""In fantasy writing, accusations of copying are very difficult to make. You know who invented wizards? Who invented Goblins? If we were going to start paying royalties for nicking one another's ideas, we'd have all given our life savings to the Tolkien family a long time ago."
As I and others have said before, it is difficult to believe that JK Rowling, who has lavished such praise on the work of the folks behind the HP lexicon in the past, is behind the lawsuit. Creators, even those in the blockbuster category, rarely have complete control of the actions of commercial agents (and I use the term in the economics sense here to include publishers, film companies etc.) acting on their behalf. That's why it is useful, when thinking about the whole area of legal protection for creative and inventive endeavours, to separate out the three main sets of interests. Generally there are:
- the creators/inventors/artists/writers etc
- the commercial organisations engaged in finding commerically exploitable creative talent, production, aggregation and distribution (literary and talent agents, entertainment companies, manufacturers, broadcasters etc. - the whole gamut of commercial enterprises surrounding creative work) - maybe I should just call this the 'creativity business'
- the general public/consumers
In reality, balance in intellectual property regulation is not quite as simple as getting the IP regulatory landscape right for the supposed coincident interests of creators and the creativity business. (Not that even this could really be considered to be 'simple', if you just think, as Terry Pratchett says, of the need for new creators to have capacity to build on existing creative/inventive works, meaning those works can't be locked behind legal or other protective fences either too securely or for too long).
With three sets of agents (again thinking of 'agents' in the way an economist uses the term), each category itself incorporating a huge and diverse range of subsets each with its own unique interests, we need to deal with the reality that an optimal regulatory system for creators, even if it was possible to define such a thing, will be different to that for business interests, which in turn will be different to that for the general public.
We also need to recognise that whatever system we settle on, therefore, will be sub-optimal for at least two of our three categories of economic agents - whatever happens it will be a messy compromise which cannot, by definition, please everybody. Yet for the system to work and creativity, commercial and public access to thrive, the welfare of all three sets of agents need to be strongly protected. You could say, as Mark Rogers and I did in a paper for the World Economics Journal a few years ago, that societal welfare delivered by the intellectual property system will equal the weighted sum of benefits derived from the system by creators, agents and consumers.
Yet even if we could work out a model economic optimisation formula for the three generic sets of agents, we currently would not have the empirical evidence to run through the model in order to help create a picture of what an optimal IP system might look like. So yet again we're back to the need for some fundamental empirical research to be done in the area, which could then be usefully employed to inform policy; and get out from under the usual trading of rhetoric that passes for public debate in this widely misunderstood and really important area of public policy.
By the way, I'm a fan of the writings of both Pratchett and Rowling.