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September 20, 2007
IP in magic -- or is it magic in IP
First it was fashion, now it is magic. This week's Economist gives us a heads up about how IP works in the world of magic -- The capitalism of magic:
The traditional view is that IP can be protected only by the long arm of the law. But magicians rarely rely on the law, as the very act of describing what they want protected would reveal their secrets. Strong IP laws are supposed to be essential to encouraging innovation, but magicians are extremely innovative, constantly coming up with new tricks. To traditional students of the economics of innovation, this state of affairs seems as improbable as successfully sawing in half the beautiful assistant and then putting her back together again.
Now, the mystery has been solved: Jacob Loshin of Yale Law School has written a fascinating paper, “Secrets Revealed: How Magicians Protect Intellectual Property Without Law”. This will appear next year (out of thin air, presumably) in a book called “Law and Magic”.
According to Mr Loshin, magicians labour in what has come to be known as IP’s “negative space”: creative endeavours to which traditional legal protections of ideas do not apply. Fashion and haute cuisine are among several industries that share this negative space, the study of which has become a hot area in economics.
In fashion, it seems, top designers may not want to protect their IP. When their ideas are copied, they become passé. This in turn creates demand for new ideas from the top, and so on—a process known as “induced obsolescence”.
Magicians, by contrast, very much want to protect their IP, but not through a disclosure-based legal process. To do this, says Mr Loshin, the “magic community” has developed a “unique set of informal norms and sanctions for violators” that protect IP without resorting to the law. These allow magicians to maximise the amount of sharing of ideas and methods within their community, whilst minimising the exposure of their IP to the outside world of their customers.
In a working draft of the paper Secrets Revealed: How Magicians Protect Intellectual Property without Law available online, Loshin warns that this system may not last:
Norms may not always be a reliable savior to the woes of law. Consider the magic community’s imperative of controlling access to its common pool of magic secrets. Without controlling access, the magic community would be vulnerable to outsiders who could misappropriate secrets without being subject to the magic community’s norms. But the easy and growing availability of information on the internet makes it harder to control access than ever before. Wikipedia, for example, already explains the secrets to numerous tricks.
However, these norms seem to me to be rather stable. As Loshin points out, "popular" magic has been available to the public for a long time. It is the high art that is protected by group norms. And that high art is constantly evolving through group innovation.
Another important point is missed in this discussion, however. The value of an intangible asset is not just in the codified knowledge but in the tacit skill. The physics of the curve ball is well understood and commonplace for those who care to look it up. Being able to throw one against a major league hitter for a strike is still a relatively rare skill. Knowing how a magic trick is performed is very different from being able to carry off the illusion.
And even if the trick is understood, the magic of the performance can be intoxicating. After all, to go to a magic show is to suspend disbelief at the outset. Simply because we all know it is a trick does not necessarily lessen the astonishment.
Posted by Ken Jarboe at September 20, 2007 6:28 AM
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